1
DRAFT FORM OF INDENTURE
Exhibit T3C
PCI CHEMICALS CANADA COMPANY/SOCIETE PCI CHIMIE CANADA,
as the Issuer
PIONEER COMPANIES, INC.
IMPERIAL WEST CHEMICAL CO.,
KEMWATER NORTH AMERICA CO.,
PIONEER AMERICAS LLC,
PIONEER (EAST), INC.,
PIONEER WATER TECHNOLOGIES, INC.,
PIONEER LICENSING, INC.,
and
KWT, INC.,
as Guarantors
and
XXXXX FARGO BANK MINNESOTA, NATIONAL ASSOCIATION
as Trustee
------------------------
INDENTURE
Dated as of [*], 2001
-----------------------
$150,000,000
10% Senior Secured Guaranteed Notes due 2008
2
TABLE OF CONTENTS
Page
----
ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS OF
GENERAL APPLICATION
Section 101. Definitions.................................................................... 2
"Act"...................................................................................... 2
"Additional Amounts"....................................................................... 3
"Adjusted Net Assets"...................................................................... 3
"Administrative Agent"..................................................................... 3
"Affiliate"................................................................................ 3
"Agent Members"............................................................................ 3
"Allowed Other Secured Claim".............................................................. 3
"Allowed Secured Tax Claim"................................................................ 3
"Asset Sale"............................................................................... 3
"Asset Sale Offer"......................................................................... 4
"Asset Sale Offer Amount".................................................................. 4
"Asset Sale Offer Period".................................................................. 4
"Asset Sale Purchase Date"................................................................. 4
"Asset Sale Purchase Price"................................................................ 4
"Attributable Indebtedness"................................................................ 4
"Bankruptcy Code".......................................................................... 5
"Bankruptcy Court"......................................................................... 5
"Bankruptcy Law"........................................................................... 5
"Board of Directors"....................................................................... 5
"Board Resolution"......................................................................... 5
"Business Day"............................................................................. 5
"Canadian Act of Bankruptcy"............................................................... 5
"Canadian Bankruptcy Law".................................................................. 6
"Canadian Security Agreements"............................................................. 6
"Capital Stock"............................................................................ 6
"Capitalized Lease Obligation"............................................................. 7
"Cash Equivalents"......................................................................... 7
"Change of Control"........................................................................ 7
"Change of Control Date"................................................................... 8
"Change of Control Offer".................................................................. 8
"Change of Control Payment Date"........................................................... 8
"Change of Control Purchase Price"......................................................... 8
"Chapter 11 Cases"......................................................................... 8
"Closing Date"............................................................................. 8
"Code"..................................................................................... 8
"Collateral"............................................................................... 8
i
3
"Collateral Agent"......................................................................... 8
"Collateral Proceeds"...................................................................... 8
"Commencement Date"........................................................................ 8
"Commission"............................................................................... 8
"Common Security and Intercreditor Agreement".............................................. 9
"Company".................................................................................. 9
"Company Request".......................................................................... 9
"Confirmation Order"....................................................................... 9
["Consolidated Cash Flow Available for Fixed Charges"...................................... 9
["Consolidated Fixed Charge Coverage Ratio"................................................ 9
["Consolidated Income Tax Expense"......................................................... 10
["Consolidated Interest Expense"........................................................... 10
["Consolidated Net Income"................................................................. 10
"Consolidated Net Worth"................................................................... 10
"Corporate Trust Office"................................................................... 11
"covenant defeasance"...................................................................... 11
"Custodian"................................................................................ 11
"Default".................................................................................. 11
"Defaulted Interest"....................................................................... 11
"defeasance"............................................................................... 11
"Defeasance Redemption Date"............................................................... 11
"Defeased Securities"...................................................................... 11
"Depositary"............................................................................... 11
"Direction"................................................................................ 11
"Effective Plan Date"...................................................................... 11
"Eligible Investments"..................................................................... 11
"Environmental Claim"...................................................................... 12
"Environmental Law"........................................................................ 12
"Event of Default"......................................................................... 12
"Exchange Act"............................................................................. 12
"Excluded Holder".......................................................................... 12
"Existing Indebtedness".................................................................... 12
"Exit Facility"............................................................................ 12
"Exit Facility Provider"................................................................... 12
"Fair Market Value"........................................................................ 13
"Final Order".............................................................................. 13
"Fiscal Year".............................................................................. 13
"Funding Guarantor"........................................................................ 13
"GAAP"..................................................................................... 13
"Global Security".......................................................................... 13
"Guaranties"............................................................................... 13
"Guarantor"................................................................................ 13
"Guaranty"................................................................................. 13
"Guaranteed Obligations"................................................................... 13
"Hazardous Materials"...................................................................... 14
"Hedging Obligations"...................................................................... 14
ii
4
"Holder"................................................................................... 14
"including"................................................................................ 14
"incur".................................................................................... 14
"Indebtedness"............................................................................. 14
"Indenture Documents"...................................................................... 15
"Indenture Obligations".................................................................... 15
"Indenture Obligor"........................................................................ 16
"Independent Director"..................................................................... 16
"Insurance Proceeds"....................................................................... 16
"Intercreditor Collateral Account"......................................................... 16
"Interest Payment Date".................................................................... 16
"Investment"............................................................................... 16
"judgment currency"........................................................................ 16
"Lenders".................................................................................. 16
"Lien"..................................................................................... 16
"Loan Documents"........................................................................... 17
"Material Adverse Effect".................................................................. 17
"Maturity"................................................................................. 17
"MEIP"..................................................................................... 17
"Moody's".................................................................................. 17
"Mortgage"................................................................................. 17
"Mortgaged Property"....................................................................... 17
"Net Award"................................................................................ 17
"Net Income"............................................................................... 18
"Net Proceeds"............................................................................. 18
"New Common Stock"......................................................................... 18
"New Debt"................................................................................. 18
"New Other Secured Notes".................................................................. 18
"New Other Secured Notes And Claims"....................................................... 18
"New Tranche A Term Notes"................................................................. 18
"Obligor".................................................................................. 18
"Obligor Subsidiary"....................................................................... 18
"Officers' Certificate".................................................................... 18
"Old Debt"................................................................................. 19
"Opinion of Counsel"....................................................................... 19
"Opinion of Independent Counsel"........................................................... 19
"Organizational Documents"................................................................. 19
"Outstanding".............................................................................. 19
"Paying Agent"............................................................................. 20
"PCI"...................................................................................... 20
"Permitted Investments".................................................................... 20
"Permitted Issuance"....................................................................... 21
"Permitted Liens".......................................................................... 21
"Person"................................................................................... 22
"Physical Securities"...................................................................... 22
"Pioneer Companies"........................................................................ 22
iii
5
"Plan of Reorganization"................................................................... 22
"Post Petition Interest"................................................................... 23
"Power of Attorney"........................................................................ 23
"Predecessor Security"..................................................................... 23
"Qualified Equity Offering"................................................................ 23
"Quebec Mortgage and Security Agreement"................................................... 23
"Redemption Date".......................................................................... 23
"Redemption Price"......................................................................... 23
"Refinancing".............................................................................. 23
"Refinancing Indebtedness"................................................................. 23
"Regular Record Date"...................................................................... 23
"Related Business"......................................................................... 23
"Release".................................................................................. 24
"Restoration".............................................................................. 24
"Restricted Payment"....................................................................... 24
"S&P"...................................................................................... 24
"Safety and Health Laws"................................................................... 24
"Sale and Leaseback Transaction"........................................................... 24
"Securities"............................................................................... 24
"Securities Act"........................................................................... 24
"Security Documents"....................................................................... 24
"Security Register"........................................................................ 24
"Security Registrar"....................................................................... 24
"Senior Indebtedness"...................................................................... 24
"Special Record Date"...................................................................... 24
"Stated Maturity".......................................................................... 24
"Stock Pledge Agreement"................................................................... 25
"Subordinated Indebtedness"................................................................ 25
"Subordinated Obligations"................................................................. 25
"Subsidiary"............................................................................... 25
"Taxes".................................................................................... 26
"Term Loan Agreement"...................................................................... 26
"Term Loan Borrower"....................................................................... 26
"Transaction Documents".................................................................... 26
"Trust Indenture Act"...................................................................... 26
"Trust Moneys"............................................................................. 26
"Trustee".................................................................................. 27
"U.S. Government Obligations".............................................................. 27
"Voting Stock"............................................................................. 27
"Wholly-Owned Subsidiary".................................................................. 27
Section 102. [Intentionally omitted]............................................................. 27
Section 103. Compliance Certificates and Opinions................................................ 27
Section 104. Form of Documents Delivered to Trustee.............................................. 28
Section 105. Acts of Holders..................................................................... 28
iv
6
Section 106. Notices, etc., to Trustee, the Company and any Indenture
Obligor or Obligor Subsidiary. ................................................. 30
Section 107. Notice to Holders; Waiver........................................................... 31
Section 108. Conflict with Trust Indenture Act................................................... 31
Section 109. Effect of Headings and Table of Contents............................................ 31
Section 110. Successors and Assigns.............................................................. 31
Section 111. Separability Clause................................................................. 32
Section 112. Benefits of Indenture............................................................... 32
Section 113. Governing Law....................................................................... 32
Section 114. Legal Holidays...................................................................... 32
Section 115. Schedules and Exhibits.............................................................. 32
Section 116. Counterparts........................................................................ 32
Section 117. Communication by Holders with other Holders......................................... 32
Section 118. No Recourse against Others.......................................................... 33
ARTICLE TWO
SECURITY FORMS
Section 201. Forms Generally..................................................................... 33
Section 202. Legends............................................................................. 33
Section 203. Form of Face of Security............................................................ 34
Section 204. Form of Reverse of Securities....................................................... 36
Section 205. Form of Trustee's Certificate of Authentication..................................... 42
Section 206. Form of Guaranty of Each of the Guarantors.......................................... 42
ARTICLE THREE
THE SECURITIES
Section 301. Title and Terms..................................................................... 44
Section 302. Denominations....................................................................... 45
Section 303. Execution, Authentication, Delivery and Dating...................................... 45
Section 304. Temporary Securities................................................................ 46
Section 305. Registration of Transfer and Exchange............................................... 47
Section 306. Book-Entry Provisions for Global Security........................................... 48
Section 307. [Intentionally omitted.]............................................................ 49
Section 308. Xxxxxxxxx, Xxxxxxxxx, Lost and Stolen Securities.................................... 49
Section 309. Payment of Interest; Interest Rights Preserved...................................... 50
Section 310. Persons Deemed Owners............................................................... 51
Section 311. Cancellation........................................................................ 51
Section 312. Computation of Interest; Interest Act (Canada)...................................... 51
Section 313. Deposit of Moneys................................................................... 52
Section 314. CUSIP Number........................................................................ 52
v
7
ARTICLE FOUR
DEFEASANCE AND COVENANT DEFEASANCE
Section 401. Company's Option to Effect Defeasance or Covenant Defeasance........................ 52
Section 402. Defeasance and Discharge............................................................ 52
Section 403. Covenant Defeasance................................................................. 53
Section 404. Conditions to Defeasance or Covenant Defeasance..................................... 53
Section 405. Deposited Money and U.S. Government Obligations to Be Held
in Trust; Other Miscellaneous Provisions. ...................................... 55
Section 406. Reinstatement....................................................................... 56
Section 407. Repayment of the Company............................................................ 56
Article Five
REMEDIES
Section 501. Events of Default................................................................... 57
Section 502. Acceleration........................................................................ 59
Section 503. Other Remedies...................................................................... 60
Section 504. Waiver of Past Defaults............................................................. 61
Section 505. Control by Majority................................................................. 61
Section 506. Limitation on Suits................................................................. 61
Section 507. Rights of Holders to Receive Payment................................................ 62
Section 508. Collection Suit by Trustee.......................................................... 62
Section 509. Trustee May File Proofs of Claim.................................................... 63
Section 510. Priorities.......................................................................... 63
Section 511. Undertaking for Costs............................................................... 64
Section 512. Waiver of Stay, Extension or Usury Laws............................................. 64
ARTICLE SIX
THE TRUSTEE
Section 601. Notice of Defaults.................................................................. 65
Section 602. Certain Rights of Trustee........................................................... 65
Section 603. Trustee Not Responsible for Recitals, Dispositions of Securities
or Application of Proceeds Thereof. ............................................ 66
Section 604. Trustee and Agents May Hold Securities; Collections; etc............................ 66
Section 605. Money Held in Trust................................................................. 67
Section 606. Compensation and Indemnification of Trustee and Its Prior Claim..................... 67
Section 607. Conflicting Interests............................................................... 68
Section 608. Corporate Trustee Required; Eligibility............................................. 68
Section 609. Resignation and Removal; Appointment of Successor Trustee........................... 68
Section 610. Acceptance of Appointment by Successor.............................................. 70
vi
8
Section 611. Xxxxxx, Conversion, Consolidation or Succession to Business......................... 71
Section 612. Preferential Collection of Claims Against Company................................... 71
Section 613. Certain Duties and Responsibilities................................................. 71
ARTICLE SEVEN
HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY
Section 701. Company to Furnish Trustee Names and Addresses of Holders.......................... 72
Section 702. Preservation of Information; Disclosure of Names and Addresses of Holders.......... 72
Section 703. Reports by Trustee................................................................. 73
Section 704. Reports by Company and Guarantors.................................................. 73
ARTICLE EIGHT
CONSOLIDATION, MERGER,
CONVEYANCE, TRANSFER OR LEASE
Section 801. When Indenture Obligors May Merge, Etc............................................. 75
Section 802. Successor Substituted.............................................................. 76
ARTICLE NINE
SUPPLEMENTAL INDENTURES
Section 901. Supplemental Indentures and Agreements without Consent of Holders.................. 77
Section 902. Supplemental Indentures and Agreements with Consent of Holders..................... 79
Section 903. Execution of Supplemental Indentures and Agreements................................ 81
Section 904. Revocation Effect of Supplemental Indentures....................................... 81
Section 905. Conformity with Trust Indenture Act................................................ 81
Section 906. Reference in Securities to Supplemental Indentures................................. 82
ARTICLE TEN
COVENANTS
Section 1001. Payment of Principal, Premium and Interest......................................... 82
Section 1002. Maintenance of Office or Agency.................................................... 82
Section 1003. Compliance Certificate............................................................. 82
Section 1004. Taxes.............................................................................. 83
Section 1005. Jurisdiction, Service of Process and Venue Immunity; Judgment Currency............. 84
Section 1006. Limitation on Restricted Payments.................................................. 86
Section 1007. Limitations on Payment Restrictions Affecting Subsidiaries......................... 86
Section 1008. Limitations on Indebtedness........................................................ 87
vii
9
Section 1009. Asset Sales........................................................................ 90
Section 1010. Limitation on Sale and Leaseback Transactions...................................... 92
Section 1011. Limitation on Transactions With Affiliates......................................... 93
Section 1012. Limitation on Liens................................................................ 94
Section 1013. Corporate Existence; Corporate Separateness........................................ 95
Section 1014. Change of Control.................................................................. 95
Section 1015. Maintenance of Properties.......................................................... 98
Section 1016. Maintenance of Insurance........................................................... 98
Section 1017. Stock Pledge Agreements............................................................ 98
Section 1018. Money for Security Payments to be Held in Trust.................................... 99
Section 1019. [Redemption of Securities with proceeds of Qualified Equity Offering............... 100
Section 1020. Limitation on Ownership of Wholly-Owned Subsidiary Stock........................... 101
Section 1021. Impairment of Security Interest.................................................... 101
Section 1022. Amendment to Certain Agreements.................................................... 101
Section 1023. Plan of Reorganization............................................................. 102
Section 1024. Nature of Business, Organizational Documents and Capital
Structure and New Subsidiaries; Books and Records. ............................ 102
Section 1025. Compliance with Laws and Environmental and Safety and Health Matters............... 103
Section 1026. [Intentionally omitted]............................................................ 103
Section 1027. Authorizations; Performance of Obligations......................................... 103
Section 1028. Further Assurances................................................................. 103
Section 1029. Fiscal Year........................................................................ 104
Section 1030. Additional Amounts................................................................. 104
Section 1031. Pension Transfer Agreement......................................................... 105
ARTICLE ELEVEN
REDEMPTION OF SECURITIES
Section 1101. Rights of Redemption............................................................... 105
Section 1102. Applicability of Article........................................................... 106
Section 1103. Election to Redeem; Notice to Trustee.............................................. 106
Section 1104. Selection by Trustee of Securities to Be Redeemed.................................. 106
Section 1105. Notice of Redemption............................................................... 107
Section 1106. Deposit of Redemption Price........................................................ 108
Section 1107. Securities Payable on Redemption Date.............................................. 108
Section 1108. Securities Redeemed or Purchased in Part........................................... 108
Section 1109. Asset Sale Offers.................................................................. 109
ARTICLE TWELVE
SATISFACTION AND DISCHARGE
Section 1201. Satisfaction and Discharge of Indenture............................................ 111
Section 1202. Application of Trust Money......................................................... 112
viii
10
ARTICLE THIRTEEN
GUARANTY
Section 1301. Guaranty; Limitation of Liability.................................................. 113
Section 1302. Guaranty Absolute.................................................................. 114
Section 1303. Right to Demand Full Performance................................................... 115
Section 1304. Xxxxxxx and Acknowledgments........................................................ 115
Section 1305. The Guarantors Remain Obligated in Event the Company is No
Longer Obligated to Discharge Indenture Obligations. .......................... 116
Section 1306. Subrogation........................................................................ 117
Section 1307. Subordination...................................................................... 117
Section 1308. Continuing Guaranty; Assignments................................................... 119
Section 1309. Guaranty Is in Addition to Other Security.......................................... 119
Section 1310. Contribution....................................................................... 119
Section 1311. Trustee's Duties; Notice to Trustee................................................ 119
Section 1312. Release of Guaranty................................................................ 120
Section 1313. Execution of Guaranty.............................................................. 120
Section 1314. Payment Permitted by Each of the Guarantors if no Default.......................... 120
Section 1315. Notice to Trustee by Each of the Guarantors........................................ 121
Section 1316. Article Applicable to Paying Agents................................................ 121
Section 1317. Additional Guaranties.............................................................. 121
Section 1318. No Suspension of Remedies.......................................................... 122
ARTICLE FOURTEEN
CONDITIONS TO EFFECTIVENESS OF INDENTURE
Section 1401. Conditions Precedent to the Effectiveness of the Plan of Reorganization, etc....... 122
Section 1402. Implementation of Plan of Reorganization........................................... 122
ARTICLE FIFTEEN
SECURITY
Section 1501. Security........................................................................... 122
Section 1502. Recording; Priority; Opinions, Etc................................................. 123
Section 1503. Release of Collateral.............................................................. 124
Section 1504. Trust Indenture Act Requirements................................................... 124
Section 1505. Suits to Protect Collateral........................................................ 124
Section 1506. Determinations Relating to Collateral.............................................. 125
Section 1507. Trust Moneys....................................................................... 125
Section 1508. Power of Attorney for Collateral in Quebec......................................... 126
SCHEDULE 1 Existing Indebtedness
SCHEDULE 2 Existing Investments
ix
11
EXHIBIT A Form of Mortgage
EXHIBIT B Form of Common Security and Intercreditor Agreement
EXHIBIT C Form of Stock Pledge Agreement
x
12
Reconciliation and tie between Trust Indenture Act of 1939
and Indenture, dated as of [*], 2001
Trust Indenture Indenture
Act Section Section
----------- -------
Section 310(a)(1) .......... 608
(a)(2) .............. 608
(a)(3) .............. N.A.
(a)(4) .............. N.A.
(a)(5) .............. 607
(b) ................. 607, 609
(c) ................. N.A.
Section 311(a) ............. 612
(b) ................. 612
(c) ................. N.A.
Section 312(a) ............. 701, 702
(b) ................. 117, 702
(c) ................. 117, 702
Section 313(a) ............. 703
(b)(1) .............. 703
(b)(2) .............. 703
(c) ................. 703
(d) ................. 703
Section 314(a) ............. 704, 1003
[(b) ................ N.A.]
(c)(1) .............. 103
(c)(2) .............. 103
(c)(3) .............. N.A.
(d) ................. 103, 1503, 1504, 1507
(e) ................. 103
(f) ................. N.A.
Section 315(a) ............. 602, 613, 903
(b) ................. 601, 602, 903
(c) ................. 602, 903
(d) ................. 602, 903
(e) ................. 511
Section 316(a)(last sentence) 101 ("Outstanding")
(a)(1)(A) .................. 502, 505
(a)(1)(B) ........... 504
(a)(2) .............. N.A.
(b) ................. 507
(c) ................. 105
Section 317(a)(1) .......... 508
(a)(2) .............. 509
(b) ................. 1018
Section 318(a) ............. 310
N.A. means not applicable.________________________________
Note: This reconciliation and tie shall not, for any purpose, be deemed to be a
part of this Indenture.
13
INDENTURE, dated as of [*], 2001, (the "Indenture") among PCI
Chemicals Canada Company/Societe PCI Chimie Canada, an unlimited liability
company organized and existing under the laws of the province of Nova Scotia,
Canada (the "Company"), each Guarantor (as hereinafter defined) from time to
time a party hereto (the Company and the Guarantors party to this Indenture, and
their respective assigns and affiliates, shall be referred to herein as the
"Pioneer Companies") and XXXXX FARGO BANK MINNESOTA, NATIONAL ASSOCIATION, as
trustee (the "Trustee").
RECITALS OF THE COMPANY
1. The Pioneer Companies are successors to the debtors that commenced
the Chapter 11 Cases (as hereinafter defined) and the initial Holders of the
Securities on the date hereof (as each such term is hereinafter defined), prior
to the effectiveness of the Plan of Reorganization (as hereinafter defined),
together beneficially hold the Old Debt (as hereinafter defined).
2. Pursuant to the Plan of Reorganization and the implementation
thereof and upon the Plan of Reorganization becoming effective, the applicable
Pioneer Companies are willing and required (among other things) to remain
indebted to certain holders of the Old Debt by accepting the New Debt and to
issue the New Common Stock (as each such term is hereinafter defined) in
exchange for the cancellation and the extinguishment of the Old Debt by such
holders.
3. Such holders of the Old Debt are willing and required to accept the
New Debt and the New Common Stock upon such cancellation and extinguishment.
4. The New Debt comprises indebtedness represented by the New Tranche A
Term Notes (as hereinafter defined) and the Securities, and the Pioneer
Companies and the Trustee, on behalf of the holders of the Old Debt, wish to
enter into this Indenture to consummate that part of the exchange of Old Debt
for New Debt that relates to the issuance by the Company of the Securities
(guaranteed by the Guarantors jointly and severally) and to govern (for the
benefit of such Holders or any other Holders) the indebtedness assumed and
incurred hereby.
5. In accordance with the Plan of Reorganization and the implementation
thereof, the Company has duly authorized the creation of an issue of 10% Senior
Secured Guaranteed Notes due 2008 (the "Securities"), of substantially the tenor
and amount hereinafter set forth, and to provide therefor the Company has duly
authorized the execution and delivery of this Indenture and the Securities. The
Securities are referred to in the Plan of Reorganization as the New Tranche B
Notes.
6. Each Guarantor has duly authorized the issuance of its Guaranty (as
hereinafter defined) of the Securities, of substantially the tenor hereinafter
set forth, and to provide therefor, each Guarantor has duly authorized the
execution and delivery of this Indenture and its Guaranty.
14
7. This Indenture is subject to, and shall be governed by, the
provisions of the Trust Indenture Act (as hereinafter defined) that are required
to be part of and to govern indentures qualified under the Trust Indenture Act.
8. All things necessary have been done to make (i) the Securities, when
executed by the Company and authenticated and delivered hereunder and duly
issued by the Company, the valid obligations of the Company, (ii) their
respective Guaranties (as hereinafter defined), when executed and delivered by
each of the Guarantors, the valid obligation of such Guarantor, and (iii) this
Indenture a valid agreement of the Company and each of the Guarantors in
accordance with the terms of this Indenture.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase of
the Securities by the Holders thereof, it is covenanted and agreed, for the
benefit of each other and for the equal and proportionate benefit of the Holders
of the Securities issued under this Indenture, as follows:
Article One
DEFINITIONS AND OTHER PROVISIONS OF
GENERAL APPLICATION
Section 101. Definitions.
For all purposes of this Indenture, except as otherwise
expressly provided or unless the context otherwise requires:
(a) the terms defined in this Article have the meanings
assigned to them in this Article and include the plural as well as the singular;
(b) all other terms used herein which are defined in the Trust
Indenture Act, either directly or by reference therein, have the meanings
assigned to them therein;
(c) all accounting terms not otherwise defined herein have the
meanings assigned to them in accordance with GAAP;
(d) the words "herein," "hereof" and "hereunder" and other
words of similar import refer to this Indenture as a whole and not to any
particular Article, Section or other subdivision; and
(e) all references to $, US$, dollars or United States dollars
shall refer to the lawful currency of the United States of America.
"Act" is defined in Section 105 hereof.
2
15
"Additional Amounts" is defined in Section 1030 hereof.
"Adjusted Net Assets" means, with respect to any Guarantor, at
any date, the lesser of the amount by which (x) the Fair Market Value of the
property of such Guarantor exceeds the total amount of liabilities, including,
without limitation, contingent liabilities (after giving effect to all other
fixed and contingent liabilities incurred or assumed on such date, but excluding
liabilities under the Guaranty), of such Guarantor at such date and (y) the
present Fair Market Value of assets of such Guarantor at such date exceeds the
amount that shall be required to pay the probable liability of such Guarantor on
its debts (after giving effect to all other fixed and contingent liabilities
incurred or assumed on such date but excluding debt in respect of its Guaranty),
as they become absolute and matured.
"Administrative Agent" means [*], as the administrative agent
under the Term Loan Agreement, including each other Person as shall have
subsequently been appointed as the successor Administrative Agent pursuant to
the Term Loan Agreement.
"Affiliate" means, with respect to any specified Person, (i)
any other Person directly or indirectly controlling or controlled by or under
direct or indirect common control with such specified Person, (ii) any director
or controlling shareholder of such other Person, or (iii) any senior officer of
such specified Person or such other Person. For purposes of this definition,
"control" (including with correlative meanings, the terms "controlling,"
"controlled by" and "under common control with"), as used with respect to any
Person, means the possession, directly or indirectly, of the power to direct or
cause the direction of the management or policies of such Person, whether
through the ownership of voting securities, by agreement or otherwise; provided,
however, that beneficial ownership of [*]% or more of the voting equity
securities (or of warrants or other rights to acquire such voting equity
securities) of a Person shall be deemed to be control.
"Agent Members" is defined in Section 306 hereof.
"Allowed Other Secured Claim" has the meaning given to it in
the Plan of Reorganization.
"Allowed Secured Tax Claim" has the meaning given to it in the
Plan of Reorganization.
"Asset Sale" means, with respect to any Obligor or any Obligor
Subsidiary, the sale, lease, conveyance, transfer or other disposition
(including, without limitation, by way of merger or consolidation, and whether
indirectly or directly or by operation of law or otherwise) to any Person, other
than any Obligor or any Obligor Subsidiary, of any of such Obligor's or such
Obligor Subsidiary's assets (including, without limitation, (x) any sale, lease,
conveyance, transfer or other disposition of Capital Stock of any Obligor
Subsidiary, and (y) any sale, lease, conveyance, transfer or other disposition
of any non-cash consideration received by any Obligor or any Obligor Subsidiary
from any prior transaction or series of related transactions that constituted an
3
16
Asset Sale hereunder), whether owned on the date hereof or subsequently
acquired, in one transaction or a series of related transactions; provided,
however, that the following will not constitute an Asset Sale: (i) transactions
(other than transactions described in clause (y) above) in any calendar year
with aggregate cash and/or Fair Market Value of any other consideration received
(including, without limitation, the unconditional assumption of Indebtedness) of
less than $1,000,000; (ii) a transaction or series of related transactions that
results in a Change of Control; (iii) any sale of assets of any Obligor or any
Obligor Subsidiary or merger permitted pursuant to Article Eight hereof; (iv)
any sale or other disposition of inventory, property (whether real, personal or
mixed) or equipment that has become worn out, obsolete or damaged or otherwise
unsuitable or no longer needed for use in connection with the business of any
Obligor or any Obligor Subsidiary, as the case may be, in the good faith
determination of the Boards of Directors of PCI and the Company and so certified
to the Trustee; (v) any sale of inventory to customers in the ordinary and
customary course of business; (vi) sales of cash and cash equivalents in the
ordinary course of business, (vii) sales of assets Net Proceeds from which are
used within 180 days of such sale to purchase assets of similar value and
quality and business utility to those assets sold, provided that the aggregate
amount of Net Proceeds outstanding and pending reinvestment pursuant to this
clause (vii) shall not exceed $10,000,000 at any time; (viii) transfers
resulting from any casualty or condemnation of property or assets; and (ix) the
sale or discount of overdue accounts receivable in the ordinary course of
business, in connection with the compromise or collection thereof.
"Asset Sale Offer" is defined in Section 1009 hereof.
"Asset Sale Offer Amount" is defined in Section 1109 hereof.
"Asset Sale Offer Period" is defined in Section 1109 hereof.
"Asset Sale Purchase Date" is defined in Section 1109 hereof.
"Asset Sale Purchase Price" is defined in Section 1009 hereof.
"Attributable Indebtedness" means, with respect to any Sale
and Leaseback Transaction, as at the time of determination, the greater of (i)
the Fair Market Value of the property subject to such transaction, and (ii) the
present value (discounted at a rate equivalent to the Company's then current
weighted average cost of funds for borrowed money, compounded on a semi-annual
basis) of the total net obligations of the lessee for rental payments during the
remaining term of the lease (or the lease back in the case of a lease and
leaseback transaction) included in such arrangement (including any period for
which such lease has been extended). As used in the preceding sentence, the
"total net obligations of the lessee for rental payments" under any lease (or
any lease back in the case of a lease and leaseback transaction) for any such
period means the sum of rental and other payments required to be paid (including
any step-up in interest rate of any financing) with respect to such period by
the lessee thereunder excluding any amounts required to be paid by such lessee
on account of maintenance and repairs, insurance, taxes, assessments, water
rates or similar charges. In the case of any lease (or
4
17
any lease back in the case of a lease and leaseback transaction) which is
terminable by the lessee upon payment of a penalty, such net amount of rent also
includes the amount of such penalty, but no rent will be considered as required
to be paid under such lease subsequent to the first date upon which it may be so
terminated.
"Bankruptcy Code" means Title 11 of the United States Code, as
amended, or any similar United States federal or state law relating to
bankruptcy, insolvency, receivership, winding-up, liquidation, reorganization or
relief of debtors or any amendment to, succession to or change in any such law.
"Bankruptcy Court" means the United States Bankruptcy Court
for the Southern District of Texas, Houston Division, having jurisdiction over
the Chapter 11 Cases, or if such court ceases to exercise jurisdiction over the
Chapter 11 Cases, such other court or adjunct thereof that exercises
jurisdiction over the Chapter 11 Cases in lieu of the United States Bankruptcy
Court for such district.
"Bankruptcy Law" means the Bankruptcy Code, Canadian
Bankruptcy Law or any law of any other country or jurisdiction relating to
bankruptcy, insolvency, receivership, winding-up, liquidation, reorganization or
relief of debtors.
"Board of Directors" means, in respect of any Person, its
Board of Directors or equivalent body or any committee thereof duly authorized
to act on behalf of such Board of Directors or equivalent body in respect of
such matters as are referred to herein as requiring such action on behalf of
such Board of Directors or equivalent body.
"Board Resolution" of any corporation or entity means a copy
of a resolution certified by the Secretary or an Assistant Secretary or
equivalent officer of such corporation or entity to have been duly adopted by
the Board of Directors of such corporation or entity and to be in full force and
effect on the date of such certification and delivered to the Trustee.
"Business Day" means any day which is neither a Saturday or
Sunday nor a legal holiday on which banking institutions in The City of New York
or the city in which the Corporate Trust Office is located are authorized or
required by law or executive order to be closed.
"Canadian Act of Bankruptcy" means, with respect to any
Person:
(1) an admission in writing by such Person of its inability to
pay its debts generally as they become due;
(2) a general assignment by such Person for the benefit of its
creditors pursuant to the Bankruptcy and Insolvency Act (Canada);
(3) such Person becoming subject to any bankruptcy proceedings
in Canada which it is not contesting in good faith, diligently and by
appropriate means or which continue undischarged, unstayed or
undismissed for a period of 30 days;
5
18
(4) any application under any Canadian Bankruptcy Law to any
tribunal or authority for the purpose of suspending payment or
performance of any of the liabilities of such Person;
(5) a petition or application by such Person under any
Canadian Bankruptcy Law to any tribunal or authority for the
appointment of an administrator, receiver, trustee or intervenor for it
or for any substantial part of such Person's property;
(6) the commencement against such Person of any proceedings
(including a notice of intention or a proposal under the Bankruptcy and
Insolvency Act (Canada)) or any Canadian Bankruptcy Law, statute,
regulation or decree whether now or hereafter in effect in Canada,
relating to it or its debt, or to any reorganization, arrangement,
adjustment, dissolution or liquidation involving such Person, which
proceedings are not being contested in good faith, diligently and by
appropriate means or which continue undischarged, unstayed or
undismissed for a period of 30 days;
(7) the bankruptcy of such Person within the meaning of the
Bankruptcy and Insolvency Act (Canada), or any successor or equivalent
legislation; or
(8) any act by such Person signifying its consent to, approval
of, or acquiescence in any bankruptcy, reorganization or insolvency
proceeding in Canada under any law relating to bankruptcy, insolvency
or relief of debtors or any proceeding for the appointment of a
receiver or trustee for itself or for any substantial part of its
property where such receiver or trustee remains undischarged for a
period of 30 days.
"Canadian Bankruptcy Law" means the Bankruptcy and Insolvency
Act (Canada), the Companies' Creditors Arrangement Act (Canada), the Winding-Up
and Restructuring Act (Canada), or any similar Canadian federal or provincial
law relating to bankruptcy, insolvency, receivership, winding-up, liquidation,
reorganization or relief of debtors, each as amended or changed.
"Canadian Security Agreements" means a general security
agreement and deed of hypothec charging all of the personal and movable
property of PCI Chemicals Canada Company/Societe PCI Chimie Canada any other
Obligor having property, assets or any place of business or office in Canada.
"Capital Stock" means, with respect to any Person, any common
stock, preferred stock and any other capital stock of such Person and shares,
interests, participations or other ownership interest (however designated), of
any Person and any rights (other than debt securities convertible into, or
exchangeable for, capital stock or such other ownership interests), warrants,
options or other rights to purchase any of the foregoing, including each class
of common stock and preferred stock of such Person if such Person is a
corporation and each general and/or limited partnership interest of such
6
19
Person if such Person is a partnership and/or limited liability company interest
of such Person if such Person is a limited liability company.
"Capitalized Lease Obligation" means Indebtedness represented
by obligations under a lease that is required to be capitalized for financial
reporting purposes in accordance with GAAP and the amount of such Indebtedness
shall be the capitalized amount of such obligations determined in accordance
with GAAP.
"Cash Equivalents" means, (i) any evidence of Indebtedness
with a maturity of one year or less from the date of acquisition issued or
directly and fully guaranteed or insured by the United States of America or any
agency or instrumentality thereof (provided that the full faith and credit of
the United States of America is pledged in support thereof); (ii) certificates
of deposit or acceptances with a maturity of one year or less from the date of
acquisition of any financial institution that is a member of the Federal Reserve
System having combined capital and surplus and undivided profits of not less
than $250,000,000; (iii) commercial paper with a maturity of one year or less
from the date of acquisition issued by a corporation that is not an Affiliate of
the Company organized under the laws of any state of the United States of
America or the District of Columbia and rated at least "A-1" by S&P or at least
"P-1" by Xxxxx'x or at least an equivalent rating category of another nationally
recognized securities rating agency; (iv) any money market deposit accounts
issued or offered by a domestic commercial bank having capital and surplus in
excess of $250,000,000; and (v) repurchase agreements and reverse repurchase
agreements relating to marketable direct obligations issued or unconditionally
guaranteed by the government of the United States of America or issued by any
agency thereof and backed by the full faith and credit of the United States of
America, in each case maturing within one year from the date of acquisition;
provided that the terms of such agreements comply with the guidelines set forth
in the Federal Financial Agreements of Depository Institutions With Securities
Dealers and Others, as adopted by the Comptroller of the Currency on October 31,
1985.
"Change of Control" means the occurrence of any of the
following: (i) a "person" or "group" (as such terms are used in Sections
14(d)(2) and 13(d)(3), respectively, of the Exchange Act) is or becomes the
"beneficial owner" (as defined in Rule 13d-3 under the Exchange Act) of at least
35% of the outstanding voting power of the fully diluted Voting Stock of PCI or
the Company, (ii) the adoption of a plan relating to the liquidation or
dissolution of PCI or the Company, (iii) the merger or consolidation of the
Company or PCI, taken individually or on a consolidated basis with its
Subsidiaries, with or into another corporation with the effect that the
stockholders of PCI or the Company immediately prior to such merger or
consolidation cease to be the "beneficial owners" (as defined in Rule 13d-3
under the Exchange Act) of 35% or more of the combined voting power of the
securities of the surviving corporation of such merger or the corporation
resulting from such merger or consolidation ordinarily (and apart from rights
arising under special circumstances) having the right to vote in the election of
directors outstanding immediately after such merger or consolidation or (iv)
during any period of two consecutive calendar years, individuals who at the
beginning of such period constituted the Board of Directors of PCI or the
Company (together with any new directors whose election by the Board of
Directors of PCI or the Company, or whose
7
20
nomination for election by the shareholders of PCI or the Company, was approved
by a vote of a majority of the directors then still in office who either were
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 directors of PCI or the Company then in office. Notwithstanding
the foregoing, a Change of Control shall not be deemed to have occurred under
clause (iii) above solely as a result of a merger or consolidation of the
Company with or into PCI provided that such merger or consolidation is permitted
under Article Eight of this Indenture.
"Change of Control Date" is defined in Section 1014 hereof.
"Change of Control Offer" is defined in Section 1014 hereof.
"Change of Control Payment Date" is defined in Section 1014
hereof.
"Change of Control Purchase Price" is defined in Section 1014
hereof.
"Chapter 11 Cases" means each and all of the cases under
Chapter 11 of the Bankruptcy Code commenced by Pioneer Companies, Inc., Pioneer
Corporation of America, Imperial West Chemical Co., Kemwater North America Co.,
PCI Chemicals Canada Inc./PCI Chimie Canada Inc., Pioneer Americas, Inc.,
Pioneer (East), Inc., Pioneer Water Technologies, Inc., Pioneer Licensing, Inc.
and KWT, Inc., and styled In re Pioneer Companies, Inc. et al, Chapter 11 Case
No. 01-38259-H3-11 Jointly Administered.
"Closing Date" means the date of consummation of the initial
offering of the Securities.
"Code" means the United States Internal Revenue Code of 1986,
as amended, reformed or otherwise modified.
"Collateral" means all of the property and assets of each
Obligor and Obligor Subsidiary now existing or hereafter acquired which secures
the Securities (other than collateral subject to the Lien of the Exit Facility)
and as otherwise defined in the Security Documents.
"Collateral Agent" means [*], as collateral agent under the
Common Security and Intercreditor Agreement, and any successor thereto.
"Collateral Proceeds" has the meaning specified in Section
1009 hereof.
"Commencement Date" is defined in Section 1109 hereof.
"Commission" means the United States Securities and Exchange
Commission, as from time to time constituted, created under the Exchange Act or
if at any time after the execution of this Indenture such Commission is not
existing and performing the duties now assigned to it under the Trust Indenture
Act, then the body performing such duties at such time.
8
21
"Common Security and Intercreditor Agreement" means the Common
Security and Intercreditor Agreement, dated as of [*] 2001, by and among the
Indenture Obligors and others, the Administrative Agent (for itself and for the
benefit of the Lenders), the Collateral Agent, the Trustee (for itself and for
the benefit of the Holders of the Securities), substantially in the form of
Exhibit B attached hereto, and as may be amended, supplemented, amended and
restated or otherwise modified from time to time.
"Company" is defined in the preamble hereto, and includes each
other successor thereto.
"Company Request" or "Company Order" means a written request
or order signed in the name of the Company by any one of its Chairman of the
Board of Directors, its President or a Vice President (regardless of vice
presidential designation), and by any one of its Treasurer, an Assistant
Treasurer, its Secretary or an Assistant Secretary, and delivered to the
Trustee.
"Confirmation Order" means the order of the Bankruptcy Court
confirming the Plan of Reorganization pursuant to Section 1129 of the Bankruptcy
Code.
["Consolidated Cash Flow Available for Fixed Charges" of any
Person means for any period the Consolidated Net Income for such period
increased by the sum of (i) Consolidated Interest Expense of such Person for
such period, plus (ii) Consolidated Income Tax Expense of such Person for such
period, plus (iii) the consolidated depreciation and amortization expenses
included in the income statement of such Person for such period, plus (iv) other
non-cash charges of such Person for such period deducted from consolidated
revenues in determining Consolidated Net Income for such period, minus (v)
non-cash items of such Person for such period increasing consolidated revenues
in determining Consolidated Net Income for such period.]
["Consolidated Fixed Charge Coverage Ratio"of any Person means
for any period the ratio of (i) Consolidated Cash Flow Available for Fixed
Charges of such Person for such period to (ii) the sum of (A) Consolidated
Interest Expense of such Person for such Period, plus (B) the annual interest
expense (including the amortization of debt discount) with respect to any
Indebtedness proposed to be incurred by such Person or its Subsidiaries, plus
(C) the annual interest expense (including the amortization of debt discount)
with respect to any other Indebtedness incurred by such Person or its
Subsidiaries since the end of such period to the extent not included in clause
(ii)(A) above, minus (D) Consolidated Interest Expense of such Person to the
extent included in clause (ii)(A) with respect to any Indebtedness that will no
longer be outstanding as a result of the incurrence of the Indebtedness proposed
to be incurred; provided, however, that in making such computation, the
Consolidated Interest Expense of such Person attributable to interest on any
Indebtedness bearing a floating interest rate shall be computed on a pro forma
basis as if the rate in effect on the date of computation had been the
applicable rate for the entire period; provided, further, that in the event such
Person or its Subsidiaries has made Asset Sales or acquisitions of assets which
are permitted pursuant to the terms and provisions of this Indenture (including
acquisitions of other Persons by merger, consolidation or purchase of Capital
Stock) during or after such
9
22
period, such computation shall be made on a pro forma basis as if the Asset
Sales or acquisitions had taken place on the first day of such period.]
["Consolidated Income Tax Expense" of any Person means for any
period the consolidated provision for income taxes of such Person for such
period calculated on a consolidated basis in accordance with GAAP.]
["Consolidated Interest Expense" for any Person, means for any
period the consolidated interest expense included in a consolidated income
statement (without deduction of interest income) of such Person for such period
calculated on a consolidated basis in accordance with GAAP, including, without
limitation or duplication (or, to the extent not so included, with the addition
of), (i) the amortization of debt discounts, (ii) any payments of fees with
respect to letters of credit, bankers acceptances or similar facilities, (iii)
fees with respect to interest rate swap or similar agreements, or foreign
currency hedge, exchange or similar agreements, and (iv) the portion of any
rental obligations allocable to interest expense.]
["Consolidated Net Income" means, for any period, and as to
any Person, the aggregate Net Income of such Person and its Subsidiaries for
such period determined in accordance with GAAP; provided that (i) the Net Income
of any Person which is not a Subsidiary of such Person but which is consolidated
with such Person or is accounted for by such Person by the equity method of
accounting will be included only to the extent of the amount of cash dividends
or cash distributions paid to such Person or a Wholly-Owned Subsidiary of such
Person, (ii) the Net Income of any Person acquired by such Person or a
Subsidiary of such Person in a pooling of interests transaction for any period
prior to the date of such acquisition will be excluded, (iii) the Net Income of
any Subsidiary of such Person that is subject to restrictions, direct or
indirect, on the payment of dividends or the making of distributions to such
Person will be excluded to the extent of such restrictions, (iv) the Net Income
of any Subsidiary less than 80% of whose securities having the right (apart from
the right under special circumstances) to vote in the election of directors are
owned by PCI, the Company or their respective Wholly-Owned Subsidiaries will be
included only to the extent of the amount of cash dividends or cash
distributions actually paid by such Subsidiary to PCI, the Company or a
Wholly-Owned Subsidiary of the Company or PCI, (v) all extraordinary gains and
losses, and any gain or loss realized upon the termination of any employee
pension benefit plan, in respect of dispositions of assets other than in the
ordinary course of business and any one-time increase or decrease to Net Income
which is required to be recorded because of the adoption of new accounting
policies, practices or standards required by GAAP (together, in each case, with
any provision for taxes) will be excluded, and (vi) all amounts of "other
income, net" classified as such on one or more lines of such Person's statement
of operations, in accordance with GAAP, net of applicable income taxes, will be
excluded from such Person's aggregate Net Income.]
"Consolidated Net Worth" means, for any Person, the total of
the amounts shown on the balance sheet of such Person and its Subsidiaries,
determined on a consolidated basis without duplication in accordance with GAAP,
as of the end of the most recent fiscal quarter of such Person ending at least
forty-five (45) days prior to the
10
23
taking of any action for the purpose of which the determination is being made,
as (i) the amount of Capital Stock plus (ii) the amount of surplus and retained
earnings (or, in the case of a surplus or retained earnings deficit, minus the
amount of such deficit).
"Corporate Trust Office" means the office of the Trustee or an
affiliate or agent thereof at which at any particular time the corporate trust
business for the purposes of this Indenture shall be principally administered,
which office at the date of execution of this Indenture is located at [Sixth
Street and Marquette Avenue, Minneapolis, Minnesota 55479], Attention: [Xxxxxxx
X. Xxxxxx, General Counsel].
"covenant defeasance" is defined in Section 403 hereof.
"Custodian" means any receiver, trustee, assignee, liquidator
or similar official under any Bankruptcy Law.
"Default" means any event which is, or after notice or passage
of any time or both would be, an Event of Default.
"Defaulted Interest" is defined in Section 309 hereof.
"defeasance" is defined in Section 402 hereof.
"Defeasance Redemption Date" is defined in Section 404 hereof.
"Defeased Securities" is defined in Section 401 hereof.
"Depositary" means The Depository Trust Company, its nominees
and their respective successors.
"Direction" is defined in Section 105 hereof.
"Effective Plan Date" means the first Business Day on which
the conditions specified in Section 10.1 of the Plan of Reorganization have been
satisfied or waived.
"Eligible Investments" means, (i) securities issued or
directly and fully guaranteed or insured by the United States of America or any
agency or instrumentality thereof or Canada or any province thereof (provided
that the full faith and credit of the United States of America or Canada, as the
case may be, is pledged in support thereof) having maturities of not more than
90 days from the date of acquisition, (ii) time deposits and certificates of
deposit with maturities of not more than 90 days from the date of acquisition of
any commercial banking institution that is a member of the Federal Reserve
System or is a Schedule 1 Canadian Bank, in either case having capital and
surplus in excess of $500,000,000 and whose debt has a rating at the time of any
such investment of at least "A-1" or the equivalent thereof by S&P or at least
"P-1" or the equivalent thereof by Xxxxx'x, or any Lender, (iii) fully secured
repurchase obligations with a term of not more than seven days for underlying
securities of the types described in clause (i) entered into with any bank or
financial institution meeting the qualifications
11
24
specified in clause (ii) above, (iv) commercial paper issued by the parent
corporation of any commercial banking institution that is a member of the
Federal Reserve System or is a Schedule 1 Canadian Bank, in either case having
capital and surplus in excess of $500,000,000 and commercial paper or master
notes of issuers rated at the time of any such investment at least "A-1" or the
equivalent thereof by S&P or at least "P-1" or the equivalent thereof by
Xxxxx'x, and in each case maturing within 270 days after the date of
acquisition, and (v) any shares in an open-end mutual fund organized by a bank
or financial institution having combined capital and surplus of at least
$500,000,000 investing solely in investments permitted by the foregoing clauses
(i), (ii) and (iv).
"Environmental Claim" means any claim, assertion, demand,
notice of violation, suit, administrative or judicial proceeding, regulatory
action, investigation, information request or order involving any Hazardous
Materials, Environmental Law, noise or odor pollution or any injury or threat of
injury to human health, property or the environment.
"Environmental Law" means all international, national,
provincial, regional, federal, state, local and municipal statutes, laws
(including principles of common and decisional law), regulations, by-laws,
policies, guidelines, directives, standards, rules, orders, decrees, judgments,
ordinances, permits, certificates, licenses, registrations, approvals, or
requirements or authorizations of any governmental or administrative authority
relating to the environment, natural resources, safety or health of humans or
other organisms, including the manufacture, distribution in commerce, and use or
Release of Hazardous Materials.
"Event of Default" has the meaning specified in Article Five
of this Indenture.
"Exchange Act" means the United States Securities Exchange Act
of 1934, as amended.
"Excluded Holder" is defined in Section 1030(a) hereof.
"Existing Indebtedness" means all Indebtedness (other than the
Securities outstanding) of the Obligors existing as of the Effective Plan Date
after giving effect to the Plan of Reorganization and listed on Schedule 1
hereto.
"Exit Facility" means the Credit Agreement, dated as of [*],
2001, between [*], as borrower, and [*], as lender, administrative agent and
collateral agent thereunder, as may be amended, supplemented, amended and
restated or otherwise modified from time to time., and all agreements and
instruments related thereto and contemplated thereby, each dated as of [*], 2001
(including any security agreement entered in connection therewith), as each such
agreement or instrument may be amended, supplemented, amended and restated or
otherwise modified from time to time.
"Exit Facility Provider" means [*] as lender under the Exit
Facility or any successor lender or lenders under the Exit Facility.
12
25
"Fair Market Value" means, with respect to any asset or
property, the price which could be negotiated in an arm's-length transaction,
for cash, between a willing seller and a willing buyer, neither of whom is under
undue pressure or compulsion to complete the transaction. Fair Market Value will
be determined by a majority of the members of the Boards of Directors of PCI and
the Company and a majority of the disinterested members of the Boards of
Directors of PCI and the Company, if any, acting in good faith, and will be
evidenced by a duly and properly adopted resolution of such Boards of Directors.
"Final Order" has the meaning given to it in the Plan of
Reorganization.
"Fiscal Year" means, with respect to any Obligor, any period
of twelve consecutive months ending on December 31; references to a Fiscal Year
with a numbering corresponding to any calendar year refer to the fiscal year
ending on the 31st of December during such calendar year.
"Funding Guarantor" is defined in Section 1310 hereof.
"GAAP" means generally accepted accounting principles set
forth in the opinions and pronouncements of the Accounting Principles Board of
the American Institute of Certified Public Accountants and statements and
pronouncements of the Financial Accounting Standards Board or in such other
statements by such other entity as approved by a significant segment of the
accounting profession, which are in effect from time to time.
"Global Security" means a security that evidences all of the
Securities and bears the legend set forth in Section 202.
"Guaranties" means each Guaranty taken together with each
other Guaranty.
"Guarantor" means, collectively, Pioneer Companies, Inc., a
Delaware corporation, Imperial West Chemical Co., a Nevada corporation, Kemwater
North America Co., a Delaware corporation, Pioneer Americas LLC, a Delaware
limited liability company, Pioneer (East), Inc., a Delaware corporation, Pioneer
Water Technologies, Inc., a Delaware corporation, Pioneer Licensing, Inc., a
Delaware corporation, and KWT, Inc., a Delaware corporation, and each other
guarantor of the Company that becomes a guarantor pursuant to this Indenture,
and "Guarantor" shall mean any one of such guarantors.
"Guaranty" means the guaranty by any Guarantor of the
Company's Indenture Obligations pursuant to a guaranty given in accordance with
this Indenture, including, without limitation, the Guaranties by the Guarantors
included in Article Thirteen of this Indenture and any Guaranty delivered
pursuant to Section 1317 hereof.
"Guaranteed Obligations" is defined in Section 1301 hereof.
13
26
"Hazardous Materials" means all pollutants, contaminants,
hazardous substances, hazardous chemicals, hazardous wastes, hazardous
materials, residual hazardous materials, medical and biochemical wastes, special
wastes, toxic substances, petroleum (including crude oil) and petroleum-derived
substances, wastes and additives, asbestos, polychlorinated biphenyls,
ozone-depleting substances, methane, radioactive materials (including source,
special nuclear and by-product materials as defined by 42 U.S.C. Section 2011 et
seq. (whether or not 42 U.S.C. Section 2011 et seq. would apply in respect of
any Obligor incorporated or organized outside of the United States)) and all
other compounds, elements, materials and substances in any form or condition
(including products) regulated, restricted or addressed by or under
Environmental Laws.
"Hedging Obligations" means the obligations of any Person or
entity pursuant to any swap or cap agreement, exchange agreement, collar
agreement, option, futures or forward hedging contract, derivative instrument or
other similar agreement or any arrangement designed to protect such Person or
entity against fluctuations in interest rates or foreign exchange rates or the
price of raw materials and other chemical products used or produced in the
Company's business or the business of any other Obligor, as the case may be.
"Holder" means a Person in whose name a Security is registered
in the Security Register.
"including" means including without limiting the generality of
any description preceding such term, and, for purposes of this Indenture, the
parties hereto agree that the rule of ejusdem generis shall not be applicable to
limit a general statement, which is followed by or referable to an enumeration
of specific matters, to matters similar to the matters specifically mentioned.
"incur" has the meaning given to it in Section 1008 hereof;
provided that (i) with respect to any Indebtedness of any Subsidiary of PCI or
the Company that is owing to PCI or the Company, or another such Subsidiary, any
disposition, pledge or transfer of such Indebtedness to any Person (other than
PCI or the Company or a Wholly-Owned Subsidiary of PCI or the Company) shall be
deemed to be an incurrence of such Indebtedness and, (ii) with respect to any
Indebtedness of PCI or the Company or a Subsidiary of the Company or PCI that is
owing to another such Subsidiary, any transaction pursuant to which a
Wholly-Owned Subsidiary to which such Indebtedness is owing ceases to be a
Wholly-Owned Subsidiary shall be deemed to be an incurrence of such
Indebtedness; and provided, further that any Indebtedness of a Person existing
at the time such Person becomes a Subsidiary of PCI or the Company shall be
deemed to be incurred by such Subsidiary at the time it becomes a Subsidiary.
The term "incurrence" has a corresponding meaning.
"Indebtedness" of any Person means, without duplication, all
liabilities with respect to: (i) indebtedness for money borrowed for the
deferred purchase price of property or services or which is evidenced by a bond,
debenture, note or other similar instrument or agreement, but excluding trade
credit evidenced by any such instrument or agreement incurred in the ordinary
course of business and payable on usual and
14
27
customary terms, or Indebtedness of any partnership of which such Person is a
partner; (ii) reimbursement obligations, letters of credit and bankers'
acceptances; (iii) indebtedness with respect to Hedging Obligations; (iv)
Capitalized Lease Obligations; (v) indebtedness, secured or unsecured, created
or arising in connection with the acquisition or improvement of any property or
asset or the acquisition of any business; (vi) all indebtedness secured by or
for which the obligee has an existing right, contingent or otherwise, to be
secured by any Lien upon property owned by such Person and all indebtedness
secured in the manner specified in this clause even if such Person has not
assumed or become liable for the payment thereof; (vii) all indebtedness of such
Person created or arising under any conditional sale or other title retention
agreement with respect to property acquired by such Person or otherwise
representing the deferred and unpaid balance of the purchase price of any such
property, including all indebtedness created or arising in the manner specified
in this clause even though the rights and remedies of the seller or lender under
such agreement in the event of default are limited to repossession or sale of
such property; (viii) guaranties, direct or indirect, of any Indebtedness of
other Persons referred to in clauses (i) through (vii) above, or of dividends or
leases, taxes or other obligations of other Persons, excluding any guaranty
arising out of the endorsement of negotiable instruments for collection in the
ordinary course of business; (ix) contingent obligations in respect of, or to
purchase or otherwise acquire or be responsible or liable for, through the
purchase of products or services, irrespective of whether such products are
delivered or such services are rendered, or otherwise, any such indebtedness
referred to in clauses (i) through (vii) above; (x) any obligation, contingent
or otherwise, arising under any surety, performance or maintenance bond; and
(xi) all preferred stock or other redeemable stock of such Person valued at the
greater of its voluntary or involuntary maximum fixed repurchase price plus
accrued and unpaid dividends. As used herein, Indebtedness with respect to any
Hedging Obligation means, with respect to any specified Person on any date, the
net amount (if any) that would be payable by such specified Person upon the
liquidation, close-out or early termination on such date of such Hedging
Obligation. For purposes of the foregoing, any settlement amount payable upon
the liquidation, close-out or early termination of a Hedging Obligation shall be
calculated by PCI and the Company in good faith and in a commercially reasonable
manner on the basis that such liquidation, close-out or early termination
results from an event of default or other similar event with respect to such
specified Person. Any reference in this definition to indebtedness shall be
deemed to include any renewals, extensions and refundings of any such
indebtedness or any indebtedness issued in exchange for such indebtedness.
"Indenture Documents" means this Indenture, the Securities,
the Guaranties, the Common Security and Intercreditor Agreement, each Stock
Pledge Agreement, each Mortgage (upon execution and delivery thereof), the other
Security Documents and each other agreement, document or instrument delivered in
connection herewith and therewith, whether or not specifically mentioned herein
or therein.
"Indenture Obligations" means the obligations (monetary or
otherwise) of the Company and each other Obligor and their respective Obligor
Subsidiaries under this Indenture, the Securities and the other Indenture
Documents, to pay principal, premium, if any, and interest when due and payable,
and all other amounts due or to become due
15
28
under or in connection with this Indenture (including, without limitation, all
sums due to the Trustee pursuant to Section 606 hereof), the Securities and the
other Indenture Documents and the performance of all other obligations to the
Trustee and the Holders under this Indenture, the Securities and the other
Indenture Documents, according to the terms hereof and thereof.
"Indenture Obligor" means the Company, as issuer of the
Securities, each of the Guarantors and each other obligor under this Indenture.
"Independent Director" means, in relation to any Person, a
director other than a director (i) who (apart from being a director of the
Person or any of its Subsidiaries) is an employee, insider, associate or
Affiliate of the Person or any of its Subsidiaries or has held any such position
during the previous year, or (ii) who is a director, an employee, insider,
associate or Affiliate of another party to the transaction in question.
"Insurance Proceeds" has the meaning specified in each
[Mortgage].
"Intercreditor Collateral Account" means the Collateral
Account as defined in the Common Security and Intercreditor Agreement.
"Interest Payment Date" means the Stated Maturity of an
installment of interest on the Securities.
"Investment" means any direct or indirect advance, loan, other
extension of credit or capital contribution (by means of any transfer of cash or
other property to others or any payment for property or services for the account
or use of others) to, purchase or acquire Capital Stock, bonds, notes,
debentures or other securities of, or purchase or acquire all or a substantial
part of the business, Capital Stock or other evidence of beneficial ownership
of, or any other investment in or guaranty of any Indebtedness of, any Person or
any other item that would be classified as an investment on a balance sheet
prepared in accordance with GAAP. Investments do not include advances to
customers and suppliers in the ordinary course of business on commercially
reasonable terms. If any Obligor or any Obligor Subsidiary sells or otherwise
disposes of any Capital Stock of any direct or indirect Subsidiary of any
Obligor or Obligor Subsidiary such that, after giving effect to any such sale or
disposition, such Person is no longer such a Subsidiary of the Obligor or
Obligor Subsidiary, the Company shall be deemed to have made an Investment on
the date of any such sale or disposition equal to the Fair Market Value of the
Capital Stock of such Subsidiary not sold or disposed of.
"judgment currency" is defined in Section 1005 hereof.
"Lenders" shall mean the lenders party to the Term Loan
Agreement.
"Lien" means any mortgage, pledge, lien, security interest,
hypothec, prior claim, charge or encumbrance of any kind (including any
conditional sale or other title retention agreement and any lease in the nature
thereof).
16
29
"Loan Documents" means collectively, the Term Loan Agreement
(including the Guaranties contained therein), the New Tranche A Term Notes, the
Common Security and Intercreditor Agreement, each Stock Pledge Agreement, each
Mortgage (upon execution and delivery thereof), the other Security Documents and
each other agreement, document or instrument delivered in connection therewith,
whether or not specifically mentioned herein or therein, each as amended,
supplemented, amended and restated or otherwise modified from time to time as
permitted in accordance with their respective terms.
"Material Adverse Effect" means (i) any material adverse
effect on the business, assets, debt service capacity, liabilities (including
environmental liabilities), financial condition, operations or prospects of the
Obligors and the Obligor Subsidiaries, taken as a whole, (ii) any material
adverse effect upon the ability of the Company or any other Obligor to timely
perform its respective material obligations under the Indenture Documents or the
Transaction Documents to which it is or will be a party, or (iii) any impairment
of the legality, validity or enforceability of this Indenture, any other
Indenture Document or any Transaction Document, or any material impairment of
the rights, remedies or benefits available to the Trustee, the Collateral Agent
or the Holders under this Indenture, any other Indenture Document or any
Transaction Document or the Administrative Agent or the Lenders under any
Transaction Document.
"Maturity" when used with respect to any Security means the
date on which the principal of such Security becomes due and payable as therein
provided or as provided in this Indenture, whether at Stated Maturity, the Asset
Sale Purchase Date, the Change of Control Payment Date or the Redemption Date
and whether by declaration of acceleration, Change of Control, call for
redemption or otherwise.
"MEIP" means an equity incentive plan which shall become
effective on the Effective Plan Date or as soon as reasonably practicable
thereafter, substantially in the form contained in the Plan Supplement (as such
term is defined in the Plan of Reorganization).
"Moody's" means Xxxxx'x Investors Service, Inc. or any
successor rating agency.
"Mortgage" means each mortgage, deed of trust, or similar
security instrument, substantially in the form of Exhibit A attached to this
Indenture, which from time to time affects any property (including real property
or immovable property situated in the United States or in any Canadian province)
that secures PCI's, the Company's or any other Obligor's obligations under this
Indenture, the Term Loan Agreement, the New Tranche A Term Notes, the Securities
and any other Indenture Document or Transaction Document, as such instruments
may be amended, supplemented or otherwise modified from time to time.
"Mortgaged Property" has the meaning specified in each
Mortgage.
"Net Award" has the meaning specified in each Mortgage.
17
30
"Net Income" means, for any period for any Person, the net
income of such Person determined in accordance with GAAP.
"Net Proceeds" means the aggregate cash proceeds received by
any Obligor or any Obligor Subsidiary in respect of any Asset Sale (including,
without limitation, the proceeds of insurance paid on account of the loss of or
damage to any property, or compensation or other proceeds for any property taken
by condemnation, eminent domain or similar proceedings, and any non-cash
consideration received by any Obligor or any Obligor Subsidiary from any Asset
Sale that is converted into or sold or otherwise disposed of for cash within 90
days after the relevant Asset Sale), net of (i) the direct costs relating to
such Asset Sale (including, without limitation, reasonable legal, accounting and
investment banking fees and sales commissions), (ii) any taxes paid or payable
as a result thereof, (iii) all amounts required to be applied to the repayment
of, or representing the amount of permanent reductions in the commitments
relating to, Indebtedness (other than the Securities) secured by a Lien on the
asset or assets the subject of such Asset Sale which Lien is permitted pursuant
hereto, and (iv) any reserve for adjustment in respect of the sale price of such
asset or assets required by GAAP.
"New Common Stock" means the common stock of PCI authorized by
and issued pursuant to the Plan of Reorganization.
"New Debt" means the New Tranche A Term Notes and the
Securities.
"New Other Secured Notes" has the meaning given it in the Plan
of Reorganization.
"New Other Secured Notes And Claims" means the Allowed Other
Secured Claims reinstated pursuant to the Bankruptcy Code and Plan of
Reorganization and the New Other Secured Notes.
"New Tranche A Term Notes" means indebtedness of the Term Loan
Borrower in an aggregate principal amount of $50,000,000, as such indebtedness
is continued and incurred by the Term Loan Borrower from time to time in
accordance with the terms of the Term Loan Agreement.
"Obligor" means the Company, each of the Guarantors and any
Person (other than the Administrative Agent, the Collateral Agent, the Trustee,
any Lender or any Holder) obligated under any Indenture Document.
"Obligor Subsidiary" means, in respect of an Obligor or an
Indenture Obligor, any Subsidiary of such Obligor or Indenture Obligor, as the
case may be.
"Officers' Certificate" means a certificate signed by the
Chairman of the Board, Vice Chairman, the President or a Vice President
(regardless of vice presidential designation), and by the Treasurer, an
Assistant Treasurer, the Secretary or an Assistant Secretary of the relevant
Obligor or Obligor Subsidiary, as the case may be, and delivered to the Trustee.
18
31
"Old Debt" means indebtedness under (i) those certain
$175,000,000 9.25% Senior Secured Guaranteed Notes due October 2007 issued by
PCI Chemicals Canada Inc. pursuant to that certain Indenture, dated as of
October 30, 1997, among PCI Chemicals Canada Inc., the Guarantors (as such term
is defined therein) and the United States Trust Company of New York ("USTC"), in
its capacity as trustee and as collateral agent, (ii) that certain Term Loan
Agreement, dated as of October 30, 1997, among Pioneer Corporation of America,
the Lenders (as such term is defined therein), certain other parties and BNY
Asset Solutions LLC, in its capacity as administrative agent, (iii) those
certain $200,000,000 9.25% Senior Secured Guaranteed Notes due June 2007 issued
by Pioneer Corporation of America pursuant to that certain Indenture, dated as
of June 17, 1997 among Pioneer Corporation of America, the Guarantors (as such
term is defined therein) and USTC, in its capacity as trustee, and (iv) that
certain Term Loan Agreement, dated as of June 17, 1997, among Pioneer
Corporation of America, the Lenders (as such term is defined therein), certain
other parties and BNY Asset Solutions LLC, in its capacity as administrative
agent.
"Opinion of Counsel" means a written opinion of counsel, who
shall be counsel for the relevant Obligor or Obligor Subsidiary, as the case may
be, and who shall be reasonably acceptable to the Trustee.
"Opinion of Independent Counsel" means a written opinion of
counsel issued by someone who is not an employee or consultant of the relevant
Obligor or Obligor Subsidiary, as the case may be, and who shall be reasonably
acceptable to the Trustee.
"Organizational Documents" means, in respect of any Obligor or
other Person, its certificate of incorporation and its by-laws (or equivalent
constitutive documents) and all shareholder agreements, voting trusts and
similar arrangements to which such Obligor or other Person is a party applicable
to any of authorized shares, or other units or forms, of its Capital Stock.
"Outstanding" when used with respect to Securities means, as
of the date of determination, all Securities theretofore authenticated and
delivered under this Indenture, except:
(a) Securities theretofore canceled by the Trustee or
delivered to the Trustee for cancellation;
(b) Securities, or portions thereof, for whose payment or
redemption money in the necessary amount has been theretofore deposited
with the Trustee or any Paying Agent (other than the Company) in trust
or set aside and segregated in trust by the Company (if the Company
shall act as its own Paying Agent) for the Holders; provided that if
such Securities are to be redeemed, notice of such redemption has been
duly given pursuant to this Indenture or provision therefor reasonably
satisfactory to the Trustee has been made;
19
32
(c) Securities, except to the extent provided in Sections 402
and 403 hereof, with respect to which the Company has effected
defeasance or covenant defeasance as provided in Article Four; and
(d) Securities in exchange for or in lieu of which other
Securities have been authenticated and delivered pursuant to this
Indenture, other than any such Securities in respect of which there
shall have been presented to the Trustee proof reasonably satisfactory
to it that such Securities are held by a bona fide purchaser in whose
hands the Securities are valid obligations of the Company;
provided, however, that in determining whether the Holders of the requisite
principal amount of Outstanding Securities have given any request, demand,
authorization, direction, notice, consent or waiver hereunder, Securities owned
by the Company, any Guarantor, or any other Obligor upon the Securities or any
Affiliate of the Company, any Guarantor, or such other Obligor shall be
disregarded and deemed not to be Outstanding, except that, in determining
whether the Trustee shall be protected in relying upon any such request, demand,
authorization, direction, notice, consent or waiver, only Securities which the
Trustee knows to be so owned shall be so disregarded. Securities so owned which
have been pledged in good faith may be regarded as Outstanding if the pledgee
establishes to the reasonable satisfaction of the Trustee the pledgee's right so
to act with respect to such Securities and that the pledgee is not the Company,
any guarantor or any other Obligor upon the Securities or any Affiliate of the
Company, any Guarantor or such other Obligor.
"Paying Agent" means any person authorized by the Company to
pay the principal of, premium, if any, or interest on any Securities on behalf
of the Company.
"PCI" means Pioneer Companies, Inc., a Delaware corporation,
in its capacities as the parent of the Company and a Guarantor.
"Permitted Investments" means (i) any Eligible Investment,
(ii) any Investment in the Company or any other Obligor, (iii) Investments in
existence on the date hereof and listed on Schedule 2 hereto, (iv) Indebtedness
permitted pursuant to clause (vi) of Section 1008 herein, (v) other investments
by any Obligor after the date hereof in joint ventures, corporations, limited
liability companies, partnerships or Obligor Subsidiaries engaged in a Related
Business that do not at any one time outstanding exceed $5,000,000; provided
that the amount of Investments pursuant to this clause (v) will be included in
the calculation of Restricted Payments pursuant to Section 1006, (vi) promissory
notes and other non-cash consideration received by the Obligors or the Obligor
Subsidiaries in connection with Asset Sales permitted hereunder; (vii)
Investments by PCI in Hedging Obligations permitted hereunder; and (viii)
investments (including debt obligations and Capital Stock) received by the
Company or its Subsidiaries in connection with the bankruptcy or reorganization
of suppliers and customers and in settlement of delinquent obligations of, and
other disputes with customers and suppliers arising in the ordinary course of
business, in each case of the Company or its Subsidiaries.
20
33
"Permitted Issuance" means (i) the issuance by PCI of shares
of Capital Stock as dividends on issued and outstanding Capital Stock of the
same class of PCI or pursuant to any dividend reinvestment plan, (ii) the
issuance by PCI of options or other equity securities of PCI to outside
directors, members of management or employees of PCI or any Subsidiary of PCI,
[(iii) the issuance of securities as interest or dividends on pay-in-kind debt
or preferred equity securities in accordance with the terms permitted hereunder
and under the other Indenture Documents,] (iv) the issuance to PCI or any of its
Subsidiaries (or any director, with respect to such director's qualifying
shares) by any of PCI's Subsidiaries of any of their respective Capital Stock,
in each case with respect to this clause (iv) to the extent such Capital Stock
issued to PCI or such Subsidiary is pledged to the Trustee pursuant to the
applicable Indenture Document, [(v) the issuance by PCI of shares of its Capital
Stock in connection with an acquisition permitted under this Indenture,] (vi)
cash payments made in lieu of fractional shares of PCI's Capital Stock in
connection with an acquisition referred to in clause (e) above in an aggregate
amount not to exceed $250,000 in aggregate amount during the term of this
Indenture, and (vii) the issuance by PCI of additional shares of Capital Stock
of PCI to infuse additional capital into PCI and its Subsidiaries in an
aggregate amount not to exceed $[*] during the term of this Indenture.
"Permitted Liens" means as of any particular time, any one or
more of the following:
(i) Liens for taxes, rates and assessments not yet past due
or, if past due, the validity of which is being contested in good faith
by the Obligors and the Obligor Subsidiaries by appropriate proceedings
promptly instituted and diligently conducted and against which such
Obligors and Obligor Subsidiaries have established appropriate reserves
in accordance with GAAP;
(ii) the Lien of any judgment rendered for an amount and for a
period not resulting in an Event of Default which is being contested in
good faith by the Obligors and the Obligor Subsidiaries by appropriate
proceedings promptly instituted and diligently conducted and against
which the Obligors and the Obligor Subsidiaries have established
appropriate reserves in accordance with GAAP and which does not have a
Material Adverse Effect;
(iii) other than in connection with Indebtedness, any Lien
arising in the ordinary course of business (a) to secure payments of
workers' compensation, unemployment insurance, pension or other social
security or retirement benefits, or to secure the performance of bids,
tenders, leases, progress payments, contracts (other than for the
payment of money) or to secure public or statutory obligations of any
Obligor or Obligor Subsidiary, or to secure surety or appeal bonds to
which any Obligor or Obligor Subsidiary is a party, (b) imposed by law
dealing with materialmen's, mechanics', workmen's, repairmen's,
warehousemen's, landlords', vendors' or carriers' Liens created by law,
or deposits or pledges which are not yet due or, if due, the validity
of which is being contested in good faith by the Obligors and the
Obligor Subsidiaries by appropriate proceedings promptly instituted and
diligently conducted and against which the Obligors and
21
34
the Obligor Subsidiaries have established appropriate reserves in
accordance with GAAP, (c) rights of financial institutions to setoff
and chargeback arising by operation of law, and (d) similar Liens;
(iv) servitudes, licenses, easements, encumbrances,
restrictions, rights-of-way and rights in the nature of easements or
similar charges which shall not in the aggregate materially adversely
impair the use of the subject property by any Obligor or Obligor
Subsidiary and which do not impair or encumber the Collateral;
(v) zoning and building by-laws and ordinances, municipal
by-laws and regulations, and restrictive covenants, which do not
materially interfere with the use of the subject property by any
Obligor or any Obligor Subsidiary as such property is used as of the
Closing Date and which do not impair or encumber the Collateral;
(vi) liens in favor of customs and revenue authorities arising
as a matter of law to secure the payment of customs duties in
connection with the importation of goods by the Obligor or the Obligor
Subsidiaries;
(vii) deposits to secure statutory obligations in the form of
excise taxes; and
(viii) any extension, renewal, substitution or replacement (or
successive extensions, renewals, substitutions or replacements), as a
whole or in part, of any of the Liens referred to in clauses (i)
through (vii) of this definition or the Indebtedness secured thereby;
provided that (a) such extension, renewal, substitution or replacement
Lien is limited to that portion of the property or assets, now owned or
hereafter acquired, that secured the Lien prior to such extension,
renewal, substitution or replacement Lien and (b) the Indebtedness
secured by such Lien (assuming all available amounts were borrowed) at
such time is not increased.
"Person" means any natural person, corporation, partnership,
firm, association, trust, government, governmental agency, limited liability
company or any other entity, whether acting in an individual, fiduciary or other
capacity.
"Physical Securities" means permanent certificated Securities
in registered form in substantially the form set forth in Article Two.
"Pioneer Companies" is defined in the preamble of this
Indenture.
"Plan of Reorganization" means the Debtor's Amended Joint Plan
of Reorganization under Chapter 11 of the Bankruptcy Code, dated September 21,
2001, filed with the United States Bankruptcy Court, Southern District of Texas,
Houston Division, Case No. 01-38259-H3-11, on behalf of Pioneer Companies, Inc.,
Pioneer Corporation of America, Imperial West Chemical Co., Kemwater North
America Co.,
22
35
PCI Chemicals Canada Inc./PCI Chimie Canada Inc., Pioneer Americas, Inc.,
Pioneer (East), Inc., Pioneer Water Technologies, Inc., Pioneer Licensing, Inc.,
and KWT, Inc.
"Post Petition Interest" is defined in Section 1307 hereof.
"Power of Attorney" is defined in Section 1508 hereof.
"Predecessor Security" of any particular Security means every
previous Security evidencing all or a portion of the same debt as that evidenced
by such particular Security; and, for the purposes of this definition, any
Security authenticated and delivered under Section 308 hereof in exchange for a
mutilated Security or in lieu of a lost, destroyed or stolen Security shall be
deemed to evidence the same debt as the mutilated, lost, destroyed or stolen
Security.
"Qualified Equity Offering" means an offer and sale of common
stock (which is Capital Stock) of PCI made on a primary basis by PCI pursuant to
a registration statement that has been declared effective by the Commission
pursuant to the Securities Act (other than a registration statement on Form S-8
or otherwise relating to equity securities issuable under any employee benefit
plan of such Indenture Obligor), or an offer and sale of common stock (which is
Capital Stock) of PCI which may be made pursuant to an exemption from
registration under the Securities Act, in each case, only to the extent
permitted pursuant to clause (g) of the definition of "Permitted Issuance."
"Quebec Mortgage and Security Agreement" means a deed of
hypothec executed by an authorized representative of the Company in respect of
Collateral located in Quebec, as amended, supplemented, amended and restated or
otherwise modified from time to time.
"Redemption Date", when used with respect to any Security to
be redeemed pursuant to any provision in this Indenture, means the date fixed
for such redemption by or pursuant to this Indenture.
"Redemption Price", when used with respect to any Security to
be redeemed pursuant to any provision in this Indenture, means the price at
which it is to be redeemed pursuant to this Indenture.
"Refinancing" is defined in Section 1008 hereof.
"Refinancing Indebtedness" is defined in Section 1008 hereof.
"Regular Record Date" for the interest payable on any Interest
Payment Date means the June 1 or December 1 (whether or not a Business Day), as
the case may be, next preceding such Interest Payment Date.
"Related Business" means the manufacture or distribution of
chlorine, caustic soda, bleach, hydrochloric acid, and other chlorides and
aluminum sulfate, and in lines of business reasonably related thereto.
23
36
"Release" means any release, discharge, deposit, pumping,
pouring, emptying, injecting, escaping, leaching, migrating, dumping, seepage,
spill, leak, flow, discharge, disposal or emission.
"Restoration" has the meaning set forth in each Mortgage.
"Restricted Payment" is defined in Section 1006 hereof.
"S&P" means Standard & Poor's Ratings Group, a division of The
McGraw Hill Companies, Inc. or any successor rating agency.
"Safety and Health Laws" means all national, federal, state,
provincial, regional, municipal or local statutes, laws, ordinances, codes,
rules, regulations, by-laws, policies, guidelines, directives, judgments, orders
or decrees regulating, relating to or imposing liability or standards of conduct
concerning employee health and/or safety.
"Sale and Leaseback Transaction" with respect to any Person,
means any arrangement with another Person for the leasing of any real or
tangible personal property, which property has been or is to be sold or
transferred or initially leased by such Person to such other Person in
contemplation of such leasing (including a lease and leaseback transaction).
"Securities" means any of the securities, as defined in the
fifth paragraph of the recitals hereof, that are authenticated and delivered
under this Indenture.
"Securities Act" means the United States Securities Act of
1933, as amended.
"Security Documents" means (i) each Mortgage, (ii) each Stock
Pledge Agreement, (iii) the Common Security and Intercreditor Agreement, (iv)
the Canadian Security Agreements, and all security agreements, mortgages, deeds
of trust, pledges, collateral assignments, UCC filings, financing statements and
registrations or any other instrument evidencing or creating any security
interest in favor of the Collateral Agent in all or any portion of the
Collateral, in each case as amended, supplemented or otherwise modified from
time to time.
"Security Register" has the meaning specified in Section 305
hereof.
"Security Registrar" has the meaning specified in Section 305
hereof.
"Senior Indebtedness" means [*].
"Special Record Date", for the payment of any Defaulted
Interest, means a date fixed by the Trustee pursuant to Section 309 hereof.
"Stated Maturity", when used with respect to any Security or
any installment of interest thereon, means the date specified in such Security
as the fixed date on which the principal of such Security or such installment of
interest is due and payable.
24
37
"Stock Pledge Agreement" means the stock pledge agreement by
and among PCI, the Company, the Term Loan Borrower, the other Obligor pledgors
party thereto and the Collateral Agent, for the benefit of (i) the
Administrative Agent (for itself and for the benefit of the Lenders), and (ii)
the Trustee (for itself and the Holders of the Securities), in respect of all
the issued and outstanding Capital Stock owned by the various pledgors
thereunder of the various corporations or entities referred to therein,
substantially in the form of Exhibit D attached hereto, as may be amended,
supplemented, amended and restated or otherwise modified from time to time, and
each other pledge agreement executed and delivered in connection with this
Indenture.
"Subordinated Indebtedness" means Indebtedness of any Obligor
or Obligor Subsidiary as to which the payment of principal of, premium, if any,
interest and other payment obligations in respect of such Indebtedness shall be
subordinate to the prior payment in full of the Securities (including the
Guaranties) to at least the following extent: (i) no payments of principal of,
premium, if any, or interest on, or otherwise due in respect of, such
Indebtedness may be permitted for so long as any default in the payment of
principal of, premium, if any, or interest on the Securities exists; (ii) in the
event that any other Default that with the passing of time or the giving of
notice, or both, would constitute an Event of Default exists with respect to the
Securities, upon notice by Holders of 25% or more of the aggregate principal
amount of the Securities to the Trustee, the Trustee shall have the right to
give notice to the Company and the holders of such Indebtedness (or trustees or
agents therefor) of a payment blockage, and thereafter no payments of principal
of, premium, if any, or interest on or otherwise due in respect of such
Indebtedness may be made for a period of 179 days from the date of such notice;
and (iii) such Indebtedness may not (x) provide for payments of principal of
such Indebtedness at the stated maturity thereof or by way of a sinking fund
applicable thereto or by way of any mandatory redemption, defeasance, retirement
or repurchase thereof by such Obligor or Obligor Subsidiary (including any
redemption, retirement or repurchase which is contingent upon events of
circumstances, but excluding any retirement required by virtue of acceleration
of such Indebtedness upon an event of default thereunder), in each case prior to
the final Stated Maturity of the Securities, or (y) permit redemption or other
retirement (including pursuant to an offer to purchase made by such Obligor or
Obligor Subsidiary) of such other Indebtedness at the option of the holder
thereof prior to the final Stated Maturity of the Securities.
"Subordinated Obligations" is defined in Section 1307 hereof.
"Subsidiary" means, with respect to any Person, (i) any
corporation of which the outstanding Capital Stock having at least a majority of
the votes entitled to be cast in the election of directors, under ordinary
circumstances, is at the time owned, directly or indirectly, by such Person and
one or more of its Subsidiaries or by one or more of such Person's Subsidiaries
or (ii) any other Person of which at least a majority of voting interest, under
ordinary circumstances, is at the time owned, directly or indirectly, by such
Person and one or more of its Subsidiaries or by one or more of such Person's
Subsidiaries, whether or not such corporation or other Person is incorporated or
organized in or under the laws of the United States of America or any state
thereof.
25
38
"Taxes" is defined in Section 1030 hereof.
"Term Loan Agreement" means that certain Term Loan Agreement
dated as of [*], 2001 among the Term Loan Borrower, PCI, the Guarantors
party thereto and the Lenders from time to time party thereto, and [*], as
the Administrative Agent for the Lenders, as amended, restated, supplemented,
modified, renewed, refunded, replaced or refinanced from time to time.
"Term Loan Borrower" means Pioneer Americas LLC, as borrower
under the Term Loan Agreement or any successor as borrower thereto.
"Transaction Documents" means the various documents,
instruments and agreements, implementing the Plan of Reorganization other than
the Indenture Documents (except for the Security Documents which shall also be
"Transaction Documents"), including the Loan Documents, the Amended PCI
Certificate of Incorporation (as such term is defined in the Plan of
Reorganization), the Amended PCI Bylaws (as such term is defined in the Plan of
Reorganization), the amended by-laws and certificates of incorporation of each
of the Subsidiaries of PCI and of the Company, the Exit Facility, the MEIP, the
New Common Stock, the New Other Secured Notes and Claims, the Registration
Rights Agreement (as such term is defined in the Plan of Reorganization), the
documents relating to the Canadian Corporate Reorganization (as such term is
defined in the Term Loan Agreement) and all other agreements, documents,
instruments, certificates, filings, consents, approvals, Board of Directors
resolutions and opinions executed, delivered or furnished pursuant to or in
connection with the implementation of the Plan of Reorganization, each as
amended, supplemented, amended and restated or otherwise modified from time to
time as permitted in accordance with their respective terms.
"Trust Indenture Act" means the United States Trust Indenture
Act of 1939, as amended.
"Trust Moneys" means all cash or Eligible Investments received
by the Collateral Agent, (i) in exchange for the release of property from the
Lien of any of the Security Documents, or (ii) as compensation for or proceeds
of the sale of all or any part of the Collateral taken by eminent domain or
purchased by, or sold pursuant to any order of, a governmental authority or
otherwise disposed of, or (iii) as proceeds of insurance upon any, all or part
of the Collateral (other than any liability insurance proceeds payable to the
Collateral Agent for any loss, liability or expense incurred by it), or (iv) as
proceeds of any other sale or other disposition of all or any part of the
Collateral by or on behalf of the Collateral Agent or any collection, recovery,
receipt, appropriation or other realization of or from all or any part of the
Collateral pursuant to the Security Documents or otherwise, or (v) for
application under the Indenture as provided in the Indenture or any Security
Document, or whose disposition is not otherwise specifically provided for in the
Indenture or in any Security Document.
26
39
"Trustee" means the Person named as the "trustee" in the
preamble of this Indenture until a successor trustee shall have become such
pursuant to the applicable provisions of this Indenture and thereafter "Trustee"
shall mean such successor trustee.
"U.S. Government Obligations" means securities that are (i)
direct obligations of the United States of America for the payment of which its
full faith and credit is pledged or (ii) obligations of a Person controlled or
supervised by, and acting as an agency or instrumentality of, the United States
of America, the payment of which is unconditionally guaranteed as a full faith
and credit obligation by the United States of America, which, in either case
under clause (i) or (ii) above, are not callable or redeemable at the option of
the issuer thereof.
"Voting Stock" of any Person means Capital Stock of such
Person which ordinarily has voting power for the election of directors (or
Persons performing similar functions) of such Person, whether at all times or
only so long as no senior class of securities has such voting power by reason of
any contingency.
"Wholly-Owned Subsidiary" means, with respect to any Person, a
Subsidiary of such Person all of the outstanding Capital Stock or other
ownership interests of which (other than capital stock constituting directors'
qualifying shares or interests held by directors or shares or interests required
to be held by foreign nationals, to the extent mandated by applicable law) are
owned by such Person or by one or more Wholly-Owned Subsidiaries of such Person.
Section 102. [Intentionally omitted].
Section 103. Compliance Certificates and Opinions.
Upon any application or request by any Indenture Obligor to
the Trustee to take any action under any provision of this Indenture, such
Indenture Obligor shall furnish to the Trustee an Officers' Certificate stating
that all conditions precedent, if any, provided for in this Indenture (including
any covenants compliance with which constitutes a condition precedent) relating
to the proposed action have been complied with and an Opinion of Counsel stating
that in the opinion of such counsel all such conditions precedent, if any, have
been complied with, except that, in the case of any such application or request
as to which the furnishing of such documents, certificates and/or opinions is
specifically required by any provision of this Indenture relating to such
particular application or request, no additional certificate or opinion need be
furnished.
Every certificate or Opinion of Counsel with respect to
compliance with a covenant or condition provided for in this Indenture shall
include:
(a) a statement that each individual signing such certificate
or opinion has read such covenant or condition and the definitions herein
relating thereto;
(b) a brief statement as to the nature and scope of the
examination or investigation upon which the statements or opinion contained in
such certificate or opinion are based;
27
40
(c) a statement that, in the opinion of each such individual,
such individual has made such examination or investigation as is necessary to
enable such individual to express an informed opinion as to whether or not such
covenant or condition has been complied with; and
(d) a statement as to whether, in the opinion of each such
individual, such condition or covenant has been complied with.
Section 104. Form of Documents Delivered to Trustee.
In any case where several matters are required to be certified
by, or covered by an opinion of, any specified Person, it is not necessary that
all such matters be certified by, or covered by the opinion of, only one such
Person, or that they be so certified or covered by only one document, but one
such Person may certify or give an opinion with respect to some matters and one
or more other such Persons as to other matters, and any such Person may certify
or give an opinion as to such matters in one or several documents.
Any certificate or opinion of an officer of any Obligor may be
based, insofar as it relates to legal matters, upon a certificate or opinion of,
or representations by, counsel, unless such officer knows that the certificate
or opinion or representations with respect to the matters upon which his
certificate or opinion is based are erroneous. Any such certificate or opinion
of counsel may be based, insofar as it relates to factual matters, upon a
certificate or opinion of, or representations by, an officer or officers of any
Obligor stating that the information with respect to such factual matters is in
the possession of any Obligor, unless such counsel knows that the certificate or
opinion or representations with respect to such matters are erroneous. Opinions
of Counsel required to be delivered to the Trustee may have qualifications
customary for opinions of the type required and counsel delivering such Opinions
of Counsel may rely on certificates of the relevant Obligor or government or
other officials customary for opinions of the type required, including
certificates certifying as to matters of fact, including that various financial
covenants have been complied with.
Where any Person is required to make, give or execute two or
more applications, requests, consents, certificates, statements, opinions or
other instruments under this Indenture, they may, but need not, be consolidated
and form one instrument.
Section 105. Acts of Holders.
(a) Any request, demand, authorization, direction, notice,
consent, waiver or other Act (as such term is defined below) provided by this
Indenture to be given or taken by Holders may be embodied in and evidenced by
one or more instruments of substantially similar tenor signed by such Holders in
person or by an agent duly appointed in writing; and, except as herein otherwise
expressly provided, such action shall become effective when such instrument or
instruments are delivered to the Trustee and, where it is hereby expressly
required, to the Company. Such instrument or instruments (and the action
embodied therein and evidenced thereby) are herein
28
41
sometimes referred to as the "Act" of the Holders signing such instrument or
instruments. Proof of execution of any such instrument or of a writing
appointing any such agent shall be sufficient for any purpose of this Indenture
if made in the manner provided in this Section. The fact and date of the
execution by any Person of any such instrument or writing or the authority of
the Person executing the same may also be proved in any other manner which the
Trustee deems sufficient in accordance with such reasonable rules as the Trustee
may determine.
(b) The ownership of Securities shall be evidenced by the
Security Register.
(c) Any request, demand, authorization, direction, notice,
consent, waiver or Act by the Holder of any Security shall bind every future
Holder of the same Security or the Holder of every Security issued upon the
transfer thereof or in exchange therefor or in lieu thereof in respect of
anything done, suffered or omitted to be done by the Trustee, any Paying Agent
or any Indenture Obligor or its respective Obligor Subsidiary in reliance
thereon, whether or not notation of such action is made upon such Security.
(d) If the Company shall solicit from the Holders any request,
demand, authorization, direction, notice, consent, waiver or other Act, the
Company may, at its option, by or pursuant to a Board Resolution, fix in advance
a record date for the determination of such Holders entitled to give such
request, demand, authorization, direction, notice, consent, waiver or other Act,
but the Company shall have no obligation to do so. Notwithstanding Trust
Indenture Act, Section 316(c), any such record date shall be the record date
specified in or pursuant to such Board Resolution, which shall be a date not
more than 30 days prior to the first solicitation of Holders generally in
connection therewith and no later than the date such solicitation is completed.
Without limiting the generality of the foregoing, a Holder,
including the Depositary that is a Holder of a Global Security, may make, give
or take, by a proxy, or proxies, duly appointed in writing, any request, demand,
authorization, direction, notice, consent, waiver or other action provided or
permitted in this Indenture to be made, given or taken by Holders and the
Depositary that is a Holder of a Global Security may provide its proxy or
proxies to the beneficial owners of interest in any such Global Security.
Notwithstanding the foregoing, upon receipt by the Trustee of
(i) any notice of default pursuant to Section 704, (ii) any declaration of
acceleration, or any rescission and annulment of any such declaration pursuant
to Section 502 or (iii) any direction given pursuant to Section 512 (any such
notice, declaration, rescission and annulment, or direction being referred to
herein as a "Direction"), a record date shall automatically and without any
other action by any Person be set for the purpose of determining the Holders
entitled to join in such Direction, which record date shall be the close of
business on the day the Trustee receives such Direction. The Holders on such
record date (or their duly appointed agents), and only such Persons, shall be
entitled to join in such Direction whether or not such Holders remain Holders
after such record date; provided that unless such Direction shall have become
effective by virtue of Holders of a
29
42
majority of the aggregate principal amount of the Securities then Outstanding
(or their duly appointed agents) having joined therein on or prior to the 90th
day after such record date, such Direction shall automatically and without any
action by any Person be cancelled and be of no further effect. Nothing in this
paragraph shall prevent a Holder (or a duly appointed agent thereof) from
giving, before or after the expiration of such 90-day period, a Direction
contrary to, or different from, or, after the expiration of such period,
identical to, a Direction that has been canceled pursuant to the proviso to the
preceding sentence, in which event a new record date in respect thereof shall be
set pursuant to this paragraph.
If such a record date is fixed, such request, demand,
authorization, direction, notice, consent, waiver or other Act may be given or
taken before or after such record date, but only the Holders of record at the
close of business on such record date shall be deemed to be Holders for purposes
of determining whether Holders of the requisite proportion of Securities then
Outstanding have authorized or agreed or consented to such request, demand,
authorization, direction, notice, consent, waiver or other Act, and for this
purpose the Securities then Outstanding shall be computed as of such record
date; provided that no such request, demand, authorization, direction, notice,
consent, waiver or other Act by the Holders on such record date shall be deemed
effective unless it shall become effective pursuant to the provisions of this
Indenture not later than six months after the record date.
(e) If at any time a request, demand, authorization,
direction, notice, consent, waiver or other Act to be given or taken by the
Holders is required pursuant to the terms of this Indenture, the Trustee shall
solicit the direction of the Holders of such aggregate principal amount of the
Securities then Outstanding as are specified in the applicable provisions of
this Indenture and, if not so specified, the Holders of a majority of the
aggregate principal amount of the Securities then Outstanding.
Section 106. Notices, etc., to Trustee, the Company and any
Indenture Obligor or Obligor Subsidiary.
Any request, demand, authorization, direction, notice,
consent, waiver or other Act of Holders or other document provided or permitted
by this Indenture to be made upon, given or furnished to, or filed with:
(a) the Trustee by any Holder or by any Indenture Obligor
shall be sufficient for every purpose hereunder if in writing and mailed,
first-class postage prepaid, telecopied, hand delivered, or delivered by
recognized overnight courier, to the Trustee at [Sixth Street and Marquette
Avenue, Minneapolis, Minnesota 55479], Attention: [Xxxxxxx X. Xxxxxx, General
Counsel]; telecopy: [*], or at any other address previously furnished in writing
to the Holders or any Indenture Obligor by the Trustee; or
(b) any Indenture Obligor, shall be sufficient for every
purpose hereunder if in writing (including telecopy) and mailed, first-class
postage prepaid, telecopied, hand delivered, or delivered by recognized
overnight courier, to the Company addressed to it at c/o Pioneer Companies,
Inc., 000 Xxxxxxxxx Xxxxxx, Xxxxx 0000,
30
43
Houston, Texas 77002, Attention: [*]; telecopy: (000) 000-0000, or at any other
address previously furnished by the Company in writing to the Trustee.
Section 107. Notice to Holders; Waiver.
Where this Indenture provides for notice to Holders of any
event, such notice shall be sufficiently given (unless otherwise herein
expressly provided) if in writing and mailed, first-class postage prepaid, or
delivered by recognized overnight courier, to each Holder affected by such event
at his address as it appears in the Security Register, not later than the latest
date, and not earlier than the earliest date, prescribed for the giving of such
notice. In any case where notice to Holders is given by mail, neither the
failure to mail such notice, nor any defect in any notice so mailed, to any
particular Holder shall affect the sufficiency of such notice with respect to
other Holders. Any notice when mailed to a Holder in the aforesaid manner shall
be conclusively deemed to have been received by such Holder whether or not
actually received by such Holder. Where this Indenture provides for notice in
any manner, such notice may be waived in writing by the Person entitled to
receive such notice, either before or after the event, and such waiver shall be
the equivalent of such notice. Waivers of notice by Holders shall be filed with
the Trustee but such filing shall not be a condition precedent to the validity
of any action taken in reliance upon such waiver.
In case by reason of the suspension of regular mail service or
by reason of any other cause, it shall be impracticable to mail notice of any
event as required by any provision of this Indenture, then any method of giving
such notice as shall be reasonably satisfactory to the Trustee shall be deemed
to be a sufficient giving of such notice.
Section 108. Conflict with Trust Indenture Act.
If any provision hereof limits, qualifies or conflicts with
any provision of the Trust Indenture Act or another provision which is required
or deemed to be included in this Indenture by any of the provisions of the Trust
Indenture Act, the provision or requirement of the Trust Indenture Act shall
control. If any provision of this Indenture modifies or excludes any provision
of the Trust Indenture Act that may be so modified or excluded, the latter
provision shall be deemed to apply to this Indenture as so modified or to be
excluded, as the case may be.
Section 109. Effect of Headings and Table of Contents.
The Article and Section headings herein and the Table of
Contents are for convenience only and shall not affect the construction hereof.
Section 110. Successors and Assigns.
All covenants and agreements in this Indenture by the Company
and each of the other Indenture Obligors shall bind their respective successors
and assigns, whether so expressed or not.
31
44
Section 111. Separability Clause.
In case any provision in this Indenture or in the Securities
shall be invalid, illegal or unenforceable, the validity, legality and
enforceability of the remaining provisions shall not in any way be affected or
impaired thereby.
Section 112. Benefits of Indenture.
Nothing in this Indenture or in the Securities or the
Guaranties, express or implied, shall give to any Person (other than the parties
hereto, their successors hereunder, any Paying Agent and the Holders) any
benefit or any legal or equitable right, remedy or claim under this Indenture.
Section 113. Governing Law.
This Indenture, the Securities and the Guaranties shall be
governed by, and construed in accordance with, the laws of the State of New
York.
Section 114. Legal Holidays.
In any case where any Interest Payment Date, Redemption Date
or Stated Maturity of any Security shall not be a Business Day, then
(notwithstanding any other provision of this Indenture or of the Securities)
payment of interest, principal, or premium, if any, need not be made on such
date, but may be made on the next succeeding Business Day with the same force
and effect as if made on the Interest Payment Date, Redemption Date or Stated
Maturity and no interest shall accrue with respect to such payment for the
period from and after such Interest Payment Date, Redemption Date or Stated
Maturity, as the case may be, to the next succeeding Business Day.
Section 115. Schedules and Exhibits.
All schedules and exhibits attached hereto are by this
reference made a part hereof with the same effect as if herein set forth in
full.
Section 116. Counterparts.
This Indenture may be executed in any number of counterparts,
each of which shall be an original, but such counterparts shall together
constitute but one and the same instrument.
Section 117. Communication by Holders with other Holders.
Holders may communicate pursuant to Trust Indenture Act,
Section 312(b), with other Holders with respect to their rights under this
Indenture or the Securities. Each Indenture Obligor, the Trustee, the Security
Registrar and anyone else shall have the protection of Trust Indenture Act,
Section 312(c).
32
45
Section 118. No Recourse against Others.
A director, officer, employee or stockholder (or other holder
of an ownership interest), as such, of any Obligor or Obligor Subsidiary shall
not have any liability for any obligations of the Company under the Securities
or this Indenture, or for any obligation of any Guarantor under the Guaranties
or this Indenture. By accepting a Security, each Holder shall waive and release
all such liability. The waiver and release shall be part of the consideration
for the issue of the Securities.
Article Two
SECURITY FORMS
Section 201. Forms Generally.
The Securities, the Guaranties and the Trustee's certificate
of authentication shall be in substantially the forms set forth in this Article
Two, with such appropriate insertions, omissions, substitutions and other
variations as are required or permitted by the Indenture and may have such
letters, numbers or other marks of identification and such legends or
endorsements placed thereon as may be required to comply with the rules of any
securities exchange, any Organizational Document or governing instrument or
applicable law or as may, consistently herewith, be determined by the officers
executing such Securities, as evidenced by their execution of the Securities.
Any portion of the text of any Security may be set forth on the reverse thereof,
with an appropriate reference thereto on the face of the Security.
The Securities shall be initially issued in the form of one
permanent Global Security, substantially in the form set forth in this Article
Two. The Global Security shall be deposited with the Trustee, as custodian for
the Depositary, duly executed by the Company and authenticated by the Trustee as
hereinafter provided.
The definitive Securities shall be printed, lithographed or
engraved or produced by any combination of these methods or may be produced in
any other manner permitted by the rules of any securities exchange on which the
Securities may be listed, all as determined by the officers executing such
Securities, as evidenced by their execution of such Securities.
Section 202. Legends.
Every Global Security authenticated and delivered hereunder
shall bear the following legend on the face thereof:
UNLESS THIS SECURITY IS PRESENTED BY AN AUTHORIZED
REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, TO THE COMPANY
OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR
PAYMENT, AND ANY
33
46
SECURITY ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR TO
SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY OR SUCH OTHER
REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY OR SUCH OTHER
NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY (AND ANY PAYMENT HEREON IS MADE TO
CEDE & CO.), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR
VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL SINCE THE
REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
TRANSFER OF THIS GLOBAL SECURITY SHALL BE LIMITED TO TRANSFERS
IN WHOLE, BUT NOT IN PART, TO NOMINEES OF CEDE & CO., OR TO A SUCCESSOR THEREOF
OR SUCH SUCCESSOR'S NOMINEE.
Section 203. Form of Face of Security.
The form of the face of the Securities shall be substantially
as follows:
PCI Chemicals Canada Company/Societe PCI Chimie Canada
-------------------
10% SENIOR SECURED GUARANTEED NOTES DUE 2008
CUSIP No:
No. __________ $150,000,000
PCI Chemicals Canada Company/Societe PCI Chimie Canada, a
unlimited liability company organized and existing under the laws of the
province of Nova Scotia, Canada (herein called the "Company," which term
includes any successor Person under the Indenture hereinafter referred to), for
value received, hereby promises to pay to Cede & Co., or registered assigns, the
principal sum of One Hundred And Fifty Million United States dollars
($150,000,000) on [*], 2008, at the office or agency of the Company referred to
below, and to pay interest thereon from the date of original issuance, or from
the most recent Interest Payment Date to which interest has been paid or duly
provided for, semiannually on June 15, and December 15, in each year, commencing
[December 15], 2001, and at Maturity thereof, at the rate of 10% per annum
(subject to adjustment as provided below), in United States dollars, until the
principal hereof is paid or duly provided for.
34
47
The interest so payable, and punctually paid or duly provided
for, on any Interest Payment Date shall, as provided in such Indenture, be paid
to the Person in whose name this Security (or one or more Predecessor
Securities) is registered at the close of business on the Regular Record Date
for such interest, which shall be June 1, or December 1 (whether or not a
Business Day), as the case may be, next preceding such Interest Payment Date.
Any such interest not so punctually paid, or duly provided for, and interest on
such Defaulted Interest at the interest rate borne by the Securities, to the
extent lawful, shall forthwith cease to be payable to the Holder on such Regular
Record Date, and may be paid to the Person in whose name this Security (or one
or more Predecessor Securities) is registered at the close of business on a
Special Record Date for the payment of such Defaulted Interest to be fixed by
the Trustee, notice of which shall be given to Holders of Securities not less
than 10 days prior to such Special Record Date, or may be paid at any time in
any other lawful manner not inconsistent with the requirements of any securities
exchange on which the Securities may be listed, and upon such notice as may be
required by such exchange, all as more fully provided in said Indenture.
Payment of the principal of, premium, if any, and interest on
this Security shall be made at the office or agency of the Company maintained
for that purpose in The City of New York, 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 against surrender of this Security in the case of any
payment due at the Maturity of the principal thereof (other than any payment of
interest that first becomes payable on a day other than an Interest Payment
Date); provided, however, that payment of interest may be made at the option of
the Company by check mailed to the address of the Person entitled thereto as
such address shall appear on the Security Register; provided, further, that if
this Security is a Global Security, payment may be made pursuant to the rules
and procedures of the Depositary as permitted in said Indenture. Interest shall
be computed on the basis of a 360-day year of twelve 30-day months. Until
otherwise designated by the Company, the Company's office or agency in New York
will be the office of the Trustee maintained for such purposes.
Reference is hereby made to the further provisions of this
Security set forth on the reverse hereof, which further provisions shall for all
purposes have the same effect as if set forth at this place.
This Security is entitled to the benefits of Guaranties by
each of the Guarantors of the punctual payment when due of the Indenture
Obligations made in favor of the Trustee for the benefit of the Holders. Such
Guaranties shall be senior obligations of each Guarantor, and shall rank pari
passu with all existing and future Senior Indebtedness of such Guarantor, and
senior to all Subordinated Indebtedness of such Guarantor Such Guaranties shall
be secured by Collateral. Reference is xxxxxx made to Article Thirteen of the
Indenture for a statement of the respective rights, limitations of rights,
duties and obligations under the Guaranties of each of the Guarantors.
Unless the certificate of authentication hereon has been duly
executed by the Trustee referred to on the reverse hereof or by the
authenticating agent appointed as
35
48
provided in the Indenture by manual signature, this Security shall not be
entitled to any benefit under the Indenture or be valid or obligatory for any
purpose.
IN WITNESS WHEREOF, the Company has caused this instrument to
be duly executed by the manual or facsimile signature of its authorized officers
and its corporate seal to be affixed or reproduced hereon.
Dated: PCI CHEMICALS CANADA COMPANY/SOCIETE PCI
CHIMIE CANADA
By
-------------------------------------
Attest:
[SEAL]
-------------------------------
Secretary
Section 204. Form of Reverse of Securities.
The form of the reverse of the Securities shall be
substantially as follows:
The Holder, by becoming holder of this Security, shall be
bound by the terms and conditions of the Indenture and shall be automatically
deemed to have ratified and consented to the granting by the Trustee and the
Holders to the Collateral Agent of the irrevocable Power of Attorney constituted
in the Indenture.
The Holder agrees (i) with the Trustee and the other Holders
that it will not, without the prior consent of the Trustee and the other
Holders, take or obtain any Lien on any property of the Company to secure the
obligations of the Company hereunder, except for the benefit of the Collateral
Agent or as may otherwise be required by law, and (ii) that, notwithstanding the
provisions of Section 32 of the Special Corporate Powers Act (Quebec), the
Collateral Agent may, as the Person holding the Power of Attorney of the Trustee
and the Holders, acquire any title of indebtedness secured by any hypothec in
its favor related to this Security or the Indenture or any other document
contemplated hereunder.
This Security is one of a duly authorized issue of Securities
of the Company designated as its 10% Senior Secured Guaranteed Notes due 2008
(herein called the "Securities"), limited (except as otherwise provided in the
Indenture referred to below) in aggregate principal amount to $150,000,000,
which may be issued under an indenture (the "Indenture") dated as of [*],
2001, among the Company, each Guarantor from time to time a party thereto, and
[*], as trustee (herein called the "Trustee," which term includes any
successor trustee under the Indenture), to which Indenture and all
36
49
indentures supplemental thereto reference is hereby made for a statement of the
respective rights, limitations of rights, duties, obligations and immunities
thereunder of the Company, the Guarantors, the Trustee and the Holders of the
Securities, and of the terms upon which the Securities and the Guaranties are,
and are to be, authenticated and delivered.
The Indenture contains provisions for defeasance at any time
of (a) the entire Indebtedness on the Securities, and (b) certain restrictive
covenants and related Defaults and Events of Default, in each case upon
compliance or noncompliance with certain conditions set forth therein.
The Securities shall be senior obligations of the Company, and
shall rank pari passu with all existing and future Senior Indebtedness of the
Company, and senior to all Subordinated Indebtedness of the Company.
The Company shall have the right at any time and from time to
time to redeem the Outstanding Securities, in whole or in part, on not less than
thirty (30) nor more than sixty (60) days' prior notice, mailed by first-class
mail to the Holders' registered addresses, in cash, in amounts of $1,000 or an
integral multiple of $1,000 at the following Redemption Prices (expressed as
percentages of the principal amount), if redeemed in the 12-month period
commencing [*] in the year indicated below:
Year Redemption Price
---- ----------------
2001 105.00%
2002 105.00%
2003 105.00%
2004 105.00%
2005 105.00%
2006 102.50%
2007 102.50%
2008 100.00%
in each case together with accrued and unpaid interest to the Redemption Date
(subject to the right of Holders of record on relevant record dates to receive
interest due on an Interest Payment Date). If less than all of the Securities
are to be redeemed, the Trustee shall select the Securities to be redeemed pro
rata, by lot or by a method that complies with applicable legal and securities
exchange requirements, if any, and that the Trustee in its sole discretion
considers fair and appropriate.
Upon the occurrence of a Change of Control, each Holder may
require the Company to repurchase all or a portion of such Xxxxxx's Securities.
The Company shall apply 100% of the aggregate amount of Net
Proceeds from each and every Asset Sale, subject to the certain provisions under
the Indenture, the Term Loan Agreement and the provisions of the Common Security
and Intercreditor Agreement, if applicable, to pro rata prepay the New Tranche A
Term Notes then outstanding and the Securities then Outstanding, on or prior to
the 10th day following the
37
50
date on which such Net Proceeds are received by the Company or any Guarantor, or
any Subsidiary thereof, at a price equal to 100% of the principal amount
thereof, plus accrued interest thereon to the date of prepayment.
In the case of any redemption of Securities, interest
installments whose Stated Maturity is on or prior to the Redemption Date shall
be payable to the Holders of such Securities of record as of the close of
business on the relevant record date referred to on the face hereof. Securities
(or portions thereof) for whose redemption and payment provision is made in
accordance with the Indenture shall cease to bear interest from and after the
date of redemption.
In the event of redemption of this Security in part only, a
new Security or Securities for the unredeemed portion hereof shall be issued in
the name of the Holder hereof upon the cancellation hereof.
If an Event of Default shall occur and be continuing, the
principal amount of all the Securities may be declared due and payable in the
manner and with the effect provided in the Indenture.
The Indenture permits, with certain exceptions (including
certain amendments permitted without the consent of any Holders and certain
amendments permitted only with the consent of all Holders) as therein provided,
the amendment thereof and the modification of the rights and obligations of the
Obligors and the rights of the Holders under the Indenture or the other
Indenture Documents at any time by the Obligors and the Trustee with the consent
of the Holders of a majority of aggregate principal amount of the Securities at
the time Outstanding. The Indenture also contains provisions permitting the
Holders of specified percentages in aggregate principal amount of the Securities
at the time Outstanding, on behalf of the Holders of all the Securities, (i) to
waive compliance by the Obligors with certain provisions of the Indenture, the
Guaranties or the other Indenture Documents, and (ii) to waive certain past
Defaults under the Indenture and the Guaranties and their consequences. Any such
consent or waiver by or on behalf of the Holder of this Security shall be
conclusive and binding upon such Holder and upon all future Holders of this
Security and of any Security issued upon the registration of transfer hereof or
in exchange herefor or in lieu hereof whether or not notation of such consent or
waiver is made upon this Security.
No reference herein to the Indenture and no provision of this
Security or of the Indenture shall alter or impair the obligation of any
Indenture Obligor upon the Securities (in the event such other Obligor is
obligated to make payments in respect of the Securities), which is absolute and
unconditional, to pay the principal of, premium, if any, and interest on this
Security at the times, place and rate, and in the coin or currency, herein
prescribed.
The Securities may be issuable only in registered form without
coupons in denominations of $1,000 and any integral multiple thereof. As
provided in the Indenture and subject to certain limitations therein set forth,
the Securities are exchangeable for a
38
51
like aggregate principal amount of Securities of a different authorized
denomination, as requested by the Holder surrendering the same.
As provided in the Indenture and subject to certain
limitations therein set forth, the transfer of this Security is registrable in
the Security Register upon surrender of this Security for registration of
transfer at the office or agency of the Company in the Borough of Manhattan, The
City of New York, duly endorsed by, or accompanied by a written instrument of
transfer in form satisfactory to the Company and the Security Registrar duly
executed by the Holder hereof or his attorney duly authorized in writing, and
thereupon one or more new Securities, of authorized denominations and for the
same aggregate principal amount, will be issued to the designated transferee or
transferees.
No service charge shall be made for any registration of
transfer or exchange or redemption of Securities but the Company may require
payment of a sum sufficient to cover any tax or other governmental charge
payable in connection therewith.
Prior to and at the time of due presentment of this Security
for registration of transfer, the Company, the Trustee and any agent of the
Company or the Trustee may treat the Person in whose name this Security is
registered as the owner hereof for all purposes, whether or not this Security is
overdue, and neither the Company, the Trustee nor any agent shall be affected by
notice to the contrary.
In order to secure the due and punctual payment of the
principal of, premium, if any, or interest on the Securities when and as the
same shall become due and payable, whether on an Interest Payment Date, at
maturity, by acceleration, repurchase, redemption or otherwise, and interest on
the overdue principal of and interest thereon (to the extent permitted by law),
if any, on the Securities, and performance of all other obligations of the
Company to the Holders or the Trustee under this Indenture and the Securities,
the Obligors have entered into the Security Documents with the Collateral Agent.
The Securities shall be secured by Xxxxx on and security interests in the
Collateral subject to pari passu Liens and security interests and other
permitted encumbrances as described further in the Security Documents.
Each Holder, by accepting a Security, agrees to all of the
terms and provisions of the Security Documents as the same may be amended from
time to time pursuant to the respective provisions thereof and of the Indenture.
Each Holder acknowledges that a release of any of the
Collateral or any Lien strictly in accordance with the terms and provisions of
the Security Documents and the terms and provisions of the Indenture will not be
deemed for any purpose to be an impairment of the security under the Indenture.
The Company will furnish to any Holder upon written request
and without charge a copy of the Indenture and the Security Documents.
39
52
[This Security is a Global Security and is subject to the
provisions of the Indenture relating to Global Securities, including the
limitation in Section 305 thereof on transfer and exchanges of Global
Securities.](1)
This Security and the Indenture shall be governed and
construed in accordance with the laws of the State of New York.
All terms used in this Security which are defined in the
Indenture and not otherwise defined herein shall have the meanings assigned to
them in the Indenture.
--------
(1) Applicable only to a Global Security.
40
53
[FORM OF TRANSFER NOTICE]
FOR VALUE RECEIVED the undersigned registered Holder hereby
sell(s), assign(s) and transfer(s) unto
Insert Taxpayer Identification No.
-----------------------------------------------------------------
-----------------------------------------------------------------
Please print or typewrite name and address including zip code of assignee
-----------------------------------------------------------------
the within Security and all rights thereunder, hereby irrevocably constituting
and appointing
-----------------------------------------------------------------
attorney to transfer said Security on the books of the Company with full power
of substitution in the premises.
Date:
-----------------------
----------------------------------------
NOTICE: The signature to this assignment
must correspond with the name as written
upon the face of the within-mentioned
instrument in every particular, without
alteration or any change whatsoever.
OPTION OF HOLDER TO ELECT PURCHASE
X. Xxxxxxxx pursuant Section 1014 (Change of Control Offer)
If you wish to have this Security purchased by the Company
pursuant to Section 1014 of the Indenture, check the Box: [ ].
If you wish to have a portion of this Security purchased by
the Company pursuant to Section 1014 of the Indenture, state the amount (in
authorized denominations): $___________________
41
54
B. Purchase pursuant Section 1109 (Asset Sale Offer)
If you wish to have this Security purchased by the Company
pursuant to Section 1109 of the Indenture, check the Box: [ ].
If you wish to have a portion of this Security purchased by
the Company pursuant to Section 1109 of the Indenture, state the amount (in
authorized denominations): $___________________
Date:
Your signature:
----------------------------
(Sign exactly as your name appears on the other side of this Security)
Signature Guarantee:
------------------------
Section 205. Form of Trustee's Certificate of Authentication.
TRUSTEE'S CERTIFICATE OF AUTHENTICATION.
This is one of the Securities referred to in the
within-mentioned Indenture.
XXXXX FARGO BANK MINNESOTA,
NATIONAL ASSOCIATION
as Trustee
By
--------------------------------
Authorized Signatory
Section 206. Form of Guaranty of Each of the Guarantors.
The form of Guaranty shall be set forth on the Securities
substantially as follows:
GUARANTIES
For value received, each of the undersigned hereby
unconditionally guaranties, jointly and severally, to the Holder of this
Security the payment of the principal of, premium, if any, or interest on this
Security in the amounts and at the time when due and interest on the overdue
principal and interest, if any, of this Security, if lawful, and the payment or
performance of all other obligations of the Company under
42
55
the Indenture or the Securities, to the Holder of this Security and the Trustee,
all in accordance with and subject to the terms and limitations of this Security
and Article Thirteen of the Indenture. This Guaranty shall not become effective
until the Trustee duly manually executes the certificate of authentication on
this Security.
PIONEER COMPANIES, INC.
Attest By
------------------------------ ------------------------------
Name: Name:
Title: Title:
IMPERIAL WEST CHEMICAL CO.
Attest By
------------------------------ ------------------------------
Name: Name:
Title: Title:
KEMWATER NORTH AMERICA CO.
Attest By
------------------------------ ------------------------------
Name: Name:
Title: Title:
PIONEER AMERICAS LLC
Attest By
------------------------------ ------------------------------
Name: Name:
Title: Title:
PIONEER (EAST), INC.
Attest By
------------------------------ ------------------------------
Name: Name:
Title: Title:
43
56
PIONEER WATER TECHNOLOGIES, INC.
Attest By
------------------------------ ------------------------------
Name: Name:
Title: Title:
PIONEER LICENSING, INC.
Attest By
------------------------------ ------------------------------
Name: Name:
Title: Title:
KWT, INC.
Attest By
------------------------------ ------------------------------
Name: Name:
Title: Title:
ARTICLE THREE
THE SECURITIES
Section 301. Title and Terms.
The aggregate principal amount of Securities which may be
authenticated and delivered under this Indenture is limited to $150,000,000 in
principal amount of Securities, except for Securities authenticated and
delivered upon registration of transfer of, or in exchange for, or in lieu of,
other Securities pursuant to Sections 303, 304, 305, 306, 308, 906, 1009, 1014
or 1108 hereof.
The Securities shall be known and designated as the "10%
Senior Secured Guaranteed Notes due 2008" of the Company. The Stated Maturity of
the principal amount of the Securities shall be [*], 2008, and the
Securities shall each bear interest at the rate of 10% per annum from the
Closing Date or from the most recent Interest Payment Date to which interest has
been paid, as the case may be, payable on [December 15,] 2001 and semiannually
thereafter on June 15 and December 15, in each year, until the principal thereof
is paid or duly made available for payment.
44
57
The principal of, premium, if any, or interest on the Global
Security shall be payable to the Depositary or its nominee, as the case may be,
as the sole registered owner and the sole Holder of the Global Security
represented thereby. The principal of, premium, if any, or interest on the
Securities shall be payable at the office or agency of the Company maintained
for such purpose; provided, however, that at the option of the Company, interest
may be paid by check mailed to the addresses of the Persons entitled thereto as
such addresses shall appear on the Security Register.
The Securities shall be redeemable as provided in Article
Eleven.
At the election of the Company, the entire Indebtedness on the
Securities or certain of the Company's obligations and covenants and certain
Events of Default thereunder may be defeased as provided in Article Four.
Section 302. Denominations.
The Securities shall be issuable only in fully registered form
without coupons and only in denominations of $1,000 and any integral multiple
thereof.
Section 303. Execution, Authentication, Delivery and Dating.
The Securities shall be executed on behalf of the Company by
one of its Chairman of the Board, its President or one of its Vice Presidents
under its corporate seal reproduced thereon and attested to by its Secretary or
one of its Assistant Secretaries.
Securities bearing the manual or facsimile signatures of
individuals who were at any time the proper officers of the Company shall bind
the Company, notwithstanding that such individuals or any of them have ceased to
hold such offices prior to the authentication and delivery of such Securities or
did not hold such offices on the date of such Securities.
At any time and from time to time after the execution and
delivery of this Indenture, the Company may deliver Securities executed by the
Company to the Trustee for authentication, together with a Company Order for the
authentication and delivery of such Securities, and the Trustee, in accordance
with such Company Order, shall authenticate and deliver such Securities as
provided in this Indenture and not otherwise.
Each Security shall be dated the date of its authentication.
No Security shall be entitled to any benefit under this
Indenture or be valid or obligatory for any purpose unless there appears on such
Security a certificate of authentication substantially in the form provided for
herein duly executed by the Trustee by manual signature of an authorized
signatory, and such certificate upon any Security shall be conclusive evidence,
and the only evidence, that such Security has been duly authenticated and
delivered hereunder. Notwithstanding the foregoing, if any Security shall have
been authenticated and delivered hereunder but never issued and sold by the
Company, and the Company shall deliver such Security to the Trustee for
cancellation as provided in Section 311, for all purposes of this Indenture such
Security shall be deemed
45
58
never to have been authenticated and delivered hereunder and shall never be
entitled to the benefits of this Indenture.
In case the Company or any Guarantor, pursuant to and in
accordance with the provisions of Article Eight, shall be consolidated, merged
with or into any other Person or shall sell, assign, convey, transfer or lease
substantially all of its properties and assets to any Person, and the successor
Person resulting from such consolidation, or surviving such merger, or into
which the Company or such Guarantor shall have been merged, or the Person which
shall have received a sale, assignment, conveyance, transfer or lease as
aforesaid, shall have executed an indenture supplemental hereto with the Trustee
pursuant to Article Eight, any of the Securities authenticated or delivered
prior to such consolidation, merger, sale, assignment, conveyance, transfer or
lease may, from time to time, at the request of the successor Person, be
exchanged for other Securities executed in the name of the successor Person with
such changes in phraseology and form as may be appropriate, but otherwise in
substance of like tenor as the Securities surrendered for such exchange and of
like principal amount and the Trustee, upon Company Request of the successor
Person, shall authenticate and deliver Securities as specified in such request
for the purpose of such exchange. If Securities shall at any time be
authenticated and delivered in any new name of a successor Person pursuant to
this Section in exchange or substitution for or upon registration of transfer of
any Securities, such successor Person, at the option of the Holders but without
expense to them, shall provide for the exchange of all Securities at the time
Outstanding for Securities authenticated and delivered in such new name.
The Trustee (at the expense of the Company) may appoint an
authenticating agent acceptable to the Company to authenticate Securities on
behalf of the Trustee. Unless limited by the terms of such appointment, an
authenticating agent may authenticate Securities whenever the Trustee may do so.
Each reference in this Indenture to authentication by the Trustee includes
authentication by such agent. An authenticating agent has the same rights as any
Security Registrar or Paying Agent to deal with the Company and its Affiliates.
Section 304. Temporary Securities.
Pending the preparation of definitive Securities, the Company
may execute, and upon Company Order the Trustee shall authenticate and deliver,
temporary Securities which are printed, lithographed, typewritten or otherwise
produced, in any authorized denomination, substantially of the tenor of the
definitive Securities in lieu of which they are issued and with such appropriate
insertions, omissions, substitutions and other variations as the officers
executing such Securities may determine, as conclusively evidenced by their
execution of such Securities.
After the preparation of definitive Securities, the temporary
Securities shall be exchangeable for definitive Securities upon surrender of the
temporary Securities at the office or agency of the Company designated for such
purpose pursuant to Section 1002 hereof, without charge to the Holder. Upon
surrender for cancellation of any one or more temporary Securities, the Company
shall execute and the Trustee shall authenticate
46
59
and deliver in exchange therefor a like principal amount of definitive
Securities of authorized denominations and of like tenor and aggregate principal
amount. Until so exchanged the temporary Securities shall in all respects be
entitled to the same benefits under this Indenture as definitive Securities.
Section 305. Registration of Transfer and Exchange.
The Company shall cause to be kept at the Corporate Trust
Office of the Trustee, or such other office as the Trustee may designate, a
register (the register maintained in such office and in any other office or
agency designated pursuant to Section 1002 hereof being herein sometimes
referred to as the "Security Register") in which, subject to such reasonable
regulations as the Security Registrar may prescribe, the Company shall provide
for the registration of Securities and of transfers of Securities. The Trustee
or an agent thereof or of the Company shall initially be the "Security
Registrar" for the purpose of registering Securities and transfers of Securities
as herein provided.
Upon surrender for registration of transfer of any Security at
the office or agency of the Company designated pursuant to Section 1002 hereof,
the Company shall execute, and the Trustee shall authenticate and deliver, in
the name of the designated transferee or transferees, one or more new Securities
of the same series of any authorized denomination or denominations, of a like
aggregate principal amount.
Any Holder of the Global Security shall, by acceptance of such
Global Security, agree that transfers of beneficial interests in such Global
Security may be effected only through a book-entry system maintained by the
Holder of such Global Security (or its agent) and that ownership of a beneficial
interest in the Security shall be required to be reflected in a book entry.
At the option of the Holder, Securities may be exchanged for
other Securities of any authorized denomination or denominations, of a like
aggregate principal amount, upon surrender of the Securities to be exchanged at
such office or agency. Whenever any Securities are so surrendered for exchange,
the Company shall execute, and the Trustee shall authenticate and deliver, the
Securities of the same series which the Holder making the exchange is entitled
to receive.
All Securities issued upon any registration of transfer or
exchange of Securities shall be the valid obligations of the Company, evidencing
the same Indebtedness, and entitled to the same benefits under this Indenture,
as the Securities surrendered upon such registration of transfer or exchange.
Every Security presented or surrendered for registration of
transfer, or for exchange or redemption shall (if so required by the Company or
the Trustee) be duly endorsed, or be accompanied by a written instrument of
transfer in form satisfactory to the Company and the Security Registrar, duly
executed by the Holder thereof or his attorney duly authorized in writing.
47
60
No service charge shall be made to a Holder for any
registration of transfer or exchange or redemption of Securities, but the
Company may require payment of a sum sufficient to pay all documentary, stamp or
similar issue or transfer taxes or other governmental charges that may be
imposed in connection with any registration of transfer or exchange of
Securities, other than exchanges pursuant to Section 303, 304, 305, 306, 308,
906, 1009, 1014 or 1108 hereof not involving any transfer.
The Company shall not be required (a) to issue, register the
transfer of or exchange any Security during a period beginning at the opening of
business 15 days before the date of selection of Securities for redemption under
Section 1104 hereof and ending at the close of business on the day of the
mailing of a notice of redemption in respect of any such Securities selected for
redemption, or (b) to register the transfer of or exchange any Security so
selected for redemption in whole or in part, except the unredeemed portion of
Securities being redeemed in part.
Section 306. Book-Entry Provisions for Global Security.
(a) The Global Security shall (i) be registered in the name of
the Depositary for such Global Security or the nominee of such Depositary, (ii)
be delivered to the Trustee as custodian for such Depositary, (iii) constitute a
single Security for all purposes of this Indenture, and (iv) bear legends as set
forth in Section 202 hereof.
Members of, or participants in, the Depositary ("Agent
Members") shall have no rights under this Indenture with respect to any Global
Security held on their behalf by the Depositary, or the Trustee as its
custodian, or under the Global Security, and the Depositary may be treated by
the Company, the Trustee and any agent of the Company or the Trustee as the
absolute owner of such Global Security for all purposes whatsoever.
Notwithstanding the foregoing, nothing herein shall prevent the Company, the
Trustee or any agent of the Company or the Trustee from giving effect to any
written certification, proxy or other authorization furnished by the Depositary
or impair, as between the Depositary and its Agent Members, the operation of
customary practices governing the exercise of the rights of a beneficial holder
of any Security as if such person were a Holder.
(b) Transfers of the Global Security shall be limited to
transfers of such Global Security in whole, but not in part, to the Depositary,
its successors or their respective nominees. Interests of beneficial owners in
the Global Security may be transferred in accordance with the rules and
procedures of the Depositary. Beneficial owners may obtain Physical Securities
in exchange for their beneficial interests in the Global Security upon request
in accordance with the Depositary's and the Security Registrar's procedures. In
addition, Physical Securities shall be transferred to all beneficial owners in
exchange for their beneficial interests in the Global Security if (i) the
Depositary notifies the Company that it is unwilling or unable to continue as
Depositary for the Global Security and a successor depositary is not appointed
by the Company within 90 days of such notice, or (ii) an Event of Default has
occurred and is continuing and the Security Registrar has received a request
from the Depositary.
48
61
(c) In connection with any transfer of a portion of the
beneficial interests in the Global Security to beneficial owners pursuant to
subsection (b) of this Section, the Security Registrar shall reflect on its
books and records the date of such transfer and a decrease in the principal
amount of the Global Security in an amount equal to the principal amount of the
beneficial interest in the Global Security to be transferred, and the Company
shall execute, and the Trustee shall authenticate and deliver, one or more
Physical Securities of like tenor and amount.
(d) In connection with the transfer of the entire Global
Security to beneficial owners pursuant to subsection (b) of this Section, the
Global Security shall be surrendered to the Trustee for cancellation, and the
Company shall execute, and the Trustee shall authenticate and deliver, to each
beneficial owner identified by the Depositary in exchange for its beneficial
interest in the Global Security, an equal aggregate principal amount of Physical
Securities of authorized denominations.
(e) The registered Holder of the Global Security may grant
proxies and otherwise authorize any person, including Agent Members and persons
that may hold interests in the Global Security through Agent Members, to take
any action which a Holder is entitled to take under this Indenture or the
Securities.
Section 307. [Intentionally omitted.]
Section 308. Mutilated, Destroyed, Lost and Stolen Securities.
If (a) any mutilated Security is surrendered to the Trustee,
or (b) the Company and the Trustee receive evidence to their satisfaction of the
destruction, loss or theft of any Security, and there is delivered to the
Company, each Guarantor and the Trustee, such security or indemnity, in each
case, as may be required by them to keep each of them harmless, then, in the
absence of notice to the Company, any Guarantor or the Trustee that such
Security has been acquired by a bona fide purchaser, the Company shall execute,
and upon its written request the Trustee shall authenticate and deliver, in
exchange for any such mutilated Security or in lieu of any such destroyed, lost
or stolen Security, a replacement Security of like tenor and principal amount,
bearing a number not contemporaneously outstanding.
In case any such mutilated, destroyed, lost or stolen Security
has become or is about to become due and payable, the Company in its discretion
may, instead of issuing a replacement Security, pay such Security.
Upon the issuance of any replacement Securities under this
Section, the Company may require the payment of a sum sufficient to pay all
documentary, stamp or similar issue or transfer taxes or other governmental
charges that may be imposed in relation thereof and any other expenses
(including the fees and expenses of the Trustee) connected therewith.
Every replacement Security issued pursuant to this Section in
lieu of any destroyed, lost or stolen Security shall constitute an original
additional contractual obligation of the Company and the Guarantors, whether or
not the destroyed, lost or
49
62
stolen Security shall be at any time enforceable by anyone, and shall be
entitled to all benefits of this Indenture equally and proportionately with any
and all other Securities duly issued hereunder.
The provisions of this Section are exclusive and shall
preclude (to the extent lawful) all other rights and remedies with respect to
the replacement or payment of mutilated, destroyed, lost or stolen Securities.
Section 309. Payment of Interest; Interest Rights Preserved.
Interest on any Security which is payable, and is punctually
paid or duly provided for, on any Interest Payment Date shall be paid to the
Person in whose name that Security is registered at the close of business on the
Regular Record Date for such interest (or, if no business is conducted by the
Trustee at its Corporate Trust Office on such Interest Payment Date, at 5:00
P.M. New York City time on such Interest Payment Date).
Any interest on any Security which is payable, but is not
punctually paid or duly provided for, on any Interest Payment Date and interest
on such defaulted interest at the then applicable interest rate borne by the
Securities, to the extent lawful (such defaulted interest and interest thereon
herein collectively called "Defaulted Interest"), shall forthwith cease to be
payable to the Holder on the Regular Record Date and such Defaulted Interest may
be paid by the Company, at its election in each case, as provided in subsection
(a) or (b) below:
(a) the Company may elect to make payment of any Defaulted
Interest to the Persons in whose names the Securities are registered at the
close of business on a Special Record Date for the payment of such Defaulted
Interest, which date shall be fixed in the following manner. The Company shall
notify the Trustee in writing of the amount of Defaulted Interest proposed to be
paid on each Security and the date (not less than 30 days after such notice) of
the proposed payment, and at the same time the Company shall deposit with the
Trustee an amount of money equal to the aggregate amount proposed to be paid in
respect of such Defaulted Interest or shall make arrangements satisfactory to
the Trustee for such deposit on or prior to the date of the proposed payment
(such money when deposited to be held in trust for the benefit of the Persons
entitled to such Defaulted Interest as in this subsection provided). Thereupon
the Trustee shall fix a Special Record Date for the payment of such Defaulted
Interest which shall be not more than 15 days and not less than 10 days prior to
the date of the proposed payment and not less than 10 days after the receipt by
the Trustee of the notice of the proposed payment. The Trustee shall promptly
notify the Company in writing of such Special Record Date. In the name and at
the expense of the Company, the Trustee shall cause notice of the proposed
payment of such Defaulted Interest and the Special Record Date therefor to be
mailed, first-class postage prepaid, to each Holder at his address as it appears
in the Security Register, not less than 10 days prior to such Special Record
Date. Notice of the proposed payment of such Defaulted Interest and the Special
Record Date therefor having been so mailed, such Defaulted Interest shall be
paid to the Persons in whose names the Securities are
50
63
registered on such Special Record Date and shall no longer be payable pursuant
to the following subsection (b).
(b) The Company may make payment of any Defaulted Interest in
any other lawful manner not inconsistent with the requirements of any securities
exchange on which the Securities may be listed, and upon such notice as may be
required by such exchange, if, after written notice given by the Company to the
Trustee of the proposed payment pursuant to this subsection, such payment shall
be deemed practicable by the Trustee.
Subject to the foregoing provisions of this Section, each
Security delivered under this Indenture upon registration of transfer of or in
exchange for or in lieu of any other Security shall carry the rights to interest
accrued and unpaid, and to accrue, which were carried by such other Security.
Section 310. Persons Deemed Owners.
The Company, any Guarantor, the Trustee and any agent of the
Company or the Trustee may treat the Person in whose name any Security is
registered as the owner of such Security for the purpose of receiving payment of
principal of, premium, if any, and (subject to Section 309 hereof) interest on
such Security and for all other purposes whatsoever, whether or not such
Security is overdue, and neither the Company, any Guarantor, the Trustee nor any
agent of the Company, any Guarantor or the Trustee shall be affected by notice
to the contrary.
Section 311. Cancellation.
All Securities surrendered for payment, purchase, redemption,
registration of transfer or exchange shall be delivered to the Trustee and, if
not already canceled, shall be promptly canceled by it. The Company and any
Guarantor may at any time deliver to the Trustee for cancellation any Securities
previously authenticated and delivered hereunder which the Company or such
Guarantor may have acquired in any manner whatsoever, and all Securities so
delivered shall be promptly canceled by the Trustee. No Securities shall be
authenticated in lieu of or in exchange for any Securities canceled as provided
in this Section except as expressly permitted by this Indenture. All canceled
Securities held by the Trustee shall be destroyed and certification of their
destruction delivered to the Company. The Trustee shall provide the Company a
list of all Securities that have been canceled from time to time as requested by
the Company.
Section 312. Computation of Interest; Interest Act (Canada).
Interest on the Securities shall be computed on the basis of a
360-day year of twelve 30-day months. For purposes of the Interest Act (Canada),
any amount of interest or fees calculated on the basis of a period comprising
360, 365 or 366 days and expressed as an annual rate is equal to the said rate
of interest or fees multiplied by the actual number of days comprised within the
calendar year divided by 360, 365 or 366 days, as the case may be.
51
64
Section 313. Deposit of Moneys.
Prior to 10:00 a.m., New York City time, on each Interest
Payment Date and at Maturity, the Company shall have deposited with the Trustee
or a Paying Agent in immediately available funds money sufficient to make cash
payments, if any, due on such Interest Payment Date or at Maturity, as the case
may be, in a timely manner which permits the Trustee or such Paying Agent to
remit payment to the Holders on such Interest Payment Date or at Maturity, as
the case may be.
Section 314. CUSIP Number.
The Company in issuing the Securities may use a "CUSIP"
number(s) and if so used, the Trustee shall use the CUSIP number(s) in notices
of redemption or exchange as a convenience to Holders, provided that any such
notice may state that no representation is made as to the correctness or
accuracy of the CUSIP number(s) printed in the notice or on the Securities and
that reliance may be placed only on the other identification numbers printed on
the Securities.
ARTICLE FOUR
DEFEASANCE AND COVENANT DEFEASANCE
Section 401. Company's Option to Effect Defeasance or Covenant
Defeasance.
The Company may, at its and PCI's option by Board Resolution
of their respective Board of Directors, at any time, with respect to the
Securities, elect to have either Section 402 or Section 403 hereof be applied to
all of the Outstanding Securities (the "Defeased Securities"), upon compliance
with the conditions set forth below in this Article Four.
Section 402. Defeasance and Discharge.
Upon the Company's exercise under Section 401 hereof of the
option applicable to this Section 402, the Company, each of the Guarantors and
any other Indenture Obligor upon the Securities, if any, shall be deemed to have
been discharged from its obligations with respect to the Defeased Securities on
the date the conditions set forth below are satisfied (hereinafter,
"defeasance"). For this purpose, such defeasance means that the Company shall be
deemed to have paid and discharged the entire Indebtedness represented by the
Defeased Securities, which shall thereafter be deemed to be "Outstanding" only
for the purposes of Section 405 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 Securities and this Indenture, including obligations to
the Trustee, if any (and the Trustee, at the expense of the Company and upon
written request, shall execute proper instruments acknowledging the same),
except for the following which shall survive until otherwise terminated or
discharged hereunder: (a) the rights of Holders of Defeased Securities to
receive, solely from the trust fund described in Section 404
52
65
hereof and as more fully set forth in such Section, payments in respect of the
principal of, premium, if any, or interest on such Securities when such payments
are due, (b) the Company's obligations with respect to such Defeased Securities
under Sections 304, 305, 308, 1002 and 1018 hereof, (c) the rights, powers,
trusts, duties and immunities of the Trustee hereunder including, without
limitation, the Trustee's rights under Section 606 hereof and the Company's
obligations in connection therewith, and (d) this Article Four. Subject to
compliance with this Article Four, the Company may exercise its option under
this Section 402 notwithstanding the prior exercise of its option under Section
403 hereof with respect to the Securities.
Section 403. Covenant Defeasance.
Upon the Company's exercise under Section 401 hereof of the
option applicable to this Section 403, the Company and each Guarantor shall be
released from its obligations under any covenant or provision contained or
referred to in Sections 1003, 1004, 1005, 1006, 1007, 1008, 1009, 1010, 1011,
1012, 1014, 1015, 1016, 1020, 1021, 1022, 1025 and 1317 hereof with respect to
the Defeased Securities on and after the date the conditions set forth below are
satisfied (hereinafter, "covenant defeasance"), and the Defeased Securities
shall thereafter be deemed to be not "Outstanding" for the purposes of any
direction, waiver, consent or declaration or Act of Holders (and the
consequences of any thereof) in connection with such covenants, but shall
continue to be deemed "Outstanding" for all other purposes hereunder. For this
purpose, such covenant defeasance means that, with respect to the Defeased
Securities, the Company and each Guarantor may omit to comply with and shall
have no liability in respect of any term, condition or limitation set forth in
any such Section or Article, whether directly or indirectly, by reason of any
reference elsewhere herein to any such Section or Article or by reason of any
reference in any such Section or Article to any other provision herein or in any
other document and such omission to comply shall not constitute a Default or an
Event of Default under Section 501(2) or (3) hereof but, except as specified
above, the remainder of this Indenture and such Defeased Securities shall be
unaffected thereby.
Section 404. Conditions to Defeasance or Covenant Defeasance.
The following shall be the conditions to application of either
Section 402 or Section 403 hereof to the Defeased Securities:
(1) The Company shall irrevocably have deposited or caused to
be deposited with the Trustee (or another trustee satisfying the
requirements of Section 608 hereof who shall agree to comply with the
provisions of this Article Four applicable to it) as trust funds in
trust for the purpose of making the following payments, specifically
pledged as security for, and dedicated solely to, the benefit of the
Holders of such Securities, (a) United States dollars in an amount, or
(b) U.S. Government Obligations which through the scheduled payment of
principal and interest in respect thereof in accordance with their
terms shall provide, not later than one day before the due date of any
payment, money in an amount, or (c) a combination thereof, sufficient,
in the opinion of a nationally recognized firm of independent public
accountants or a nationally recognized
53
66
investment banking firm expressed in a written certification thereof
delivered to the Trustee, to pay and discharge, and which shall be
applied by the Trustee (or other qualifying trustee), to pay and
discharge, the principal of, premium, if any, or interest on the
Defeased Securities on the Stated Maturity of such principal or
installment of principal or interest (such date being referred to as
the "Defeasance Redemption Date"), if when exercising under Section 401
hereof either its option applicable to Section 402 hereof or its option
applicable to Section 403 hereof, the Company shall have delivered to
the Trustee an irrevocable notice to redeem all of the Outstanding
Securities on the Defeasance Redemption Date); provided that the
Trustee shall have been irrevocably instructed to apply such United
States dollars or the proceeds of such U.S. Government Obligations to
said payments with respect to the Securities.
(2) In the case of an election under Section 402 hereof, the
Company shall have delivered to the Trustee an Opinion of Independent
Counsel in the United States of America or Canada, as applicable,
stating that (a) the Company has received from the Internal Revenue
Service a ruling and from the Canada Customs and Revenue Agency a
ruling or (b) since the date of this Indenture, there has been a change
in the applicable federal income tax law, including by means of a
Revenue Ruling published by the Internal Revenue Service and a ruling
from the Canada Customs and Revenue Agency has been published, in
either case to the effect that, and based thereon such Opinion of
Independent Counsel in the United States of America shall confirm that,
the Holders of the Outstanding Securities will not recognize income,
gain or loss for U.S. Federal income tax and Canadian federal or
provincial income tax purposes as a result of such defeasance and will
be subject to federal income tax on the same amounts, in the same
manner and at the same times as would have been the case if such
defeasance had not occurred.
(3) In the case of an election under Section 403 hereof, the
Company shall have delivered to the Trustee an Opinion of Independent
Counsel in the United States of America or Canada, as applicable, to
the effect that the Holders of the Outstanding Securities will not
recognize income, gain or loss for U.S. Federal income tax, Canadian
federal or provincial income tax or certain other tax purposes as a
result of such covenant defeasance and will be subject to U.S. Federal
income tax or Canadian federal or provincial income tax on the same
amounts, in the same manner and at the same times as would have been
the case if such covenant defeasance had not occurred.
(4) No Default or Event of Default shall have occurred and be
continuing on the date of such deposit or insofar as Sections 501(10),
(11) or (12) hereof are concerned, at any time during the period ending
on the 91st day after the date of deposit.
(5) Such defeasance or covenant defeasance shall not result in
a breach or violation of, or constitute a Default under, any material
agreement or
54
67
instrument (other than this Indenture) to which the Company or any
Guarantor is a party or by which it is bound.
(6) The Company shall have delivered to the Trustee an Opinion
of Independent Counsel to the effect that after the 91st day following
the deposit, the trust funds will not be subject to the effect of any
applicable Bankruptcy Law.
(7) The Company shall have delivered to the Trustee an
Officers' Certificate stating that the deposit was not made by the
Company with the intent of preferring the Holders of the Securities or
any Guaranty over the other creditors of the Company or any Guarantor
with the intent of defeating, hindering, delaying or defrauding
creditors of the Company, any Guarantor or others.
(8) The Company shall have delivered to the Trustee an
Officers' Certificate and an Opinion of Independent Counsel, each
stating that all conditions precedent provided for relating to either
the defeasance under Section 402 hereof or the covenant defeasance
under Section 403 hereof (as the case may be) have been complied with
as contemplated by this Section 404.
Opinions of Counsel or Opinions of Independent Counsel
required to be delivered under this Section shall be in form and substance
satisfactory to the Trustee, and may have qualifications customary for opinions
of the type required and counsel delivering such opinions may rely on
certificates of the Company or government or other officials customary for
opinions of the type required, including certificates certifying as to matters
of fact, including that various financial covenants have been complied with.
Section 405. Deposited Money and U.S. Government Obligations
to Be Held in Trust; Other Miscellaneous Provisions.
Subject to the provisions of the last paragraph of Section
1018 hereof, all United States dollars and U.S. Government Obligations
(including the proceeds thereof) deposited with the Trustee (or other qualifying
trustee, collectively for purposes of this Section 405, the "Trustee") pursuant
to Section 404 hereof in respect of the Defeased Securities shall be held in
trust and applied by the Trustee, in accordance with the provisions of such
Securities and this Indenture, to the payment, either directly or through any
Paying Agent (including the Company acting as its own Paying Agent), as the
Trustee may determine, to the Holders of such Securities of all sums due and to
become due thereon in respect of principal, premium, if any, and interest but
such money need not be segregated from other funds except to the extent required
by law.
The Company shall pay and indemnify the Trustee against any
tax, fee or other charge imposed on or assessed against the U.S. Government
Obligations deposited pursuant to Section 404 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 Defeased
Securities).
Anything in this Article Four to the contrary notwithstanding,
the Trustee shall deliver or pay to the Company from time to time upon Company
Request any
55
68
United States dollars or U.S. Government Obligations held by it as provided in
Section 404 hereof which, in the opinion of a nationally recognized firm of
independent public accountants expressed in a written certification thereof
delivered to the Trustee, are in excess of the amount thereof which would then
be required to be deposited to effect defeasance or covenant defeasance.
Section 406. Reinstatement.
If the Trustee or Paying Agent is unable to apply any United
States dollars or U.S. Government Obligations in accordance with Section 402 or
403 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 and each Guarantor's obligations under this
Indenture and the Securities (including, without limitation, the provisions of
Article Thirteen hereof) shall be revived and reinstated as though no deposit
had occurred pursuant to Section 402 or 403 hereof, as the case may be, until
such time as the Trustee or Paying Agent is permitted to apply all such United
States dollars or U.S. Government Obligations in accordance with Section 402 or
403 hereof, as the case may be; provided, however, that if the Company makes any
payment to the Trustee or Paying Agent of principal of, premium, if any, or
interest on any Security following the reinstatement of its obligations, the
Trustee or Paying Agent shall promptly pay any such amount to the Holders of the
Securities and the Company shall be subrogated to the rights of the Holders of
such Securities to receive such payment from the money held by the Trustee or
Paying Agent.
Section 407. Repayment of the 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 Security and remaining unclaimed for two years after
such principal, interest or premium, if any, has become due and payable, shall
be paid to the Company on its written request or (if then held by the Company)
shall be discharged from such trust. The Holder of such Security shall
thereafter, as an unsecured general creditor, look only to the Company for
payment thereof and all liability of the Trustee or such Paying Agent with
respect to such trust money, and all liability of the Company as trustee
thereof, shall thereupon cease, provided, however, that the Trustee or such
Paying Agent, before being required to make any such repayment, may at the
expense of the Company cause to be published once, in the New York Times and The
Wall Street Journal (national edition), notice that such money remains unclaimed
and that, after a date specified therein, which shall not be less than thirty
(30) days from the date of such notification or publication, any unclaimed
balance of such money then remaining shall promptly be repaid to the Company.
56
69
ARTICLE FIVE
REMEDIES
Section 501. Events of Default.
An "Event of Default" shall occur if:
(1) (a) The Company shall default in the payment of any
principal of any Security when the same becomes due, whether by
acceleration, at maturity, upon redemption, in connection with a Change
of Control or an Asset Sale, or otherwise, (b) the Company shall fail
to pay any interest, fee or penalty on the Securities, or any other
amount payable hereunder, within three (3) days after any such interest
or other amount becomes due in accordance with the terms hereof, or (c)
any other Obligor shall default (and such default shall continue
unremedied for a period of three (3) days) in the payment when due of
any fee with respect to any Security or any monetary Indenture
Obligation (other than those covered by clauses (a) or (b) hereof);
(2) Any Indenture Obligor (including the Company) fails to
observe or perform any covenant, condition or agreement on the part of
such Indenture Obligor to be observed or performed pursuant to Section
1005, 1006, 1007, 1008, 1009, 1010, 1011, 1012, 1013, 1014, 1020, 1317
or Article Eight hereof;
(3) Any Obligor (including the Company) fails to duly observe
or perform any other covenant, condition or agreement in, to and under
this Indenture or any other Indenture Document executed by it and such
failure continues for a period of 30 days;
(4) Any Obligor (including the Company) denies, disaffirms or
repudiate its obligations under this Indenture (including the
Guaranties of the Securities) or the Securities, or any other Indenture
Documents or Transaction Documents to which it is a party, or any
material provision of any Indenture Document or Transaction Document
shall cease to be valid or binding or any Obligor shall so assert in
writing;
(5) a default occurs (a) in the payment when due, whether by
acceleration or otherwise, of any amount (including principal, premium
or interest) in respect of any Indebtedness of any Obligor (including
the Company), including Indebtedness in respect of the New Tranche A
Term Notes (subject only to any applicable grace period pursuant to the
terms of such Indebtedness) but not including the Indebtedness
described in and covered by clause (1) of this Section 501, (b) a
default shall occur in the performance or observance of any obligation
or condition with respect to such Indebtedness if the effect of such
default is to accelerate the maturity of any such Indebtedness or such
default shall continue unremedied for any applicable period of time
sufficient to permit the holder or holders of such Indebtedness, or any
trustee or agent for such holders, to cause
57
70
such Indebtedness to become due and payable prior to its expressed
maturity, or (c) a default or an event of default shall occur in the
performance or observance of any obligation or condition of any
agreement (including any Transaction Document) to which any Obligor is
party or by which it is bound and such default or event of default
could reasonably be expected to have a Material Adverse Effect;
(6) a final judgment is, or final judgments are, entered by a
court or courts of competent jurisdiction against any Obligor or any
Obligor Subsidiary of such Obligor and such judgment or judgments
remain undischarged, unbonded or unstayed for a period of thirty (30)
days, provided that the aggregate of all such judgments equals or
exceeds $1,000,000 or any such individual judgment exceeds $500,000
(other than, in each case, any judgment as to which and only to the
extent that, a reputable insurance company has acknowledged coverage of
such claim in writing);
(7) issuance of a notice of Lien, levy, assessment, injunction
or attachment (other than pursuant to the Security Documents) against
the property of any Obligor having an aggregate value in excess of
$1,000,000 which is not stayed or lifted within thirty (30) days;
(8) any representation, warranty or certification of any
Obligor (including the Company) made or deemed to be made hereunder or
in any other Indenture Document or any Transaction Document executed by
it or in any other writing or certificate furnished by or on behalf of
any Obligor (including the Company) for the purposes of or in
connection with this Indenture or such other Indenture Document or any
Transaction Document is or shall be incorrect when made or deemed made
in any material respect;
(9) (a) any of the Security Documents ceases to give the
Collateral Agent a valid and perfected Lien of the priority required
thereby or the rights, powers and privileges purported to be created
thereby (other than in accordance with their respective terms or if
released by the Trustee, at the direction of all of the Holders in
accordance with the terms hereof), or (b) any of the Security Documents
is declared null and void, or (c) any Obligor denies any of its
obligations under any of the Security Documents or (d) any Collateral
becomes subject to any Lien other than the Liens created or permitted
by the Security Documents or the Indenture, or (e) any Collateral (or
part thereof) is seized or taken by any governmental agency or
authority;
(10) any Obligor or any Obligor Subsidiary, pursuant to or
within the meaning of any Bankruptcy Law:
(a) commences a voluntary case,
(b) consents to the entry of an order for relief
against it in an involuntary case in which it is a debtor,
58
71
(c) consents to the appointment of a Custodian of it
or for all or substantially all of its property,
(d) makes a general assignment for the benefit of its
creditors, or
(e) admits in writing its inability to pay debts as
the same become due;
(11) a court of competent jurisdiction enters an order or
decree under any Bankruptcy Law that:
(a) is for relief against any Obligor or any Obligor
Subsidiary in an involuntary case in which it is a debtor,
(b) appoints a Custodian of any Obligor or any
Obligor Subsidiary or for all or substantially all of their
respective property, or
(c) orders the liquidation of any Obligor or any
Obligor Subsidiary, and the order or decree remains unstayed
and in effect for sixty (60) days;
(12) any Obligor or any Obligor Subsidiary commits or suffers
to occur a Canadian Act of Bankruptcy; or
(13) the Guaranty of any Guarantor for any reason ceases to
be, or is asserted by any Guarantor or the Company not to be, in full
force and effect or enforceable in accordance with its terms, except to
the extent contemplated in the Guaranty.
Section 502. Acceleration.
If an Event of Default (other than an Event of Default
specified in clauses (10), (11) and (12) of Section 501 hereof) occurs and is
continuing for any reason, whether voluntary or involuntary, then, subject to
the provisions of the Common Security and Intercreditor Agreement, the Trustee,
by notice to the Company, or the Holders of at least 25% of the aggregate
principal amount of the Securities then Outstanding, by written notice to the
Company and the Trustee, may declare the unpaid principal of, premium, if any,
and any accrued interest on all the Securities to be immediately due and
payable. Upon such declaration, the principal, premium, if any, and interest on
the Securities shall become automatically and immediately due and payable,
without further notice, demand or presentment. If an Event of Default specified
in clause (10), (11) or (12) of Section 501 hereof occurs, such an amount shall
ipso facto automatically be and become immediately due and payable, without any
declaration or other act on the part of the Trustee or any Holder, and such
amount shall be dealt with in accordance with, and subject to, the provisions of
the Common Security and Intercreditor Agreement. Other than in respect of (i) a
continuing Default or Event of Default in the payment of the
59
72
principal of, premium, if any, or interest on any Security held by a
non-consenting Holder, or (ii) a covenant or provision hereof which under
Article Nine cannot be modified or amended without the consent of the Holder of
each Security then Outstanding, or (iii) any continuing Default or Event of
Default in respect of any matter involving the release of Collateral, which
shall not be waived without the consent of the Holder of each then Outstanding
Security, Holders of a majority of the aggregate principal amount of the
Securities then Outstanding (or, in the case of the failure to make a Change of
Control Offer pursuant to Section 1014 hereof, two-thirds of the aggregate
principal amount of Securities then Outstanding) by written notice to the
Trustee, may rescind an acceleration and its consequences if the rescission
would not conflict with any judgment or decree and if:
(a) the Company has paid or deposited with the Trustee a sum
sufficient to pay:
(i) all sums paid or advanced by the Trustee under this
Indenture and the reasonable compensation, expenses, disbursements and
advances of the Trustee, its agents and counsel;
(ii) all overdue interest on all Securities;
(iii) the principal of and premium, if any, on any Securities
which have become due otherwise than by such declaration of
acceleration and interest thereon at the rate borne by the Securities;
and
(iv) to the extent that payment of such interest is lawful,
interest upon overdue interest at the rate borne by the Securities; and
(b) all Events of Default, other than the non-payment of
principal of the Securities which have become due solely by such declaration of
acceleration, have been cured or waived as provided in Section 504 hereof. No
such rescission shall affect any subsequent Default or impair any right
consequent thereon provided in Section 504 hereof.
Section 503. Other Remedies.
If an Event of Default occurs and is continuing, the Trustee
may, in accordance with the provisions of the Common Security and Intercreditor
Agreement, pursue any available remedy (under this Indenture or otherwise) to
collect the payment of principal, premium, if any, or interest on the Securities
or to enforce the performance of any provision of the Securities or this
Indenture.
The Trustee may maintain a proceeding pursuant to the
provisions of the Common Security and Intercreditor Agreement even if it does
not possess any of the Securities or does not produce any of them in the
proceeding. A delay or omission by the Trustee or any Holder in exercising any
right or remedy accruing upon an Event of Default shall not impair the right or
remedy or constitute a waiver of or acquiescence in the Event of Default.
60
73
Except as otherwise provided with respect to the replacement
or payment of mutilated, destroyed, lost or stolen Securities in the last
paragraph of Section 308, no right or remedy herein conferred upon or reserved
to the Trustee or to the Holders is intended to be exclusive of any other right
or remedy, and every right and remedy shall, to the extent permitted by law, be
cumulative and in addition to every other right and remedy given hereunder or
now or hereafter existing at law or in equity or otherwise. The assertion or
employment of any right or remedy hereunder, or otherwise, shall not prevent the
concurrent assertion or employment of any other appropriate right or remedy,
including such other rights and remedies of the Holders as set forth in the
Common Security and Intercreditor Agreement.
Section 504. Waiver of Past Defaults.
The Holders of a majority of the aggregate principal amount of
the Securities then Outstanding (or, in the case of the failure by the Company
to make a Change of Control Offer pursuant to Section 1014 hereof, two-thirds of
the Holders of the aggregate principal amount of the Securities then
Outstanding), by notice to the Trustee, may waive an existing Default or Event
of Default and its consequences, except in respect of (i) a continuing Default
or Event of Default in the payment of the principal of, premium, if any, or
interest on any Security held by a non-consenting Holder, or (ii) a covenant or
provision hereof which under Article Nine, cannot be modified or amended without
the consent of the Holder of each Security then Outstanding, or (iii) any
continuing Default or Event of Default in respect of any matter involving the
release of Collateral, which shall not be waived without the consent of the
Holder of each then Outstanding Security. 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; provided, however, that
no such waiver shall extend to any subsequent or other Default or Event of
Default or impair any right consequent thereon.
Section 505. Control by Majority.
The Holders of a majority of the aggregate principal amount of
the Securities then Outstanding shall have the right to direct the time, method
and place of conducting any proceeding for any remedy available to the Trustee
or exercising any trust or power conferred on the Trustee with respect to the
Securities by this Indenture or the Security Documents. However, the Trustee may
refuse to follow any direction that conflicts with law or this Indenture, that
the Trustee determines may be unduly prejudicial to the rights of other Holders,
or that may involve the Trustee in personal liability.
Section 506. Limitation on Suits.
A Holder may pursue a remedy with respect to this Indenture or
the Securities only if:
(1) such Holder gives to the Trustee written notice of a
continuing Event of Default;
61
74
(2) the Holders of at least 25% of principal amount of the
Securities then Outstanding make a written request to the Trustee to
pursue the remedy;
(3) such Holder or Holders offer and, if requested, provide to
the Trustee indemnity satisfactory to the Trustee against any loss,
liability or expense;
(4) the Trustee does not comply with the request within ten
(10) days after receipt of the request and the offer and, if requested,
the provision of the indemnity; and
(5) during such ten (10) day period the Holders of a majority
of the aggregate principal amount of the Securities then Outstanding do
not give the Trustee a direction inconsistent with the request.
A Holder may not use this Indenture to affect, disturb or prejudice the rights
of another Holder or to obtain, or seek to obtain, a preference or priority over
another Holder or to enforce any right under this Indenture or under the
Securities, except in the manner herein provided and for the equal, ratable and
common benefit of all Holders of the Securities. For the protection and
enforcement of the provisions of this Section, each and every Holder and the
Trustee shall be entitled to such relief as can be given either at law or in
equity.
Section 507. Rights of Holders to Receive Payment.
Notwithstanding any other provision of this Indenture, the right of any Holder
of a Security to receive payment of principal, or premium, if any, and interest
on the Security, on or after the respective due dates expressed in the Security
(or, in the case of redemption or repurchase, on the Redemption Date or
repurchase date), 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 the Holder.
Section 508. Collection Suit by Trustee.
If an Event of Default specified in Section 501(1) or (2)
hereof occurs and is continuing, the Trustee is authorized to recover judgment
in its own name and as trustee of an express trust against any Obligor or any
Obligor Subsidiary for the whole amount of principal, premium, if any, and
interest remaining unpaid on the Securities and interest on overdue principal
and, to the extent lawful, premium and 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, subject to Article Thirteen.
If any Obligor or Obligor Subsidiary fails to pay such amounts
forthwith upon the demand of the Trustee pursuant to the immediately preceding
paragraph, the Trustee, in its own name and as trustee of an express trust, may
institute a judicial proceeding for the collection of the sums so due and
unpaid, may prosecute such proceeding to judgment or final decree, may enforce
the same against such Obligor, and may collect the moneys adjudged or decreed to
be payable in the manner provided by law out of the property of such Obligor
wherever situated.
62
75
If an Event of Default occurs and is continuing, the Trustee
may, in its discretion, proceed to protect and enforce its rights and the rights
of the Holders under this Indenture (including the Guaranties of the Securities)
and the Common Security and Intercreditor Agreement by such appropriate private
or judicial proceedings as the Trustee shall deem most effectual to protect and
enforce such rights, including, without limitation, seeking recourse against any
Guarantor pursuant to the terms of any Guaranty, whether for the specific
enforcement of any covenant or agreement in this Indenture or in aid of the
exercise of any power granted herein or therein, or to enforce any other proper
remedy, subject however to Section 505 hereof.
Section 509. 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 allowed in any judicial proceedings relative to any Obligor or any
Obligor Subsidiary, their creditors or their property. The Trustee shall be
entitled and empowered, subject to Article Thirteen, 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 606 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 606
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 which
the Holders of the Securities 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 Securities
or the rights of any Holder thereof, or to authorize the Trustee to vote in
respect of the claim of any Holder in any such proceeding.
Section 510. Priorities.
If the Trustee collects any money pursuant to this Article
Three, it shall pay out the money in the following order:
First: to (i) the Trustee, its agents and attorneys for
amounts due under Section 606 hereof, including payment of all
compensation, expenses and liabilities incurred, and all advances made,
by the Trustee and the costs and expenses of collection and (ii) the
Collateral Agent, pursuant to the terms of the Common Security and
Intercreditor Agreement;
63
76
Second: to (i) Holders for amounts due and unpaid on the
Securities for principal, premium, if any, and interest ratably,
without preference or priority of any kind, according to the amounts
due and payable on the Securities for principal, premium, if any, and
interest respectively, and (ii) subject to the Common Security and
Intercreditor Agreement, to the Administrative Agent for obligations
under the Term Loan Agreement, including amounts of principal of,
premium, if any, and interest on such obligations;
Third: without duplication, to Holders for any other Indenture
Obligations owing to the Holders under this Indenture or the
Securities; and
Fourth: 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.
Section 511. 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 pursuant to Section 507 hereof or a suit by Holders of more than 10% of
the aggregate principal amount of the Securities then Outstanding or any suit
instituted by any Holder for the enforcement of the payment of the principal of,
premium, if any, or interest on any Security on or after the respective Stated
Maturities expressed in such Security (or, in the case of redemption or
repurchase, on or after the Redemption Date or repurchase date).
Section 512. Waiver of Stay, Extension or Usury Laws.
Each Indenture Obligor 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 or
extension law or any usury or other law wherever enacted, now or at any time
hereafter in force, which would prohibit or forgive such Indenture Obligor from
paying all or any portion of the principal of, premium, if any, or interest on
the Securities contemplated herein or in the Securities or which may affect the
covenants or the performance of this Indenture. Each Indenture Obligor (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 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 had
been enacted.
64
77
ARTICLE SIX
THE TRUSTEE
Section 601. Notice of Defaults.
Within thirty (30) days after the occurrence of any Default,
the Trustee shall transmit by mail to all Holders, as their names and addresses
appear in the Security Register, notice of such Default hereunder known to the
Trustee unless such Default shall have been cured or waived.
Section 602. Certain Rights of Trustee.
Subject to the provisions of Sections 315(a) through 315(d) of
the Trust Indenture Act:
(a) the Trustee may rely and shall be protected in acting or
refraining from acting upon any resolution, certificate, statement, instrument,
opinion, report, notice, request, direction, consent, order, bond, debenture,
note, other evidence of Indebtedness or other paper or document believed by it
to be genuine and to have been signed or presented by the proper party or
parties;
(b) any request or direction of the Company mentioned herein
shall be sufficiently evidenced by a Company Request or Company Order and any
resolution of the Board of Directors may be sufficiently evidenced by a Board
Resolution;
(c) the Trustee may consult with counsel and any written
advice of such counsel or any Opinion of Counsel shall be full and complete
authorization and protection in respect of any action taken, suffered or omitted
by it hereunder or under any Security Document in good faith and in reliance
thereon in accordance with such advice or Opinion of Counsel;
(d) the Trustee shall be under no obligation to exercise any
of the rights or powers vested in it by this Indenture or any Security Document
at the request or direction of any of the Holders pursuant to this Indenture
unless such Holders shall have offered to the Trustee security or indemnity
satisfactory to the Trustee against the costs, expenses and liabilities which
might be incurred therein or thereby in compliance with such request or
direction;
(e) the Trustee shall not be liable for any action taken or
omitted by it in good faith and believed by it to be authorized or within the
discretion, rights or powers conferred upon it by this Indenture or any Security
Document other than any liabilities arising out of the gross negligence of the
Trustee;
(f) the Trustee shall not be bound to make any investigation
into the facts or matters stated in any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent, order,
approval, appraisal, bond, debenture, note, coupon, security or other paper or
document unless requested in writing to do so by
65
78
the Holders of not less than a majority of the aggregate principal amount of the
Securities then Outstanding; provided that the Trustee in its discretion may
make such further inquiry or investigation into such facts or matters as it may
deem fit, and, if the Trustee shall determine to make such further inquiry or
investigation, it shall be entitled to examine the books, records and premises
of the Company, personally or by agent or attorney;
(g) the Trustee may execute any of the trusts or powers
hereunder or perform any duties hereunder or under any Security Document either
directly or by or through agents or attorneys and the Trustee shall not be
responsible for any misconduct or negligence on the part of any agent or
attorney appointed with due care by it hereunder;
(h) no provision of this Indenture or any Security Document
shall require the Trustee to expend or risk its own funds or otherwise incur any
financial liability in the performance of any of its duties hereunder or in the
exercise of any of its rights or powers; and
(i) notwithstanding anything to the contrary set forth herein
or in any Security Document, under no circumstances shall the Trustee be
required to take possession of or maintain an action to foreclose upon any
Mortgaged Property.
Section 603. Trustee Not Responsible for Recitals,
Dispositions of Securities or Application of Proceeds Thereof.
The recitals contained herein and in the Securities, except
the Trustee's certificates of authentication, shall be taken as the statements
of the Company and the Trustee assumes no responsibility for their correctness.
The Trustee makes no representations as to the validity or sufficiency of this
Indenture or of the Securities, except that the Trustee represents that it is
duly authorized to execute and deliver this Indenture, authenticate the
Securities and perform its obligations hereunder and that the statements made by
it in a Statement of Eligibility on Form T-1, if any, supplied to the Company
are true and accurate subject to the qualifications set forth therein. The
Trustee shall not be accountable for the use or application by the Company of
the Securities or the proceeds thereof.
Section 604. Trustee and Agents May Hold Securities;
Collections; etc.
The Trustee, any Paying Agent, Security Registrar or any other
agent of the Company, in its individual or any other capacity, may become the
owner or pledgee of Securities, with the same rights it would have if it were
not the Trustee, Paying Agent, Security Registrar or such other agent and,
subject to Trust Indenture Act, Sections 310 and 311, may otherwise deal with
the Company and receive, collect, hold and retain collections from the Company
with the same rights it would have if it were not the Trustee, Paying Agent,
Security Registrar or such other agent.
66
79
Section 605. Money Held in Trust.
All moneys received by the Trustee shall, until used or
applied as herein provided, be held in trust for the purposes for which they
were received, but need not be segregated from other funds except to the extent
required by applicable provisions of law. Except for funds or securities
deposited with the Trustee pursuant to Article Four, the Trustee may invest all
moneys received by the Trustee, until used or applied as herein provided, in
Cash Equivalents in accordance with the written directions of the Company. The
Trustee shall not be liable for any losses incurred in connection with any
investments made in accordance with this Section 605, unless the Trustee acted
with gross negligence or in bad faith. With respect to any losses on investments
made under this Section 605, the Company is liable for the full extent of any
such loss.
Section 606. Compensation and Indemnification of Trustee and
Its Prior Claim.
The Company covenants and agrees to pay to the Trustee from
time to time, and the Trustee shall be entitled to, reasonable compensation for
all services rendered by it hereunder (which shall not be limited by any
provision of law in regard to the compensation of a trustee of an express trust)
and the Company covenants and agrees to pay or reimburse the Trustee and each
predecessor Trustee, upon its request, for all reasonable expenses,
disbursements and advances incurred or made by or on behalf of it in accordance
with any of the provisions of this Indenture (including the reasonable
compensation and the expenses and disbursements of its counsel and of all agents
and other persons not regularly in its employ), except any such expense,
disbursement or advance as may arise from its negligence or bad faith. The
Company also covenants to indemnify the Trustee and each predecessor Trustee
for, and to hold it harmless against, any loss, liability, tax, assessment or
other governmental charge (other than taxes applicable to the Trustee's
compensation hereunder) or expense incurred without gross negligence or bad
faith on such Trustee's part, arising out of or in connection with the
acceptance or administration of this Indenture or any Security Document or the
trusts hereunder and such Trustee's duties hereunder, including enforcement of
this Section 606 and also including any liability which the Trustee may incur as
a result of failure to withhold, pay or report any tax, assessment or other
governmental charge, and the costs and expenses of defending itself against or
investigating any claim of liability in the premises. The obligations of the
Company under this Section to compensate and indemnify the Trustee and each
predecessor Trustee and to pay or reimburse the Trustee and each predecessor
Trustee for expenses, disbursements and advances shall constitute an additional
obligation hereunder and shall survive the satisfaction and discharge of this
Indenture, or the resignation or removal of any Trustee.
To secure the Company's payment obligations in this Section
606, the Trustee shall have a Lien prior to the Securities on all money or
property held or collected by the Trustee, in its capacity as Trustee, except
money or property held in trust to pay principal of, premium, if any, or
interest on particular Securities.
67
80
When the Trustee incurs expenses or renders services in
connection with an Event of Default specified in Section 501(10), (11) or (12),
the expenses and the compensation for the services shall be preferred over the
status of Holders in any proceeding under any Bankruptcy Law and are intended to
constitute expenses of administration under any Bankruptcy Law.
Section 607. Conflicting Interests.
The Trustee shall comply with the provisions of Section 310(b)
of the Trust Indenture Act. If the Trustee has or shall acquire a conflicting
interest within the meaning of the Trust Indenture Act, the Trustee shall either
eliminate such interest or resign, to the extent and in the manner provided by,
and subject to the provisions of, the Trust Indenture Act and this Indenture.
Section 608. Corporate Trustee Required; Eligibility.
There shall at all times be a Trustee hereunder which shall be
eligible to act as trustee under Trust Indenture Act, Section 310(a)(1), and
which shall have a combined capital and surplus of at least $50,000,000 or which
shall be a wholly-owned subsidiary of a company that has a combined capital and
surplus of at least $50,000,000, to the extent there is an institution eligible
and willing to serve. If the Trustee does not have an office in The City of New
York, the Trustee may appoint an agent in The City of New York reasonably
acceptable to PCI and the Company to conduct any activities which the Trustee
may be required under this Indenture to conduct in The City of New York. If the
Trustee does not have an office in The City of New York or has not appointed an
agent in The City of New York, the Trustee shall be a participant in the
Depository Trust Company and its FAST distribution systems. If such corporation
published reports of condition at least annually, pursuant to law or to the
requirements of federal, state, territorial or District of Columbia supervising
or examining authority, then for the purposes of this Section, the combined
capital and surplus of such corporation shall be deemed to be its combined
capital and surplus as set forth in its most recent report of condition so
published. If at any time the Trustee shall cease to be eligible in accordance
with the provisions of this Section, the Trustee shall resign immediately in the
manner and with the effect hereinafter specified in this Article Six.
Section 609. Resignation and Removal; Appointment of Successor
Trustee.
(a) No resignation or removal of the Trustee and no
appointment of a successor trustee pursuant to this Article Six shall become
effective until the acceptance of appointment by the successor trustee under
Section 610 hereof.
(b) The Trustee, or any trustee or trustees hereafter
appointed, may at any time resign by giving written notice thereof to the
Company. Upon receiving such notice of resignation, the Company shall promptly
appoint a successor trustee by written instrument executed by authority of its
Board of Directors, a copy of which shall be delivered to the resigning Trustee
and a copy to the successor trustee. If an instrument of
68
81
acceptance by a successor trustee shall not have been delivered to the Trustee
within thirty (30) days after the giving of such notice of resignation, the
resigning Trustee may, or any Holder who has been a bona fide Holder of a
Security for at least six months may, on behalf of himself and all others
similarly situated, petition any court of competent jurisdiction for the
appointment of a successor trustee. Such court may thereupon, after such notice,
if any, as it may deem proper, appoint a successor trustee.
(c) The Trustee may be removed at any time by an Act of the
Holders of not less than a majority of the aggregate principal amount of the
Outstanding Securities, delivered to the Trustee and to the Company.
(d) If at any time:
(1) the Trustee shall fail to comply with the
provisions of Trust Indenture Act, Section 310(b) after
written request therefor by the Company or by any Holder who
has been a bona fide Holder of a Security for at least six
months, or
(2) the Trustee shall cease to be eligible under
Section 608 hereof and shall fail to resign after written
request therefor by the Company or by any Holder who has been
a bona fide Holder of a Security for at least six months, or
(3) the Trustee shall become incapable of acting or
shall be adjudged a bankrupt or insolvent, or a receiver of
the Trustee or of its property shall be appointed or any
public officer shall take charge or control of the Trustee,
its property or its affairs for the purpose of rehabilitation,
conservation or liquidation,
then, in any case, (i) the Company by a Board Resolution of its Board of
Directors, may remove the Trustee, or (ii) subject to Section 511 hereof, the
Holder of any Security who has been a bona fide Holder of a Security for at
least six months may, on behalf of himself and all others similarly situated,
petition any court of competent jurisdiction for the removal of the Trustee and
the appointment of a successor trustee. Such court may thereupon, after such
notice, if any, as it may deem proper, prescribe or remove the Trustee and
appoint a successor trustee.
(e) If the Trustee shall resign, be removed or become
incapable of acting, or if a vacancy shall occur in the office of Trustee for
any cause, the Company, by a Board Resolution of its Board of Directors, shall
promptly appoint a successor trustee. If, within one year after such
resignation, removal or incapability, or the occurrence of such vacancy, a
successor trustee shall be appointed by Act of the Holders of a majority of the
aggregate principal amount of the Securities then Outstanding, delivered to PCI,
the Company and the retiring Trustee, the successor trustee so appointed shall,
forthwith upon its acceptance of such appointment, become the successor trustee
and supersede the successor trustee appointed by the Company. If no successor
trustee shall have been so appointed by the Company or the Holders of the
Securities and accepted appointment in
69
82
the manner hereinafter provided, the Holder of any Security who has been a bona
fide Holder for at least six months may, subject to Section 511 hereof, on
behalf of himself and all others similarly situated, petition any court of
competent jurisdiction for the appointment of a successor trustee.
(f) The Company shall give notice of each resignation and each
removal of the Trustee and each appointment of a successor trustee by mailing
written notice of such event by first-class mail, postage prepaid, to the
Holders of Securities as their names and addresses appear in the Security
Register. Each notice shall include the name of the successor trustee and the
address of its Corporate Trust Office or agent hereunder.
Section 610. Acceptance of Appointment by Successor.
Every successor trustee appointed hereunder shall execute,
acknowledge and deliver to the Obligors and to the retiring Trustee an
instrument accepting such appointment, and thereupon the resignation or removal
of the retiring Trustee shall become effective and such successor trustee,
without any further act, deed or conveyance, shall become vested with all the
rights, powers, trusts and duties of the retiring Trustee as if originally named
as Trustee hereunder; provided, however, that on the written request of the
Company or the successor trustee, upon payment of its charges then unpaid, such
retiring Trustee shall pay over to the successor trustee all moneys at the time
held by it hereunder and shall execute and deliver an instrument transferring to
such successor trustee all such rights, powers, duties and obligations. Upon
request of any such successor trustee, each Indenture Obligor shall execute any
and all instruments to more fully and certainly vest in and confirm in such
successor trustee all such rights and powers. Any Trustee ceasing to act shall,
nevertheless, retain a prior claim upon all property or funds held or collected
by such Trustee or such successor trustee to secure any amounts then due such
Trustee pursuant to the provisions of Section 606 hereof.
No successor trustee with respect to the Securities shall
accept appointment as provided in this Section 610 unless at the time of such
acceptance such successor trustee shall be eligible to act as trustee under the
provisions of Trust Indenture Act, Section 310(a) and this Article Six and shall
have a combined capital and surplus of at least $50,000,000 or which shall be a
wholly-owned subsidiary of a company that has a combined capital and surplus of
at least $50,000,000 and have a Corporate Trust Office or an agent selected in
accordance with Section 608 hereof.
Upon acceptance of appointment by any successor trustee as
provided in this Section 610, the Company shall give notice thereof to the
Holders of the Securities, by mailing such notice to such Holders at their
addresses as they shall appear on the Security Register. If the acceptance of
appointment is substantially contemporaneous with the resignation, then the
notice called for by the preceding sentence may be combined with the notice
called for by Section 609 hereof. If the Company fails to give such notice
within ten (10) days after acceptance of appointment by the successor trustee,
the successor trustee shall cause such notice to be given at the expense of the
Company.
70
83
Section 611. Merger, Conversion, Consolidation or Succession
to Business.
Any corporation into which the Trustee may be merged or
converted or with which it may be consolidated, or any corporation resulting
from any merger, conversion or consolidation to which the Trustee shall be a
party, or any corporation succeeding to all or substantially all of the
corporate trust business of the Trustee, shall be the successor of the Trustee
hereunder, provided that such corporation shall be eligible under Trust
Indenture Act, Section 310(a) and this Article Six and shall have a combined
capital and surplus of at least $50,000,000 or which shall be a wholly-owned
subsidiary of a company that has a combined capital and surplus of at least
$50,000,000 and have a Corporate Trust Office or an agent selected in accordance
with Section 608 hereof without the execution or filing of any paper or any
further act on the part of any of the parties hereto.
If at the time such successor to the Trustee shall succeed to
the trusts created by this Indenture, any of the Securities shall have been
authenticated but not delivered, any such successor to the Trustee may adopt the
certificate of authentication of any predecessor Trustee and deliver such
Securities so authenticated. If at such time any of the Securities shall not
have been authenticated, any successor to the Trustee may authenticate such
Securities either in the name of any predecessor hereunder or in the name of
such successor trustee. In all such cases provided for under this paragraph,
such certificate shall have the full force which it has anywhere in the
Securities or in this Indenture, unless the certificate of the Trustee shall
have provided that the right to adopt the certificate of authentication of any
predecessor Trustee or to authenticate Securities in the name of any predecessor
Trustee shall apply only to its successor or successors by merger, conversion or
consolidation.
Section 612. Preferential Collection of Claims Against
Company.
If and when the Trustee shall be or become a creditor of the
Company (or other Indenture Obligor under the Guaranties and the Securities),
the Trustee shall be subject to the provisions of the Trust Indenture Act
regarding the collection of claims against the Company (or any such other
obligor). A Trustee who has resigned or been removed shall be subject to the
Trust Indenture Act, Section 311(a) to the extent indicated therein.
Section 613. Certain Duties and Responsibilities. Except
during the continuance of an Event of Default,
(a) the Trustee undertakes to perform such duties and
only such duties as are specifically set forth in this
Indenture, and no implied covenants or obligations shall be
read into this Indenture against the Trustee; and
(b) in the absence of bad faith or actual knowledge
on its part, the Trustee may conclusively rely, as to the
truth of the statements and the
71
84
correctness of the opinions expressed therein, upon
certificates or opinions furnished to the Trustee and
conforming to the requirements of this Indenture, but in the
case of any such certificates or opinions which by any
provision hereof are specifically required to be furnished to
the Trustee, the Trustee shall be under a duty to examine the
same to determine whether or not they conform to the
requirements of this Indenture but shall not be required to
verify the contents thereof.
(2) In case an Event of Default has occurred and is
continuing, the Trustee shall exercise such of the rights and powers
vested in it by this Indenture, and use the same degree of care and
skill in their exercise, as a prudent person would exercise or use
under the circumstances in the conduct of such person's own affairs.
ARTICLE SEVEN
HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY
Section 701. Company to Furnish Trustee Names and Addresses of
Holders.
The Company shall furnish or cause to be furnished to the
Trustee
(a) semiannually, not more than ten (10) days after each
Regular Record Date, a list, in such form as the Trustee may reasonably require,
of the names and addresses of the Holders as of such Regular Record Date; and
(b) at such other times as the Trustee may request in writing,
within thirty (30) days after receipt by the Company of any such request, a list
of similar form and content as of a date not more than fifteen (15) days prior
to the time such list is furnished;
provided, however, that if and so long as the Trustee shall be the Security
Registrar, no such list need be furnished.
Section 702. Preservation of Information; Disclosure of Names
and Addresses of Holders.
(a) The Trustee shall preserve, in as current a form as is
reasonably practicable, the names and addresses of Holders contained in the most
recent list furnished to the Trustee as provided in Section 701 and the names
and addresses of Holders received by the Trustee in its capacity as Security
Registrar. The Trustee may destroy any list furnished to it as provided in
Section 701 upon receipt of a new list so furnished.
72
85
(b) The rights of Holders to communicate with other Holders
with respect to their rights under this Indenture or under the Securities, and
the corresponding rights and duties of the Trustee, shall be as provided by the
Trust Indenture Act.
(c) Every Holder of Securities, by receiving and holding the
same, agrees with the Company and the Trustee that neither the Company nor the
Trustee nor any agent of either of them shall be held accountable by reason of
the disclosure of any information as to the names and addresses of the Holders
in accordance with Trust Indenture Act, Section 312, regardless of the source
from which such information was derived, and that the Trustee shall not be held
accountable by reason of mailing any material pursuant to a request made under
Trust Indenture Act, Section 312.
Section 703. Reports by Trustee.
Within sixty (60) days after May 15 of each year commencing
with the first May 15 after the Closing Date, the Trustee shall transmit by mail
to all Holders, as their names and addresses appear in the Security Register, as
provided in Trust Indenture Act, Section 313(c), a brief report dated as of such
May 15 in accordance with and to the extent required by Trust Indenture Act,
Section 313(a). The Trustee shall also comply with Trust Indenture Act, Section
313(b).
Commencing at the time this Indenture is qualified under the
Trust Indenture Act, a copy of each report at the time of its mailing to Holders
shall be filed with the Commission and each stock exchange on which the
Securities are listed of which the Company has notified the Trustee in writing.
The Company shall notify the Trustee when Securities are listed on any stock
exchange.
Section 704. Reports by Company and Guarantors.
PCI and the Company will furnish, or will cause to be
furnished, to each Holder and the Trustee copies of the following financial
statements, reports, notices and information and shall perform, or cause to be
performed, such other covenants as are set forth below.
(a) Annual Audited Financial Statements. Deliver, within
ninety (90) days after each Fiscal Year, a copy of the annual audited financial
statements of PCI, the Company and their respective Subsidiaries, as well as of
any of the Guarantors as are required to file their annual audited financial
statements with the Commission pursuant to the Securities Act or the Exchange
Act and the rules and regulations thereunder, prepared on a consolidated and
consolidating basis and in conformity with GAAP and certified by an independent
certified public accountant who shall be satisfactory to the Trustee, together
with (i) a certificate from such accountant to the effect that, in making the
examination necessary for the signing of such annual audit report, such
accountant has not become aware of any Default or Event of Default that has
occurred and is continuing and that relates to financial or other accounting
matters or the covenants set forth in Article Ten or, if such accountant has
become aware of any such event, describing it, and (ii) if prepared in
connection with the annual audit report, the annual operating statements
73
86
of PCI, the Company and such Subsidiaries prepared on a consolidating basis and
in conformity with GAAP applied in a manner consistent with the audit report
referred to in preceding clause (a)(i) of this Section 704, signed by PCI's, the
Company's and such other Guarantor's chief financial officer or assistant
treasurer.
(b) Quarterly Financial Statements. Deliver, within forty-five
(45) days after the end of each Fiscal Quarter, a copy of the unaudited
financial statements of PCI, the Company and their respective Subsidiaries, as
well as of any Guarantors as are required to file their quarterly financial
statements with the Commission pursuant to the Securities Act or the Exchange
Act, and the rules and regulations thereunder, prepared on a consolidating and
consolidated basis and in conformity with GAAP and applied in a manner
consistent with the audit report referred to in preceding clause (a)(i) of this
Section 704, signed by PCI's, the Company's and such other Guarantor's chief
financial officer and consisting of at least a balance sheet as at the close of
such Fiscal Quarter and an income statement and cash flow statement for such
Fiscal Quarter compared, in each case, to the actual results for the same period
during the prior Fiscal Year and to the Company's budget delivered pursuant to
clause (c) below for the current Fiscal Year.
(c) (i) File, or caused to be filed, all applicable periodic
reports and other reports and documents pursuant to Section 13 or 15(d) of the
Exchange Act, and the rules and regulations thereunder, within the time limits
periods specified therein, and remain, and cause each other applicable Obligor
and applicable Obligor Subsidiary to remain, a company reporting to the
Commission under Section 13 or 15(d) of the Exchange Act and such rules and
regulations or part of a group of consolidated companies, one or more whom
reports or report to the Commission in such manner, and (ii) within five (5)
days of such filing or report having been made, (x) transmit by mail to Holders
of Securities, as their names and addresses appear in the Security Register,
without cost to such Holders, and (y) file with the Trustee copies of each
filing and report made by any Obligor or any Obligor Subsidiary, or any third
party with respect to any Obligor or Obligor Subsidiary with or to any
securities exchange or the Commission or any Securities Commission in Canada,
including any registration statements and all amendments thereto filed with
respect to the Securities, or as required pursuant to this Indenture or any
other document relating thereto.
(d) Give prompt notice of the occurrence of (i) a Default or
an Event of Default or (ii) a default by any Obligor or any Obligor Subsidiary
under any material note, indenture, loan agreement, mortgage, lease, deed or
other material similar agreement to which any Obligor or any Obligor Subsidiary,
as appropriate, is a party or by which it is bound (including any of the
Indenture Documents and Transaction Documents).
(e) Deliver any statement, report, notice and/or information
required to be delivered to the Collateral Agent pursuant to any of the Security
Documents at the same time as delivery thereof to the Collateral Agent.
74
87
(f) Provide any information required to be provided pursuant
to other provisions of this Indenture, and such other reports or information
from time to time requested by the Trustee or any Holder.
The Trustee has no duty to review any financial or other reports for purposes of
determining compliance with this or any other provisions of this Indenture.
ARTICLE EIGHT
CONSOLIDATION, MERGER,
CONVEYANCE, TRANSFER OR LEASE
Section 801. When Indenture Obligors May Merge, Etc.
No Indenture Obligor shall, nor shall it cause or permit any
of its Obligor Subsidiaries to, consolidate with or merge into, or sell, assign,
convey, lease or transfer all or substantially all of its assets and those of
its Subsidiaries taken as a whole to, any Person, unless each of the following
conditions in this Section 801 is satisfied:
(a) the resulting, surviving or transferee Person expressly
assumes all the obligations of such Indenture Obligor and each of its
Obligor Subsidiaries under this Indenture and each other Indenture
Document to which such Indenture Obligor and/or Obligor Subsidiaries is
a party pursuant to amendments in form and substance reasonably
satisfactory to the Trustee (without prejudice, in the case of the
Transaction Documents, to the terms thereof);
(b) such resulting, surviving or transferee Person is
organized and existing under the laws of the United States of America,
a state thereof or the District of Columbia or, in the case of an
assignor or transferee of the assets of the Company, under the laws of
Canada or one of Canada's provinces;
(c) at the time of the occurrence of such transaction and
after giving effect to such transaction on a pro forma basis, such
Person could incur $1.00 of additional Indebtedness (assuming a market
rate of interest with respect to such additional Indebtedness);
(d) (x) at the time of the occurrence of such transaction and
after giving effect to such transaction on a pro forma basis, the
Consolidated Net Worth of such Person is greater than the Consolidated
Net Worth of the Obligors and the Obligor Subsidiaries, taken together,
immediately prior to such transaction, and (y) the Administrative
Agent, the Lenders, the Trustee and the Holders of the Securities shall
have received an opinion of a nationally recognized investment banking
firm not affiliated to any Person involved in any such merger or
consolidation relating to fairness and confirming that the position of
the Lenders and the Holders of the Securities will not in any way be
less favorable than it was immediately prior to any such merger or
consolidation as a result of such merger or consolidation;
75
88
(e) each Guarantor, to the extent applicable, will acknowledge
and confirm in writing that its Guaranty hereunder will apply to such
Person's obligations under this Indenture, the Securities, each other
Indenture Document and its guaranty under the New Tranche A Term Notes
and the Loan Documents will apply to such Person's obligations under
the Transaction Documents;
(f) immediately before and immediately after giving effect to
such transaction and treating any Indebtedness which becomes an
obligation of any Obligor or Obligor Subsidiary or of such Person as a
result of such transaction as having been incurred by such Obligor or
such Obligor Subsidiary or such Person, as the case may be, at the time
of such transaction, no Default or Event of Default shall have occurred
and be continuing; and
(g) the Company shall have received an Opinion of Independent
Counsel in Canada to the effect that (x) any payment of interest or
principal on the Securities by the Company to a Holder will, after the
amalgamation, consolidation, merger, sale, assignment, conveyance,
transfer, lease or other disposition of assets, be exempt from Canadian
withholding tax, if the Holder is or is deemed to be a non-resident of
Canada, deals at arm's length with the resulting, surviving or
transferee Person for purposes of the Income Tax Act (Canada) at the
time of making the payment, and (y) no other taxes on income (including
taxable capital gains) will be payable under the Income Tax Act
(Canada) by a Holder of the Securities who is or who is deemed to be a
non-resident of Canada in respect of the acquisition, ownership or
disposition of the Securities, including the receipt of principal
thereof, or premium, if any, or interest, thereon, provided that such
Holder does not use or hold, and is not deemed to use or hold, the
Securities in carrying on a business in Canada for purposes of the
Income Tax Act (Canada) and, in the case of a Holder of Securities who
carries on an insurance business in Canada and elsewhere, the
Securities are not effectively connected with its Canadian insurance
business.
The Company shall deliver to the Trustee, prior to the consummation of any
proposed transaction pursuant to this Section 801, an Officers' Certificate to
the foregoing effect and an Opinion of Counsel, stating that the proposed
transaction and such amendments comply with this Indenture. The provisions of
this Section 801 will not apply to any transaction (including any Asset Sale
made in accordance with Section 1009 with respect to any Guarantor) if the
Guaranty of such Guarantor is released in connection with such transaction in
accordance with the applicable provisions of this Indenture and the other
Indenture Documents.
Section 802. Successor Substituted.
Upon any consolidation or merger, or any sale, assignment,
conveyance, transfer or disposition of all or substantially all of the
properties and assets of any Obligor or Obligor Subsidiary in accordance with
Section 801 hereof, the successor Person formed by such consolidation or into
which such Obligor or Obligor Subsidiary is merged or the successor Person to
which such sale, assignment, conveyance, transfer,
76
89
lease or disposition is made shall succeed to, and be substituted for, and may
exercise every right and power of, PCI, the Company or a Guarantor, as the case
may be, under this Indenture, the Securities, its Guaranty, and/or the other
Indenture Documents, as the case may be, with the same effect as if such
successor had been named as PCI, the Company or a Guarantor, as the case may be,
herein, in the Securities, the Guaranty, and such other Indenture Documents, as
the case may be. When a successor assumes all the obligations of its predecessor
under this Indenture, the Securities, a Guaranty, and/or other Indenture
Documents, as the case may be, the predecessor shall be released from those
obligations; provided that in the case of a transfer by lease, the predecessor
shall not be released from the principal of, premium, if any, or interest on the
Securities or any other Indenture Obligations relating to, this Indenture, the
Securities, each Guaranty, or the other Indenture Documents, as the case may be.
Notwithstanding anything in the foregoing, any consolidation
or merger, or any sale, assignment, conveyance, transfer or disposition of
properties or assets under this Article Eight shall be subject to the provisions
of Section 1014 and Section 1109 hereof.
ARTICLE NINE
SUPPLEMENTAL INDENTURES
Section 901. Supplemental Indentures and Agreements without
Consent of Holders.
(a) Without the consent of any Holders, the Indenture Obligors
and their respective Obligor Subsidiaries (if a party to the applicable document
or instrument), when authorized by Board Resolutions of their respective Boards
of Directors, and the Trustee, at any time and from time to time, may enter into
one or more indentures supplemental hereto or agreements or other instruments
with respect to any Guaranty, in form and substance satisfactory to the Trustee,
for any of the following purposes:
(i) to cure any ambiguity, defect or inconsistency herein or
therein;
(ii) to provide for the assumption pursuant to Article Eight
of the Company's and/or a Guarantor's obligations to the Holders in the
case of a merger, consolidation or sale of assets;
(iii) to provide for uncertificated Securities in addition to
or in place of certificated Securities;
(iv) to make any change herein or therein that does not
adversely affect the rights hereunder or thereunder of any Holder;
(v) to comply with requirements of the Commission in order to
effect or maintain the qualification of this Indenture under the Trust
Indenture Act;
77
90
(vi) to add a Guarantor pursuant to the requirements of
Section 1317 hereof;
(vii) to evidence and provide the acceptance of the
appointment of a successor trustee hereunder;
(viii) to provide additional collateral for the Securities or
the Guaranties or other Indebtedness permitted to be secured by the
Collateral, and in connection therewith (and only in such limited
respect), to modify covenants, to provide additional indemnity to the
Trustee, and to modify other provisions of this Indenture, the
Securities and the Guaranties that relate solely to such additional
collateral or that will or may be impacted by the providing of such
collateral, and to enter into agreements, documents or other
instruments to effect the foregoing, including, without limitation,
intercreditor and collateral agency agreements relating to Liens on
such collateral on a pari passu basis in favor of the Trustee for the
benefit of the Holders;
(ix) to add to the covenants of any Indenture Obligor or any
other obligor upon the Securities for the benefit of the Holders, or to
surrender any right or power herein or therein conferred upon such
Indenture Obligor or any other obligor upon the Securities herein or
therein, in the Securities or in any Guaranty; or
(x) to add any additional Events of Default for the benefit of
the Holders of all Securities.
(b) Without the consent of any Holders, the Trustee, on behalf
of the Holders, at any time and from time to time, may enter, subject to the
provisions of the relevant Indenture Documents (other than the Indenture), into
one or more amendments, supplements or other modifications to such other
Indenture Document, in form and substance satisfactory to the Trustee for any of
the following purposes:
(i) to cure any ambiguity, defect or inconsistency therein;
(ii) to provide for the assumption pursuant to Article Eight
of the Company's and/or a Guarantor's obligations to the Holders in the
case of a merger, consolidation or sale of assets;
(iii) to make any change therein that does not adversely
affect the rights hereunder or thereunder of any Holder;
(iv) to effectuate and evidence the succession of another
entity to any Obligor and the assumption by any successor of the
covenants of such Obligor, under the Indenture Documents to which such
Obligor is a party;
(v) to evidence and provide the acceptance of the appointment
of a successor trustee hereunder;
78
91
(vi) to provide additional collateral for the Securities or
the Guaranties or other Indebtedness permitted to be secured by the
Collateral, and in connection therewith (and only in such limited
respect), to modify covenants, to provide additional indemnity to the
Trustee, and to modify other provisions of this Indenture, the
Securities and the Guaranties that relate solely to such additional
collateral or that will or may be impacted by the providing of such
additional collateral, and to enter into agreements, documents or other
instruments to effect the foregoing, including, without limitation,
intercreditor and collateral agency agreements relating to Liens on
such collateral on a pari passu basis in favor of the Trustee for the
benefit of the Holders; or
(vii) to add to the covenants of any Obligor or any other
obligor upon the Securities for the benefit of the Holders, or to
surrender any right or power therein conferred upon such Obligor or any
other obligor upon the Securities therein; or
(viii) to add any additional Events of Default for the benefit
of the Holders of all Securities.
Section 902. Supplemental Indentures and Agreements with
Consent of Holders.
With the consent of the Holders of not less than a majority of
the aggregate principal amount of the Securities then Outstanding, by Act of
said Holders delivered to the Company, each Indenture Obligor and their
respective Obligor Subsidiaries (if a party thereto), when authorized by Board
Resolutions of their respective Boards of Directors, and the Trustee may enter
into an indenture or indentures supplemental hereto or agreements or other
instruments with respect to any Guaranty or any other Indenture Documents
(subject, in the case of such other Indenture Documents to the applicable
provisions of such Indenture Documents) in form and substance satisfactory to
the Trustee for the purpose of adding any provisions to or changing in any
manner or eliminating any of the provisions of this Indenture or of modifying in
any manner the rights of the Holders under this Indenture, the Securities, any
Guaranty or any other Indenture Documents, as the case may be; provided,
however, that no such supplemental indenture, agreement or instrument shall,
without the consent of the Holder of each Outstanding Security affected thereby:
(i) reduce the percentage of the aggregate principal amount of
Securities, the consent of whose Holders is required for any amendment,
supplement or waiver (or compliance with certain provisions of this
Indenture or certain defaults hereunder and their consequences)
provided for in this Indenture and/or such other Indenture Document, as
applicable;
(ii) reduce the rate of, or change the time for payment of,
any premium, if any, or interest (including Defaulted Interest),
payable on any Security, or change the place of payment where, or the
coin or currency in which, any Security or any premium, if any, or
interest thereon is payable, or impair the
79
92
right to institute suit for the enforcement of any such payment on or
after the Stated Maturity thereof (or, in the case of redemption, on or
after the Redemption Date);
(iii) reduce the principal of or change the Stated Maturity of
any Security, or alter the optional redemption provisions, or alter the
price at which the Company shall offer to purchase such Securities
pursuant to Sections 1014 or 1109 hereof;
(iv) make any Security payable in money other than that stated
in the Security;
(v) make any change in Sections 504 or 507 hereof;
(vi) waive a Default or Event of Default in the payment of
principal of, premium, if any, or interest on the Securities, including
any such obligation arising under Sections 1009, 1014 or Section 1109
hereof (except a rescission of acceleration of the Securities pursuant
to Section 502 hereof by the Holders of at least a majority of the
aggregate principal amount of the Securities then Outstanding (or in
the case of the failure to make a Change of Control Offer, two-third of
the aggregate principal amount of the Securities then Outstanding) and
a waiver of the payment default that resulted from such acceleration);
(vii) waive a purchase payment required to be made under
Sections 1009, 1014 or 1109 or a payment under Article Thirteen hereof
with respect to any Security;
(viii) affect the ranking of the Securities;
(ix) affect adversely the interests, rights or obligations of
the Trustee or the Collateral Agent, unless consented to by the Trustee
or the Collateral Agent, as applicable;
(x) release (x) any Guarantor from its obligations under its
Guaranty, or (y) any Collateral other than pursuant to the terms of the
Indenture, such Guaranty or the applicable Security Document; or
(xi) make any change in the provisions of this Section 902.
Further, no such supplemental indenture shall, without the
consent of the Holders of all of the Securities then Outstanding, permit the
creation of any Lien prior to or pari passu with the Lien of the Security
Documents with respect to any of the Collateral, or terminate the Liens of the
Security Documents, on any Collateral or deprive any Holder of the security
afforded by the Lien of the Security Documents, except to the extent expressly
permitted by this Indenture, the Common Security and Intercreditor Agreement or
any of the Security Documents.
80
93
Upon the written request of the Indenture Obligors and their
respective Obligor Subsidiaries (if parties thereto), accompanied by a copy of
Board Resolutions of their respective Boards of Directors, authorizing the
execution of any such supplemental indenture, Guaranty or Indenture Document,
and upon the filing with the Trustee of evidence of the consent of Holders as
aforesaid, the Trustee shall, subject to Section 903 hereof, join with the
Indenture Obligors and such Obligor Subsidiaries in the execution of such
supplemental indenture, Guaranty or Indenture Document.
It shall not be necessary for any Act of Holders under this
Section to approve the particular form of any proposed supplemental indenture or
Guaranty or agreement or instrument relating to any Guaranty or any other
Indenture Document, but it shall be sufficient if such Act shall approve the
substance thereof.
Section 903. Execution of Supplemental Indentures and
Agreements.
In executing, or accepting the additional trusts created by,
any supplemental indenture, agreement or instrument permitted by this Article
Nine or the modifications thereby of the trusts created by this Indenture, the
Trustee shall be entitled to receive, and (subject to Trust Indenture Act,
Section 315(a) through 315(d) and Section 602 hereof) shall be fully protected
in relying upon, an Opinion of Counsel and an Officers' Certificate stating that
the execution of such supplemental indenture, agreement or instrument is
authorized or permitted by this Indenture, that no consent is required or that
all requisite consents have been received and that such supplemental indenture,
agreement or instrument constitutes the legal, valid and binding obligation of
the Indenture Obligors and Obligor Subsidiaries or their respective successors,
as the case may be, enforceable against such entity in accordance with its
terms, subject to customary exceptions. The Trustee may, but shall not be
obligated to, enter into any such supplemental indenture, agreement or
instrument which affects the Trustee's own rights, duties or immunities under
this Indenture, any Guaranty or otherwise.
Section 904. Revocation Effect of Supplemental Indentures.
Until a supplemental indenture, amendment or waiver becomes
effective, a consent to it by a Holder of a Security is a continuing consent by
the Holder and every subsequent Holder of a Security or portion of a Security
that evidences the same debt as the consenting Xxxxxx's Security, even if
notation of consent is not made on any Security.
Upon the execution of any supplemental indenture under this
Article Nine, this Indenture shall be modified in accordance therewith and such
supplemental indenture shall form a part of this Indenture for all purposes and
every Holder of Securities theretofore or thereafter authenticated and delivered
hereunder shall be bound thereby.
Section 905. Conformity with Trust Indenture Act.
Every supplemental indenture executed pursuant to this Article
Nine shall conform to the requirements of the Trust Indenture Act as then in
effect.
81
94
Section 906. Reference in Securities to Supplemental
Indentures.
Securities authenticated and delivered after the execution of
any supplemental indenture pursuant to this Article Nine may bear a notation in
form satisfactory to the Trustee as to any matter provided for in such
supplemental indenture. If the Company shall so determine, new Securities so
modified as to conform to any such supplemental indenture may be prepared and
executed by the Company and each Guarantor and authenticated and delivered by
the Trustee in exchange for Outstanding Securities.
ARTICLE TEN
COVENANTS
Section 1001. Payment of Principal, Premium and Interest.
The Company shall duly and punctually pay the principal of,
premium, if any, and interest on the Securities in accordance with the terms of
the Securities and this Indenture.
Section 1002. Maintenance of Office or Agency.
The Company shall maintain (or cause to be maintained) an
office or agency where Securities may be presented or surrendered for payment.
The Company also shall maintain (or cause to be maintained) in The City of New
York an office or agency where Securities may be surrendered for registration or
transfer, redemption or exchange and where notices and demands to or upon the
Company in respect of the Securities and this Indenture may be served. Such
office or agency shall be initially at the Corporate Trust Office. The Company
shall give prompt written notice to the Trustee of the location and any change
in the location of any such offices or agencies. If at any time the Company
shall fail to maintain (or cause to be maintained) any such required offices or
agencies or shall fail to furnish the Trustee with the address thereof, such
presentations, surrenders, notices and demands may be made or served at the
Corporate Trust Office of the Trustee described above and the Company hereby
appoints the Trustee as its agent to receive all such presentations, surrenders,
notices and demands.
The Company may from time to time designate one or more
additional offices or agencies (in or outside of The City of New York) where the
Securities may be presented or surrendered for any or all such purposes, and may
from time to time rescind such designation. The Company shall give prompt
written notice to the Trustee of any such designation or rescission and any
change in the location of any such office or agency.
Section 1003. Compliance Certificate.
(a) Each of PCI and the Company shall deliver to the Trustee,
within ninety (90) days after the end of each fiscal year of PCI and the
Company, an Officers'
82
95
Certificate stating that a review of the activities of each Obligor and each
Obligor Subsidiary during the period in respect of which the financial
statements have been furnished pursuant to Section 704(a) hereof, and the
preceding fiscal year has been made under the supervision of the signing
officers with a view to determining whether each has kept, observed, performed
and fulfilled its Indenture Obligations under this Indenture and the other
Indenture Documents, and further stating, as to each such officer signing such
certificate, that to the best of his or her knowledge each has kept, observed,
performed and fulfilled each and every covenant contained in this Indenture and
the other Indenture Documents to which it is a party and is not in default in
the performance or observance of any of the terms, provisions and conditions
hereof or thereof (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 each is taking or proposes to take with respect
thereto).
(b) Each of PCI and the Company shall deliver to the Trustee,
within forty-five (45) days after the end of the first three quarters of each
fiscal year, an Officers' Certificate stating that a review of the activities of
each Obligor and each Obligor Subsidiary during the period in respect of which
the financial statements have been furnished pursuant to Section 704(b) hereof,
and the preceding fiscal quarter has been made under the supervision of the
signing officers with a view to determining whether each has kept, observed,
performed and fulfilled its Indenture Obligations under this Indenture and the
other Indenture Documents, and further stating, as to each such officer signing
such certificate, that to the best of his or her knowledge each has kept,
observed, performed and fulfilled each and every covenant contained in this
Indenture and the other Indenture Documents to which it is a party and is not in
default in the performance or observance of any of the terms, provisions and
conditions hereof or thereof (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 each is taking or proposes to take with
respect thereto).
(c) [Intentionally omitted.]
(d) Each Indenture Obligor shall, so long as any of the
Securities are outstanding, deliver to the Trustee, forthwith upon any Officer
becoming aware of (i) any Default or Event of Default, or (ii) a default by any
Obligor or any Obligor Subsidiary under any material note, indenture, loan
agreement, mortgage, lease, deed or other material similar agreement to which
any Obligor or any Obligor Subsidiary, as appropriate, is a party or by which it
is bound (including any of the Indenture Documents and Transaction Documents),
an Officers' Certificate specifying such Default, Event of Default or such other
default or event of default and what action the Company is taking or proposes to
take with respect thereto.
Section 1004. Taxes.
Each Indenture Obligor shall, and shall cause each of its
Obligor Subsidiaries to, pay prior to delinquency (a) all federal, state and
other material Taxes, assessments and governmental levies upon it, its income
and its properties, and (b) all
83
96
lawful claims for labor, materials and supplies which, if unpaid, might by law
become a lien upon the property of the Indenture Obligor or any of its Obligor
Subsidiaries, except as are being contested in good faith and by appropriate
proceedings diligently conducted by the Indenture Obligors and in respect of
which appropriate reserves are being maintained in accordance with GAAP.
Section 1005. Jurisdiction, Service of Process and Venue
Immunity; Judgment Currency.
(a) Each Indenture Obligor irrevocably agrees that any suit,
action or proceeding with respect to this Indenture or any other Indenture
Document or any judgment entered by any court in respect thereof may be brought
in the United States District Court for the Southern District of New York, in
the Supreme Court of the State of New York sitting in New York County (including
its Appellate Division), or in any other appellate court in the State of New
York, as the party commencing such suit, action or proceeding may elect in its
sole discretion, and each Indenture Obligor hereby irrevocably submits to the
exclusive jurisdiction of such courts for the purpose of any such suit, action,
proceeding or judgment. Each Indenture Obligor further submits, for the purpose
of any suit, action, proceeding or judgment brought or rendered against any
Collateral or other property, to the appropriate courts of the jurisdiction
where such Collateral or other property may be found.
(b) Each Indenture Obligor agrees that service of all writs,
process and summonses in any such suit, action or proceeding brought in any
Federal or state court located in The City of New York may be made upon CT
Corporation, presently located at 000 Xxxxx Xxxxxx, 00xx Xxxxx, Xxx Xxxx, Xxx
Xxxx 00000, X.X.X. (the "U.S. Process Agent"), and each Indenture Obligor hereby
confirms and agrees that the U.S. Process Agent has been duly and irrevocably
appointed as its agent and true and lawful attorney-in-fact in its name, place
and stead to accept such service of any and all such writs, process and
summonses, and agrees that the failure of the U.S. Process Agent to give any
notice of any such service of process to the applicable Indenture Obligor shall
not impair or affect the validity of such service or of any judgment based
thereon. Each Indenture Obligor hereby further irrevocably consents to the
service of process in any suit, action or proceeding in such courts by the
mailing thereof by registered or certified mail, postage prepaid, at its address
set forth in Section 106 hereof or by personal service within or without the
jurisdiction of its domicile.
(c) Nothing herein shall in any way be deemed to limit the
ability of the Trustee or the Holders to serve any such writs, process or
summonses in any other manner permitted by applicable law or to obtain
jurisdiction over any Indenture Obligor in such other jurisdictions, and in such
manner, as may be permitted by applicable law.
(d) Each Indenture Obligor hereby irrevocably waives, to the
fullest extent permitted by applicable law, any objection that it may now or
hereafter have to the laying of the venue of any suit, action or proceeding
arising out of or relating to this Indenture or any other Indenture Document
brought in the Supreme Court of the State of New York, County of New York, in
the United States District Court for the Southern
84
97
District of New York or in the courts of the jurisdiction of its domicile or in
the courts of the jurisdiction where any Collateral or other property of such
Person may be found, and hereby further irrevocably waives, to the fullest
extent permitted by applicable law, any claim that any such suit, action or
proceeding brought in any such court has been brought in an inconvenient forum.
(e) To the extent that any Indenture Obligor may be or become
entitled, in any judicial proceeding which may at any time be commenced with
respect to this Indenture or any other Indenture Document, to claim for itself
or the Collateral or its other property or revenues any immunity from suit,
court jurisdiction, attachment prior to judgment, attachment in aid of execution
of a judgment, execution of a judgment or from any other legal process or remedy
relating to its obligations under this Indenture or any other Indenture
Document, and to the extent that there may be attributed such an immunity
(whether or not claimed), such Indenture Obligor hereby irrevocably agrees not
to claim and hereby irrevocably waives such immunity to the fullest extent
permitted by the laws of the state of New York.
(f) This is an international debt transaction in which the
specification of United States dollars and payment in New York City is of the
essence, and the obligation of the Indenture Obligors under this Indenture and
the other Indenture Documents to make payment to (or for the account of) the
Trustee and the Holders in dollars shall not be discharged or satisfied by any
tender or recovery pursuant to any judgment expressed in or converted into any
other currency or in another place except to the extent that such tender or
recovery results in the effective receipt by the Trustee and the Holders in New
York City of the full amounts of dollars payable to the Trustee and the Holders
under this Indenture and the other Indenture Documents. If for the purpose of
obtaining judgment in any court it is necessary to convert a sum due hereunder
in dollars into another currency (in this Section 1005 called the "judgment
currency"), the rate of exchange that shall be applied shall be that at which in
accordance with normal banking procedures dollars could be purchased in New York
City with the judgment currency on the Business Day next preceding the day on
which such judgment is rendered. The obligation of each Indenture Obligor in
respect of any such sum due from it to the Trustee and the Holders under this
Indenture or any other Indenture Document shall, notwithstanding the rate of
exchange actually applied in rendering such judgment, be discharged only to the
extent that on the Business Day following receipt by the Trustee or the Holders,
as the case may be, of any sum adjudged to be due under this Indenture or any
other Indenture Document, as the case may be, in the judgment currency the
Trustee or the Holders, as the case may be, may in accordance with normal
banking procedures purchase and transfer dollars to New York City with the
amount of the judgment currency so adjudged to be due, and each Indenture
Obligor hereby, as a separate obligation and notwithstanding any such judgment,
agrees to indemnify the Trustee and the Holders against, and to pay the Trustee
and the Holders on demand, in dollars, the amount (if any) by which the sum
originally due to the Trustee or the Holders, as the case may be, in dollars
under this Indenture or any other Indenture Document exceeds the amount of the
dollars so purchased and transferred.
85
98
Section 1006. Limitation on Restricted Payments.
No Indenture Obligor will, nor will it cause, permit or suffer
any of its Obligor Subsidiaries to, (a) declare or pay any dividends or make any
other distributions (including through mergers, liquidations or other
transactions but excluding, for the avoidance of doubt, the issuance of New
Common Stock pursuant to the Plan of Reorganization) on any class of Capital
Stock of any Indenture Obligor or its Obligor Subsidiaries (other than dividends
or distributions payable or paid by a Wholly-Owned Subsidiary of PCI or of the
Company on account of its Capital Stock held by PCI or the Company or another
Subsidiary of PCI or the Company or payable or paid in shares of Capital Stock
of the Company other than preferred stock or redeemable stock), (b) make any
payment on account of, or set apart money for a sinking or other analogous fund
for, the purchase, redemption or other retirement of such Capital Stock, (c)
purchase, defease, redeem or otherwise retire any Subordinated Indebtedness
(other than with the proceeds of the issuance of Capital Stock of PCI which is
permitted to be issued pursuant to the terms of this Indenture or with the
proceeds of Subordinated Indebtedness which is permitted to be incurred pursuant
to the terms of this Indenture), or (d) make any Investment, either directly or
indirectly, whether in cash or property or in obligations of any Indenture
Obligor or its Obligor Subsidiaries (all of the foregoing being called
"Restricted Payments"). Notwithstanding the foregoing, any Obligor may make (i)
Permitted Issuances, (ii) Restricted Payments made pursuant to the Transaction
Documents, (iii) Permitted Investments, and (iv) regularly scheduled payments on
Subordinated Indebtedness which is permitted to be incurred pursuant to the
terms of this Indenture.
Section 1007. Limitations on Payment Restrictions Affecting
Subsidiaries.
No Indenture Obligor shall, nor shall it permit any of its
Obligor Subsidiaries to, directly or indirectly, create or otherwise cause or
suffer to exist or become effective any consensual encumbrance or restriction of
any kind on the ability of any such Obligor Subsidiary to (a) pay dividends or
make any other distribution to any Indenture Obligor or its Obligor Subsidiaries
on its Capital Stock, (b) pay any Indebtedness owed to any Indenture Obligor or
such other Subsidiary, (c) make loans or advances to any Indenture Obligor or
such other Subsidiary, or (d) transfer any of its property or assets to any
Indenture Obligor or such other Subsidiary, except:
(i) consensual encumbrances or restrictions contained in or
created pursuant to any Indenture Documents or the Transaction
Documents;
(ii) any restriction, with respect to a Subsidiary of any
Indenture Obligor that is not a Subsidiary of such Indenture Obligor on
the Closing Date, in existence at the time such entity becomes a
Subsidiary of such Indenture Obligor; provided that such encumbrance or
restriction is not created in anticipation of or in connection with
such entity becoming a Subsidiary of the Company and is not applicable
to any Person or the properties or assets of any Person other than a
Person that becomes a Subsidiary;
86
99
(iii) encumbrances or restrictions contained in any other
Indebtedness permitted to be incurred subsequent to the Closing Date
pursuant to the provisions of Section 1008 hereof, provided that any
such encumbrances or restrictions are not more restrictive taken
individually and as a whole (as determined in good faith by the chief
financial officer of the Company) than the most restrictive of those
provided for in the Indebtedness referred to in clause (i) of this
Section 1007;
(iv) any such encumbrance or restriction consisting of
customary nonassignment provisions in leases governing leasehold
interests to the extent such provisions restrict the transfer of the
lease;
(v) any restriction with respect to such 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 in compliance with the Indenture pending the closing of such
sale or disposition; or
(vi) any encumbrance or restriction required or mandated by
applicable law.
Section 1008. Limitations on Indebtedness.
No Indenture Obligor shall, nor shall it permit its Obligor
Subsidiaries to, directly or indirectly, create, incur, issue, assume, guaranty
or otherwise become liable with respect to, or become responsible for the
payment of, contingently or otherwise ("incur"), any Indebtedness.
Notwithstanding the foregoing limitations, the limitations of this Section 1008
shall not apply to the incurrence of the following Indebtedness:
(i) Indebtedness of the Company evidenced by the Securities,
Indebtedness of any Guarantor evidenced by the Guaranties with respect
thereto and Indebtedness of the Company and of the Guarantors, as
evidenced by and in respect of all other Transaction Documents;
(ii) Indebtedness evidenced by the New Tranche A Term Notes,
Indebtedness in respect of the Term Loans, the Term Loan Agreement and
all other obligations incurred thereunder;
(iii) Indebtedness of any Indenture Obligor or Obligor
Subsidiaries constituting Existing Indebtedness and any extension,
deferral, renewal, refinancing or refunding thereof, without increasing
the aggregate principal amount of such Indebtedness then outstanding
and covered thereby;
(iv) Indebtedness of PCI and the Company in respect of and in
accordance with the terms of, the Exit Facility; provided that,
notwithstanding the terms of the Exit Facility, the aggregate principal
amount of Indebtedness at any time outstanding under the Exit Facility
shall not exceed $50,000,000;
87
100
(v) Capitalized Lease Obligations of any Indenture Obligor or
its Obligor Subsidiaries, including Indebtedness in respect of
Capitalized Lease Obligations of any Indenture Obligor or its Obligor
Subsidiary secured by Liens that secure the payment of all or part of
the purchase price of assets or property acquired or constructed in the
ordinary course of business after the Closing Date; provided, however,
that the aggregate principal amount of such Capitalized Lease
Obligations, including such Indebtedness in respect of Capitalized
Lease Obligations of Indenture Obligors and all of their respective
Obligors Subsidiaries, does not exceed $10,000,000 in the aggregate
outstanding at any time;
(vi) Indebtedness, not secured by or subject to any Lien, of
PCI or the Company to any of their respective Subsidiaries or of any
such Subsidiary to PCI, the Company or another such Subsidiary (but
only so long as such Indebtedness is held by PCI, the Company or such
Subsidiary);
(vii) Indebtedness, not secured by or subject to any Lien,
under Hedging Obligations incurred in the ordinary course of PCI's or
the Company's business; provided, however, that in the case of foreign
currency exchange or similar agreements which relate to other
Indebtedness, such agreements do not increase the Indebtedness of any
Indenture Obligor or its Obligor Subsidiaries outstanding other than as
a result of fluctuations in foreign currency exchange rates, and in the
case of interest rate protection agreements, only if the notional
principal amount of such interest rate protection agreement does not
exceed the principal amount of the Indebtedness to which such interest
rate protection agreement relates;
(viii) [Indebtedness, not secured by or subject to any Lien,
in respect of performance, completion, guaranty, surety and similar
bonds, banker's acceptances, bills of exchange or letters of credit
provided or to be endorsed by PCI, the Company or any of their
respective Subsidiaries in the ordinary course of business]; and
(ix) Indebtedness, not secured by or subject to any Lien, in
respect of (i) any guaranty provided by PCI, the Company or any of
their respective Subsidiaries in respect of any other Indebtedness
permitted to be incurred hereunder and not otherwise referred to above;
provided, however, that if such Indebtedness guaranteed is subordinated
in right of payment to any other Indebtedness of the Indenture Obligor
thereof, then such guaranty shall be subordinated to Indebtedness of
such guarantor to the same extent, (ii) indemnities in favor of Persons
issuing title insurance policies, (iii) indemnifications in the
Transaction Documents and in any agreements contemplated thereunder or
thereby and (iv) indemnities in the Organizational Documents of PCI and
its Subsidiaries;
(x) Indebtedness, not secured by or subject to any Lien, of a
Person which becomes a Subsidiary of the Company incurred and
outstanding on or prior to the date on which such Person was acquired
as a Subsidiary by the Company;
88
101
provided that (i) on the date of such acquisition and after giving
effect thereto, the Consolidated Fixed Charge Coverage Ratio of the
Company for the most recently ended four full fiscal quarters for which
internal financial statements are available immediately preceding the
date of such incurrence would have been at least equal to 2.5:1.0
determined on a pro forma basis after giving effect, in each case, to
such acquisition which makes that Person a Subsidiary of the Company,
and (ii) immediately after giving effect to the acquisition of such
Person, no Default or Event of Default shall occur and be continuing;
(xi) Indebtedness subject to Liens permitted by Section 1012;
(xii) Indebtedness incurred in respect of New Other Secured
Notes and Claims;
(xiii) Subordinated Indebtedness, not secured by or subject to
any Lien, not to exceed $[*] in the aggregate at any one time
outstanding; provided that (i) on the date of incurrence of such
Subordinated Indebtedness and after giving effect thereto, the
Consolidated Fixed Charge Coverage Ratio of the Company for the most
recently ended four full fiscal quarters immediately preceding the date
of such incurrence would have been at least equal to 2.5:1.0 determined
on a pro forma basis, and (ii) immediately after giving effect to such
Indebtedness, no Default or Event of Default shall have occurred and be
continuing; and
(xiv) any refinancing, refunding, deferral, renewal or
extension (each, a "Refinancing") of any Indebtedness of any Obligor or
any Obligor Subsidiary permitted by subsections (ii), (iii), (iv), (x)
and (xii) (the "Refinancing Indebtedness"); provided, however, that (a)
such Refinancing Indebtedness does not exceed the aggregate principal
amount of the Indebtedness so refinanced, plus the amount of any
premium required to be paid in connection with such Refinancing in
accordance with the terms of such Indebtedness or the amount of any
premium reasonably determined by such Obligor as necessary to
accomplish such Refinancing, plus the amount of reasonable and
customary out-of-pocket fees and expenses payable in connection
therewith, (b) the Refinancing Indebtedness does not provide for any
mandatory redemption, amortization or sinking fund requirement in an
amount greater than or at a time prior to the amounts and times
specified in the Indebtedness being refinanced, refunded, deferred,
renewed or extended and (c) if the Indebtedness being refinanced,
refunded, deferred, renewed or extended is subordinated to the
Securities, the Refinancing Indebtedness incurred to refinance, refund,
defer, renew or extend such Indebtedness is subordinated in right of
payment to the Obligations on terms at least as favorable to the
Holders and the Lenders as those contained in the documentation
governing the Indebtedness being so refinanced, refunded, deferred,
renewed or extended;
provided, however, that no Indebtedness permitted to be incurred pursuant to
this Section 1008 shall contain any terms that are more restrictive on or to the
obligor of such
89
102
Indebtedness than those set forth in this Indenture, whether taken individually
or as a whole.
Section 1009. Asset Sales.
(a) No Indenture Obligor shall, nor shall it permit any of its
Obligor Subsidiaries to, make any Asset Sale (other than to another Indenture
Obligor or such other Subsidiary) unless (i) such Indenture Obligor or such
Subsidiary receives consideration at the time of such Asset Sale at least equal
to the Fair Market Value of the assets sold or otherwise disposed of, and at
least 85% of the consideration received by such Indenture Obligor or such
Subsidiary from such Asset Sale is in the form of cash (in Dollars) and no
portion thereof shall consist of inventory or accounts receivable or other
property that would become subject to a Lien held by any other creditor of such
Indenture Obligor or of any such Subsidiary other than the Lenders or the
Holders of the Securities; provided, however, that the amount of any cash
equivalent or note or other obligation received by such Indenture Obligor or
such Subsidiary from the transferee in any such transaction that is converted
within 45 days by such Indenture Obligor or such Subsidiary into cash shall be
deemed upon such conversion to be cash for purposes of this provision; (ii) to
the extent such Asset Sale involves Collateral, (x) the consent of the Holders
of a majority of the aggregate principal amount of the Securities then
Outstanding shall be obtained prior to the consummation of such sale and (y) PCI
or the Company shall cause the aggregate cash proceeds received by such
Indenture Obligor or such Subsidiary in respect of such Asset Sale which are
allocated to the Collateral, net of the items set forth in clauses (i) through
(iii) of the definition of Net Proceeds (the "Collateral Proceeds"), to be
deposited with the Collateral Agent in the Intercreditor Collateral Account as
and when received by such Indenture Obligor or any such Subsidiary; and (iii)
the Net Proceeds received by such Indenture Obligor or such Subsidiary from any
Asset Sale are applied in accordance with the following paragraphs.
(b) The Company shall apply 100% of the aggregate amount of
Net Proceeds from each and every Asset Sale, subject to the provisions, if
applicable, of the Common Security and Intercreditor Agreement, to the purchase
of Securities tendered to the Company for purchase, in each case then
Outstanding, on or prior to the tenth day following the date on which such Net
Proceeds are received by such Indenture Obligor or any such Subsidiary at a
price (the "Asset Sale Purchase Price") equal to 100% of the principal amount
thereof, plus accrued interest, and premium, if any, to the date of purchase
pursuant to an offer to purchase made by the Company (an "Asset Sale Offer")
with respect to the Securities, as the case may be.
(c) Until such time, if any, as the Net Proceeds from any
Asset Sale are applied in accordance with this covenant, such Net Proceeds shall
be segregated from the other assets of each Indenture Obligor and each of its
Obligor Subsidiaries and invested in cash or Eligible Investments.
(d) Any Asset Sale Offer shall be made substantially in
accordance with the procedures described under Section 1109 hereof. Each
Indenture Obligor shall cause a notice of any Asset Sale Offer to be mailed to
the Trustee and the Holders at their
90
103
registered addresses not less than 30 days nor more than 45 days before the
purchase date.
In the case of a sale of Collateral, the notice of an Asset
Sale Offer shall contain the following additional information: (i) a description
of the interests to be released; (ii) the Fair Market Value of the released
interests as of a date no later than 60 days before the date of such notice; and
(iii) certification that the purchase price received is not less than the Fair
Market Value of such released interest as of the date of such release. Such
notice to the Trustee shall be accompanied by an Officers' Certificate setting
forth a statement to the effect that (x) an Indenture Obligor has made an Asset
Sale, and/or (y) there has occurred a destruction or condemnation in respect of
Collateral resulting in Insurance Proceeds or Net Awards which are not required
to be applied to effect a Restoration of the affected Collateral under the
applicable Security Document. The notice shall also be accompanied by an Opinion
of Counsel as to the Asset Sale Offer and satisfactory evidence from a title
company that the Liens of the Collateral Agent or the remaining Collateral
continue unimpaired as perfected first priority liens.
Upon receiving notice of an Asset Sale Offer, Holders may
elect to tender their Securities in whole or in part in integral multiples of
$1,000 in exchange for cash. To the extent that Holders properly tender
Securities in an amount exceeding the Asset Sale Offer, Securities of tendering
Holders shall be repurchased on a pro rata basis (based on amounts tendered).
(e) In the event any Indenture Obligor is required to make an
Asset Sale Offer at a time when such Indenture Obligor is prohibited from making
such Offer, any other Indenture Obligor shall, on or prior to the date that such
Indenture Obligor is required to make an Asset Sale Offer, seek the consent of
the Holders and the Lenders to repurchase Securities pursuant to such Asset Sale
Offer; provided, however, that the failure to make or consummate the Asset Sale
Offer as provided herein shall constitute an Event of Default.
(f) The Company shall comply, to the extent applicable, with
the requirements of Rule 14e-1 under the Exchange Act, any other tender offer
rules under the Exchange Act and all other applicable U.S. Federal and state and
Canadian federal and provincial securities laws or regulations in connection
with any offer to repurchase and the repurchase of the Securities as described
above.
(g) No Indenture Obligor shall, nor shall it not permit any of
its Obligor Subsidiaries to, create or permit to exist or become effective any
consensual restriction, other than restrictions not more restrictive taken as a
whole (as determined in good faith by the Board of Directors of PCI) than those
in effect under the Exit Facility or any other Indebtedness permitted by Section
1008, that would materially impair the ability of any Indenture Obligor or any
of its Obligor Subsidiaries to comply with the provisions of this Section 1009.
(h) If at any time any non-cash consideration permitted by
this Section 1009 (other than any such consideration consisting of inventory,
accounts receivable and
91
104
certain related assets securing or permitted to secure the Exit Facility) is
received by any Indenture Obligor or any Obligor Subsidiary, as the case may be,
in connection with any Asset Sale of assets permitted by this Section 1009 which
includes Collateral, such non-cash consideration shall be made subject to the
Lien of the Security Documents in the manner contemplated in the Common Security
and Intercreditor Agreement to the extent of the purchase price allocated to the
Collateral. If and when any such non-cash consideration received from any Asset
Sale (whether or not relating to Collateral) is converted into or sold or
otherwise disposed of for cash, then such conversion or disposition shall be
deemed to constitute an Asset Sale hereunder and the Net Proceeds thereof shall
be applied in accordance with this Section 1009 and this Indenture.
(i) All Insurance Proceeds and all Net Awards required to be
delivered to the Collateral Agent pursuant to any Security Document shall
constitute Trust Moneys and shall be delivered, or caused to be delivered by
each Indenture Obligor or any of its Obligor Subsidiaries, as the case may be,
to the Collateral Agent contemporaneously with receipt by any Indenture Obligor
or any of its Obligor Subsidiaries and be deposited into the appropriate
Intercreditor Collateral Account and applied in accordance with the applicable
provisions of the Common Security and Intercreditor Agreement. Insurance
Proceeds and Net Awards so deposited that may be applied by each Indenture
Obligor or any of its Obligor Subsidiaries to effect a Restoration of the
affected Collateral under the applicable Security Document may be withdrawn from
the Intercreditor Collateral Account only in accordance with the applicable
provisions of the Common Security and Intercreditor Agreement. Insurance
Proceeds and Net Awards so deposited that are not applied to effect a
Restoration of the affected Collateral under the applicable Security Document
may only be withdrawn in accordance with applicable provisions of the Common
Security and Intercreditor Agreement.
Section 1010. Limitation on Sale and Leaseback Transactions.
No Indenture Obligor shall, nor shall it permit any of its
Obligor Subsidiaries to, enter into any Sale and Leaseback Transaction unless
(a) at the time of the occurrence of such transaction and after giving effect to
such transaction and (x) in the case of a Sale and Leaseback Transaction which
is a Capitalized Lease Obligation, giving effect to the Indebtedness in respect
thereof, the Indenture Obligor and any of its Obligor Subsidiaries entering into
such transaction will remain in compliance with the clause (d) of Section 1008
and (y) in the case of any other Sale and Leaseback Transaction, giving effect
to the Attributable Indebtedness in respect thereof, the aggregate Attributed
Indebtedness of the Indenture Obligors and their Obligor Subsidiaries, taken as
a whole, does not exceed $1,000,000, (b) at the time of the occurrence of such
transaction, such Indenture Obligor or its Obligor Subsidiaries could incur
Indebtedness secured by a Lien on property in a principal amount equal to or
exceeding the Attributable Indebtedness in respect of such Sale and Leaseback
Transaction pursuant to Section 1012 hereof, and (c) the transfer of assets in
such Sale and Leaseback Transaction is permitted by, and the Company shall apply
the proceeds of such transaction in compliance with, Section 1009 hereof.
92
105
Section 1011. Limitation on Transactions With Affiliates.
(a) No Indenture Obligor shall, nor shall it permit any of its
Obligor Subsidiaries to, directly or indirectly, enter into any transaction with
or series of related transactions with or for the benefit of any of their
respective Affiliates, except on an arm's-length basis and if (x)(i) in the case
of any such transaction other than with any Indenture Obligor or Obligor
Subsidiary in which the aggregate rental value, remuneration or other
consideration (including the value of a loan), together with the aggregate
rental value, remuneration or other consideration (including the value of a
loan) of all such other transactions consummated in the year during which such
transaction is proposed to be consummated, is less than or equal to $750,000,
PCI and the Company shall deliver Board Resolutions of their respective Board of
Directors to the Trustee evidencing that the Board of Directors and the
Independent Directors of each of PCI and the Company that are disinterested
each, acting together in the first instance and separately in second, have (by a
majority vote) determined in good faith that the aggregate rental value,
remuneration or other consideration (including the value of any loan) inuring to
the benefit of such Affiliate from any such transaction is not greater than that
which would be charged to or extended by such Indenture Obligor or any of its
Obligor Subsidiaries, as the case may be, on an arm's-length basis for similar
properties, assets, rights, goods or services by or to a Person not affiliated
with any Indenture Obligor or any of its Obligor Subsidiaries, as the case may
be, and (ii) in the case of any such transaction in which the aggregate rental
value, remuneration or other consideration (including the value of any loan),
together with the aggregate rental value, remuneration or other consideration
(including the value of any loan) of all such other transactions consummated in
the year during which such transactions are proposed to be consummated, exceeds
$750,000, PCI and the Company shall deliver to the Trustee Board Resolutions as
described in clause (a)(x)(i) of this Section 1011 and an opinion of a
nationally recognized investment banking firm, not affiliated with any Indenture
Obligor or any of its Obligor Subsidiaries or the Affiliate which is party to
such transaction, to the effect that the aggregate rental price, remuneration or
other consideration (including the value of a loan) inuring to the benefit of
such Affiliate from any such transaction is not greater than that which would be
charged to or extended by such Indenture Obligor or any of its Obligor
Subsidiaries, as the case may be, on an arm's-length basis for similar
properties, assets, rights, goods or services by or to a Person not affiliated
with such Indenture Obligor or any of its Obligor Subsidiaries, as the case may
be, and (y) all such transactions referred to in clauses (a)(x)(i) and
(a)(x)(ii) of this Section 1011 are entered into in good faith.
(b) The provisions of the preceding paragraph do not prohibit
(i) the execution and delivery of the Indenture Documents and the Transaction
Documents and the consummation of the transactions contemplated herein or
therein or the implementation of the Plan of Reorganization, (ii) any permitted
payment on, or with respect to, Capital Stock of PCI Held by creditors of any
Indenture Obligor, (iii) any issuance of securities, or other payments, awards
or grants in cash, securities or otherwise pursuant to, or the funding of,
employment arrangements, stock options and stock ownership plans approved by the
Board of Directors of PCI and the Company pursuant and consistent with the MEIP,
(iv) loans or advances to employees in the ordinary course
93
106
of business consistent with past practices, not to exceed $500,000 in the
aggregate principal amount outstanding at any time, or (v) the payment of fees
and compensation paid to, and indemnity provided on behalf of, officers,
directors, employees or consultants of PCI, the Company or any of their
respective Subsidiaries, as determined by the Board of Directors of PCI, the
Company or any of their respective Subsidiaries in good faith.
Section 1012. Limitation on Liens.
No Indenture Obligor shall, nor shall it permit any of its
Obligor Subsidiaries to, create, incur, assume or suffer to exist any Lien upon
any of their respective assets or properties now owned or acquired after the
Closing Date, or any income or profits therefrom, excluding, however, from the
operation of the foregoing any of the following:
(a) Liens (i) securing obligations owed in respect of Allowed
Secured Tax Claims and obligation owed in respect of Allowed Other Secured
Claims reinstated in accordance with the Bankruptcy Code and pursuant to the
Plan of Reorganization, (ii) securing the Indenture Obligations, (iii) on
accounts receivable, inventory and related general intangibles securing
obligations under the Exit Facility, (iv) securing the obligations under the
Transaction Documents, and (v) securing obligations under New Other Secured
Notes (to the extent the corresponding Allowed Other Secured Claims shall not
have been reinstated) and any other Lien granted by the Obligors as permitted by
the Plan of Reorganization;
(b) Permitted Liens;
(c) Liens on assets or property of the Company, or on assets
or property of Subsidiaries of the Company, to secure the payment of all or a
part of the purchase price of assets or property acquired or constructed in the
ordinary course of business after the Closing Date; provided, however, that (i)
the aggregate principal amount of Indebtedness secured by such Liens does not
exceed the original cost or purchase price of the assets or property so acquired
(including the reasonable and customary costs of associated with the acquisition
of such acquired assets) or constructed, (ii) the Indebtedness secured by such
Liens is otherwise permitted to be incurred hereunder, (iii) such Liens do not
encumber any other assets or property of any Indenture Obligor or any of its
Obligor Subsidiaries, and (iv) the Indebtedness secured by such Liens may not be
created more than 100 days after the later of the acquisition, completion of
construction, repair, improvement, addition or commencement of full operation of
the property subject to such Liens;
(d) Liens on the assets or property permitted to be acquired
hereby by the Company or any of its Subsidiaries after the Closing Date;
provided, however, that (i) such Liens existed on the date such asset or
property was acquired and were not incurred as a result of or in anticipation of
such acquisition and (ii) such Liens shall not extend to or cover any property
or assets of any Indenture Obligor or any of its Obligor Subsidiaries other than
the property or assets so acquired;
94
107
(e) Liens securing Indebtedness which is incurred to refinance
Indebtedness which has been secured by a Lien permitted hereunder and which is
permitted to be refinanced hereunder; provided, however, that such Liens do not
extend to or cover any assets or property of any Obligor or any Obligor
Subsidiaries not securing the Indebtedness so refinanced;
(f) Liens on assets or property of any Obligor or any Obligor
Subsidiary that is subject (and only subject) to a Sale and Leaseback
Transaction, provided, however, that the aggregate principal amount of
Attributable Indebtedness in respect of all Sale and Leaseback Transactions then
Outstanding shall not at the time such a Lien is incurred exceed $1,000,000;
(g) Liens arising out of conditional sale, title retention,
consignment or similar arrangements for the sale of goods entered into by the
Company or any of its Subsidiaries in the ordinary course of business in
accordance with past practices of the Company or any of its Subsidiaries; and
(h) Liens arising out of barter transactions or arrangements
for the sale or purchase of goods or services entered into by the Company or any
of its Subsidiaries in the ordinary course of business in accordance with the
past practices of the Company or any of its Subsidiaries.
Section 1013. Corporate Existence; Corporate Separateness.
Subject to Article Eight, each Indenture Obligor shall do or
cause to be done all things necessary to preserve and keep in full force and
effect (a) its corporate existence and the corporate existence of each of its
Obligor Subsidiaries, in each case in accordance with their respective
Organizational Documents (as the same may, subject to Section 1024, be amended
from time to time) and (b) its (and its Subsidiaries) rights (charter and
statutory), licenses and franchises necessary or desirable in the normal course
of its business; provided, however, that no Indenture Obligor shall be required
to preserve such corporate existence or such licenses, permits or approvals if
the failure to preserve the same could not reasonably be expected, individually
or in the aggregate, to have a Material Adverse Effect.
Each Indenture Obligor will, and will cause each of its
Obligor Subsidiaries to, satisfy customary corporate formalities, including the
holding of regular Board of Directors' and shareholders' meetings and the
maintenance of corporate offices and records. No Indenture Obligor nor any of
its respective Subsidiaries shall take any action, or conduct their respective
affairs in a manner, which is likely to result in the corporate existence of any
such Subsidiary being ignored by any court of competent jurisdiction.
Section 1014. Change of Control.
(a) Each Indenture Obligor will, and will cause each of its
Obligor Subsidiaries to, give reasonable notice to the Trustee and the Holders
of any proposed
95
108
Change of Control prior to consummating, or permitting the consummation of, such
Change of Control.
(b) In the event of a Change of Control (the date of such
occurrence being the "Change of Control Date"), each Indenture Obligor shall
notify the Holders in writing of such occurrence and shall make an irrevocable
offer (the "Change of Control Offer") to purchase, on a Business Day not later
than 60 days following the Change of Control Date (the "Change of Control
Payment Date"), all Securities then Outstanding at a purchase price (the "Change
of Control Purchase Price") equal to 100% of the principal amount thereof plus
accrued and unpaid interest to the Change of Control Payment Date.
(c) Notice of a Change of Control Offer shall be mailed by the
Company to the Holders at their registered addresses not less than 30 days nor
more than 45 days before the Change of Control Payment Date. The Change of
Control Offer shall remain open for at least 20 Business Days and until 5:00
p.m., New York City time, on the Business Day next preceding the Change of
Control Payment Date. Substantially simultaneously with mailing of the notice,
the Company shall cause a copy of such notice to be published in a newspaper of
general circulation in the Borough of Manhattan, The City of New York.
(d) The notice, which governs the terms of the Change of
Control Offer, shall state:
(i) that the Change of Control Offer is being made pursuant to
this Section 1014 and that all Securities (or portions thereof)
tendered will be accepted for payment;
(ii) the Change of Control Purchase Price and the Change of
Control Payment Date;
(iii) that any Securities not surrendered or accepted for
payment shall continue to accrue interest, and premium, if any;
(iv) that, unless the Company defaults in the payment of the
Change of Control Purchase Price, any Securities accepted for payment
pursuant to the Change of Control Offer shall cease to accrue interest,
or premium, if any, after the Change of Control Payment Date;
(v) that any Holder electing to have a Security purchased (in
whole or in part) pursuant to a Change of Control Offer shall be
required to surrender the Security, with the form entitled "Option of
Holder to Elect Purchase" on the reverse of the Security completed, to
the Paying Agent at the address specified in the notice (or otherwise
make effective delivery of the Security pursuant to book-entry
procedures and the related rules of the applicable Depositary) at least
five Business Days before the Change of Control Payment Date;
(vi) that any Holder shall be entitled to withdraw its
election if the Paying Agent receives, not later than three (3)
Business Days prior to the Change
96
109
of Control Payment Date, a telegram, telex, facsimile transmission or
letter setting forth the name of the Holder, the principal amount of
the Security the Holder delivered for purchase, the certificate number
of the Security and a statement that such Xxxxxx is withdrawing his or
her election to have such Security purchased;
(vii) that Holders whose Securities are purchased only in part
shall be issued Securities representing the unpurchased portion of the
Securities surrendered, which unpurchased portion must be equal to
$1,000 principal amount or an integral multiple thereof;
(viii) the instructions that Holders must follow in order to
tender their Securities; and
(ix) the circumstances and relevant facts regarding such
Change of Control (including but not limited to information with
respect to pro forma financial information after giving effect to such
Change of Control and information regarding the Persons acquiring
control).
(e) On the Change of Control Payment Date, the Company shall:
(i) accept for payment the Securities, or portions thereof,
surrendered and properly tendered and not withdrawn, pursuant to the
Change of Control Offer;
(ii) deposit with the Paying Agent money sufficient to pay the
Change of Control Purchase Price of all the Securities, or portions
thereof, so accepted; and
(iii) deliver to the Trustee the Securities so accepted
together with an Officers' Certificate stating that such Securities
have been accepted for payment by the Company.
The Paying Agent shall promptly mail or deliver to Holders of Securities so
accepted payment in an amount equal to the Change of Control Purchase Price and
the Trustee shall promptly authenticate and mail to such Holders a new Security
equal in principal amount to the unpurchased portion of the Security
surrendered.
(f) Subject to applicable escheat laws, as provided in the
Securities, the Trustee and the Paying Agent shall, upon the Company's written
request, return to the Company any cash that remains unclaimed, together with
interest or dividends, if any, thereon, held by them for the payment of the
Change of Control Purchase Price; provided, however, that (x) to the extent that
the aggregate amount of cash deposited by the Company pursuant to clause (ii) of
paragraph (e) above exceeds the aggregate Change of Control Purchase Price of
the Securities or portions thereof to be purchased, then the Trustee shall hold
such excess for the Company and (y) unless otherwise directed by the Company in
writing, promptly after the Business Day following the Change of Control Payment
Date the Trustee shall return any such excess to the Company, together with
interest, if any, thereon.
97
110
(g) The Company shall comply, to the extent applicable, with
the requirements of Rule 14e-1 under the Exchange Act, any other tender offer
rules under the Exchange Act and all other applicable U.S. Federal and state and
Canadian federal and provincial securities laws or regulations in connection
with the offer to repurchase and the repurchase of the Securities as described
above.
(h) No Indenture Obligor shall, nor shall it permit any of its
Subsidiaries to, create or permit to exist or become effective any restriction
(other than restrictions not more restrictive taken as a whole (as determined in
good faith by the Board of Directors of such Indenture Obligor) than those in
effect under Indebtedness under the Term Loan Agreement) that would impair the
ability of such Indenture Obligor to make a Change of Control Offer to purchase
the Securities or, if such Change of Control Offer is made, to pay for the
Securities tendered for purchase; provided, however, that the failure to make or
consummate the Change of Control Offer shall constitute an Event of Default.
Section 1015. Maintenance of Properties.
Each Indenture Obligor shall, and shall cause each of its
Obligor Subsidiaries to, maintain its properties and assets in normal working
order and condition as of the Closing Date (reasonable wear and tear excepted)
and make all repairs, renewals, replacements, additions, betterments and
improvements thereto, as shall be reasonably necessary for the proper conduct of
the business of Indenture Obligors and the Obligor Subsidiaries taken as a
whole[; provided that nothing herein shall prevent any Indenture Obligor or any
Obligor Subsidiary from discontinuing any maintenance of any such properties if
such discontinuance could not be reasonably be expected individually or in the
aggregate, to have a Material Adverse Effect].
Section 1016. Maintenance of Insurance.
Each Indenture Obligor shall, and shall cause each of its
Obligor Subsidiaries to, maintain property, liability, casualty, directors' and
officers (D&O) and other insurance (subject to the customary deductibles and
retentions) with reputable insurance companies in such amounts and against such
risks as is customarily carried by responsible companies engaged in similar
businesses and owning similar assets in the general areas in which the Indenture
Obligors and its Obligor Subsidiaries operate (which may include self-insurance
in comparable form to that maintained by such responsible companies) and each
Indenture Obligor shall, and shall cause each of its respective Subsidiaries to,
have the Trustee, for its benefit and for the benefit of Holders, named as loss
payee or additional insured, as the case may be, by endorsement to the policies
for such insurance.
Section 1017. Stock Pledge Agreements.
Each Indenture Obligor and each of its Obligor Subsidiary in
existence as of the Closing Date (except for any such Obligor Subsidiary which
has no Subsidiaries) shall pledge the Capital Stock of its Subsidiaries owned by
it to secure the Indenture
98
111
Obligations pro rata (and as further provided for in the Stock Pledge Agreement
and the Common Security and Intercreditor Agreement) and each Indenture Obligor
will, and will cause each existing Subsidiary to, pledge such Capital Stock of
any Subsidiary of any Indenture Obligor or such existing Obligor Subsidiary
formed after the Closing Date to secure the Indenture Obligations and will
execute and deliver to the Trustee and the Collateral Agent one or more stock
pledge agreements substantially in the form of the Stock Pledge Agreement
providing for the pledge to the Collateral Agent for the benefit of (x) the
Administrative Agent (for itself and the Lenders), and (y) the Trustee (for
itself and the Holders of the Securities) of all the Capital Stock of such newly
formed Subsidiary held by such Indenture Obligor or such existing Obligor
Subsidiary, as the case maybe, and deliver to the Collateral Agent stock
certificates evidencing such Capital Stock (together with undated stock powers
executed in blank), which Capital Stock and stock powers will become
"Collateral" for purposes of the Security Documents. This Section 1017 shall
apply mutatis mutandis to any such newly formed Subsidiary.
Section 1018. Money for Security Payments to be Held in Trust.
If the Company shall at any time act as its own Paying Agent,
it shall, on or before each due date of the principal of, premium, if any, or
interest on any of the Securities, segregate and hold in trust for the benefit
of the Holders entitled thereto a sum sufficient to pay the principal, premium,
if any, or interest so becoming due until such sums shall be paid to such
Persons or otherwise disposed of as herein provided, and shall promptly notify
the Trustee of its action or failure so to act.
If the Company is not acting as Paying Agent, the Company
shall, before 10:00 a.m. New York City time on each due date of the principal
of, premium, if any, or interest, on any Securities, deposit with a Paying Agent
a sum in same day funds sufficient to pay the principal, premium, if any, or
interest so becoming due, such sum to be held in trust for the benefit of the
Persons entitled to such principal, premium, or interest and (unless such Paying
Agent is the Trustee) the Company shall promptly notify the Trustee of such
action or any failure so to act.
If the Company is not acting as Paying Agent, the Company
shall cause each Paying Agent other than the Trustee to execute and deliver to
the Trustee an instrument in which such Paying Agent shall agree with the
Trustee, subject to the provisions of this Section, that such Paying Agent
shall:
(a) hold all sums held by it for the payment of the principal
of, premium, if any, or interest on Securities in trust for the benefit of the
Persons entitled thereto until such sums shall be paid to such Persons or
otherwise disposed of as herein provided;
(b) give the Trustee notice of any Default by the Company or
any Guarantor (or any other Indenture Obligor upon the Securities) in the making
of any payment of principal, premium, if any, or interest;
99
112
(c) at any time during the continuance of any such Default,
upon the written request of the Trustee, forthwith pay to the Trustee all sums
so held in trust by such Paying Agent; and
(d) acknowledge, accept and agree to comply in all aspects
with the provisions of this Indenture relating to the duties, rights and
disabilities of such Paying Agent.
The Company may at any time, for the purpose of obtaining the
satisfaction and discharge of this Indenture or for any other purpose, pay, or
by Company Order direct any Paying Agent to pay, to the Trustee all sums held in
trust by the Company or such Paying Agent, such sums to be held by the Trustee
upon the same trusts as those upon which such sums were held by the Company or
such Paying Agent; and, upon such payment by any Paying Agent to the Trustee,
such Paying Agent shall be released from all further liability with respect to
such money.
Any money deposited with the Trustee or any Paying Agent, or
then held by the Company, in trust for the payment of the principal of, premium,
if any, or interest on any Security and remaining unclaimed for two years after
such principal, premium, if any, or interest has become due and payable shall
promptly be paid to the Company on Company Request, or (if then held by the
Company) shall be discharged from such trust. The Holder of such Security shall
thereafter, as an unsecured general creditor, look only to the Company for
payment thereof and all liability of the Trustee or such Paying Agent with
respect to such trust money, and all liability of the Company as trustee
thereof, shall thereupon cease; provided, however, that the Trustee or such
Paying Agent, before being required to make any such repayment, may at the
expense of the Company cause to be published once, in the New York Times and The
Wall Street Journal (national edition), notice that such money remains unclaimed
and that, after a date specified therein, which shall not be less than thirty
(30) days from the date of such notification or publication, any unclaimed
balance of such money then remaining shall promptly be repaid to the Company.
Section 1019. [Redemption of Securities with proceeds of
Qualified Equity Offering.
PCI may, but shall not be obliged to, make and consummate one
or more Qualified Equity Offering. If the proceeds of a Qualified Equity
Offerings, or of one or more such Qualified Equity Offerings, are greater than
$35,000,000 (after giving effect to any mandatory application of proceeds from
such Qualified Equity Offering to repay the New Tranche A Term Notes in
accordance with the Term Loan Agreement) and no Indebtedness in respect of the
New Tranche A Term Notes is outstanding (including as a result of the proceeds
of such Qualified Equity Offering being applied to repay the New Tranche A Notes
in accordance with the Term Loan Agreement), then PCI and the Company shall
cause the proceeds of any consummated Qualified Equity Offering that are in
excess of $35,000,000 to be applied to redeem Outstanding Securities(and if such
proceeds are not sufficient to redeem all of the Securities then Outstanding,
then to redeem the then Outstanding Securities on a pro rata basis) and the
provisions of
100
113
Sections 1101 through to and including Section 1108 shall apply in
respect of such redemption as if the Company shall have exercised its right to
redeem Outstanding Securities pursuant to Article Eleven.
Section 1020. Limitation on Ownership of Wholly-Owned
Subsidiary Stock.
No Indenture Obligor and no Obligor Subsidiary (a) shall, nor
shall it permit any of its Wholly-Owned Subsidiaries to, transfer, convey, sell
or otherwise dispose of any Capital Stock of such Wholly-Owned Subsidiary to any
Person (other than such Indenture Obligor, any of its Obligor Subsidiaries or
another such Wholly-Owned Subsidiary), unless (i) such transfer, conveyance,
sale or other disposition is of all the Capital Stock of such Wholly-Owned
Subsidiary and (ii) the Net Proceeds from such transfer, conveyance, sale, lease
or other disposition are applied in accordance with Section 1009 hereof, and (b)
shall permit any Wholly-Owned Subsidiary of any Indenture Obligor or any of its
Obligor Subsidiaries to issue any of its Capital Stock (other than, if
necessary, Capital Stock constituting directors' qualifying shares or interests
held by directors or shares or interests required to be held by foreign
nationals, to the extent mandated by applicable law) to any Person other than to
the any Indenture Obligor or a Wholly-Owned Subsidiary of any Indenture Obligor.
Section 1021. Impairment of Security Interest.
No Indenture Obligor shall, nor shall it cause or permit any
of its Obligor Subsidiaries to, take or omit to take any action which action or
omission might or would have the result of affecting or impairing the Liens and
security interest in favor of the Collateral Agent for the benefit of the
Holders with respect to the Collateral and no Indenture Obligor shall grant, nor
shall it cause or permit any of its Obligor Subsidiaries to grant, to any
Person, or suffer any Person to have any interest whatsoever in the Collateral,
in each case other than as otherwise permitted by this Indenture, the Term Loan
Agreement, the New Tranche A Term Notes, the Securities and the Security
Documents.
No Indenture Obligor shall, nor shall it cause or permit any
of its Obligor Subsidiaries to, enter into any agreement or instrument that by
its terms requires that the proceeds received from any sale of Collateral be
applied to repay, redeem, defease or otherwise acquire or retire any
Indebtedness of any Person, other than pursuant to this Indenture, the Term Loan
Agreement, the New Tranche A Term Notes, the Securities and the Security
Documents or any instrument governing Indebtedness permitted to be secured by a
Lien on the Collateral pursuant to Section 1012 hereof.
Section 1022. Amendment to Certain Agreements.
No Indenture Obligor shall, nor shall it permit any of its
Obligor Subsidiaries to, amend, modify or supplement, or consent to any
amendment, modification or supplement of, the Exit Facility, the New Other Notes
And Claims and the Transaction Documents [, except, in each case to the extent
such amendment,
101
114
modification or supplement could not reasonably be expected to have a Material
Adverse Effect].
Section 1023. Plan of Reorganization.
Each Indenture Obligor shall, and shall cause each of its
Obligor Subsidiaries to, take all such steps and actions and to consummate all
transactions necessary to implement the Plan of Reorganization to the extent
such steps, actions and transactions are contemplated in the Plan of
Reorganization as occurring after the Closing Date and to the extent the Plan of
Reorganization contemplates that any Indenture Obligor or any Obligor Subsidiary
shall take such steps and actions or consummate such transactions.
Section 1024. Nature of Business, Organizational Documents and
Capital Structure and New Subsidiaries; Books and Records.
(a) No Indenture Obligor shall, nor shall it cause or permit
any of its Obligor Subsidiaries to, (i) engage directly or indirectly in any
business activity other than in a Related Business, (ii) amend or modify any
material provision of its Organizational Documents except to the extent such
amendment could not reasonably be expected to have a Material Adverse Effect, or
(iii) change its legal or capital structure or form any Subsidiary of any
Affiliate other than as otherwise permitted under Article Eight.
(b) Each Indenture Obligor shall, and shall cause each of its
Obligor Subsidiaries to, keep books and records which accurately reflect in all
material respects all of its business affairs and transactions and permit the
Trustee and each Holder or any of their respective representatives at all times
during normal business hours, or such other reasonable times, and upon
reasonable notice (unless a Default or Event of Default has occurred or the
Trustee reasonably suspects that a Default or Event of Default has occurred, in
which case no prior notice shall be required), to visit all of its or their
offices, to inspect the properties of each Indenture Obligor and each of its
Obligor Subsidiaries, to inspect the Collateral, to discuss its financial
matters, its business, its assets, its liabilities and its prospects with its
officers and with its independent public accountants (and each Indenture Obligor
and each of its Obligor Subsidiaries hereby authorizes such independent public
accountants to discuss all such matters with the Trustee and each Holder or such
representatives whether or not any representative of any Indenture Obligor or
its Obligor Subsidiaries is present) and to examine, and photocopy extracts
from, any of its books or other corporate records including management letters
prepared by independent accountants, in each case for the purposes of monitoring
each Indenture Obligor's compliance with its obligations under the Indenture
Documents to which it is a party.
102
115
Section 1025. Compliance with Laws and Environmental and
Safety and Health Matters.
Each Indenture Obligor shall comply, and shall cause each of its Obligor
Subsidiaries to (a) comply, in all material respects with all applicable laws,
statutes, rules, regulations, by-laws, policies, guidelines, directives,
decrees, opinions or agency requirements or orders (including, without
limitation, Environmental Laws and Safety and Health Laws), (b) notify the
Trustee promptly after becoming aware of any Environmental Claim, or any fact or
circumstance that could reasonably be expected to result in an Environmental
Claim or a violation of, or liability under, any laws, statutes, rules,
regulations, by-laws, policies, guidelines, directives, decrees, opinions or
agency requirements or orders, including Environmental Laws and Safety and
Health Laws, that could reasonably be expected, individually or in the
aggregate, to have a Material Adverse Effect, and (c) promptly forward to the
Trustee a copy of any material order, notice, permit, application, or any other
communication or report received in connection with any such matters (whether
relating to matters referred to generally in clause (a) or with particularity in
clause (b) of this Section 1025).
Section 1026. [Intentionally omitted]
Section 1027. Authorizations; Performance of Obligations.
Each Indenture Obligor shall, and shall cause each of its
Obligor Subsidiaries to, make and keep in full force and effect all
authorizations from and registrations with governmental authorities and agencies
required for the validity or enforceability of the Indenture Documents. Each
Indenture Obligor shall perform, and cause each of its Obligor Subsidiaries to
perform, its obligations under any material agreement or instrument to which it
is a party.
Section 1028. Further Assurances.
(a) Promptly upon the request of the Trustee or any Holder
through the Trustee, each Indenture Obligor shall correct, and shall cause each
of its Obligor Subsidiaries promptly to correct, any material defect or error
that may be discovered in any Indenture Document or in the execution,
acknowledgment, filing or recordation thereof, and (b) promptly upon the request
by the Trustee or Collateral Agent or any Holder through the Trustee or
Collateral Agent, each Indenture Obligor shall, and shall cause its Obligor
Subsidiaries to, execute, acknowledge, deliver, record, re-record, file,
re-file, register and re-register any and all such further acts, deeds,
conveyances, pledge agreements, mortgages, deeds of trusts, trust deeds,
assignments, financing statements and continuations thereof, termination
statements, notices of assignment, transfers, certificates, assurances and other
instruments as the Trustee or Collateral Agent or any Holder through the Trustee
or Collateral Agent, may reasonably require from time to time in order to (i)
carry out more effectively the purposes of the Indenture Documents, (ii) to the
fullest extent permitted by applicable law, subject any Indenture Obligor's or
any of its Obligor Subsidiaries' properties, assets, rights or interests to the
Liens now or hereafter intended to be covered by any of the Security Documents,
(iii) perfect and
103
116
maintain the validity, effectiveness and priority of any of the Security
Documents and any of the Liens intended to be created thereunder, and (iv)
assure, convey, grant, assign, transfer, preserve, protect and confirm more
effectively unto the Holders the rights granted or now or hereafter intended to
be granted to the Holders under any Indenture Document or under any other
instrument executed in connection with any Indenture Document to which any
Indenture Obligor or any of its Obligor Subsidiaries is or is to be a party.
Section 1029. Fiscal Year.
Each of PCI and the Company will not change its Fiscal Year.
Section 1030. Additional Amounts.
(a) Any and all payments by the Company to or for the account
of any Holder hereunder, other than an Excluded Holder, shall be made free and
clear of, and without deduction, for any and all present or future taxes,
duties, levies, imposts, deductions, charges or withholdings and all liabilities
with respect thereto, excluding, in the case of each Holder, taxes imposed on
its net income or franchise taxes imposed in lieu of a tax on net income by the
jurisdiction under the laws of which a Holder is organized or maintained or any
political subdivision thereof (all such nonexcluded taxes, duties, levies,
imposts, deductions, charges, withholdings, and liabilities being hereinafter
referred to as "Taxes"). If the Company is required to withhold or deduct any
amount for or on account of Taxes from any payment made under or with respect to
the Securities, the Company shall pay such additional amounts ("Additional
Amounts") as may be necessary so that the net amount received by each Holder
(including Additional Amounts) after such withholding or deduction will not be
less than the amount the Holder would have received if such Taxes had not been
withheld or deducted; provided that no Additional Amounts shall be payable with
respect to a payment made to a Holder to the extent solely attributable to (i)
such Holder not being treated as dealing at arm's length with the Company within
the meaning of the Income Tax Act (Canada) at the time of making such payment,
or (ii) such Holder's being connected with Canada or any province or territory
thereof otherwise than solely by reason of the Holder's activity in connection
with purchasing the Securities, by the mere holding of Securities or by reason
of the receipt of payments thereunder (collectively, Persons described in
clauses (i) and (ii) of this Section 1030(a) are "Excluded Holders"). The
Company will also (1) make such withholding or deduction, and (2) remit the full
amount deducted or withheld to the relevant authority in accordance with
applicable law.
(b) The Company shall furnish to the Holders, within 30
calendar days after the date the payment of any Taxes is due pursuant to the
applicable law, certified copies of tax receipts evidencing such payment by the
Company. The Company shall upon written request of each Holder (other than an
Excluded Holder), reimburse each such Holder for the amount of (i) any Taxes so
levied or imposed and paid by such Xxxxxx as a result of payments made under or
with respect to the Securities, and (ii) any Taxes so levied or imposed with
respect to any reimbursement under foregoing clause (i) so that the net amount
received by such Holder (net of payments made under or with
104
117
respect to the Securities) after such reimbursement will not be less than the
net amount the Holder would have received if Taxes on such reimbursement had not
been imposed; provided, however, no reimbursement shall be made in respect of
Taxes for which no Additional Amounts would be payable by reason of clause (i)
or (ii) of the second preceding sentence.
(c) In addition, the Company agrees to pay any and all present
or future stamp or documentary taxes and any other excise or property taxes or
charges or similar levies which arise from any payment made under this
Indenture.
(d) At least 30 calendar days prior to each date on which any
payment under or with respect to the Securities is due and payable, if the
Company will be obligated to pay Additional Amounts with respect to such
payment, the Company will deliver to the Trustee an Officers' Certificate
stating the fact that such Additional Amounts will be payable and the amounts so
payable and will set forth such other information necessary to enable the
Trustee to pay such Additional Amounts to Holders on the payment date. Whenever
in this Indenture there is mentioned, in any context, the payment of principal,
premium, if any, or interest, or any other amount payable under or with respect
to any Securities, such mention shall be deemed to include mention of the
payment of Additional Amounts to the extent that, in such context, Additional
Amounts are, were or would be payable in respect thereof. The Holders, by
acceptance of a Note, and the Company agree that the payment of any Additional
Amounts by the Company shall be treated as payments of interest.
(e) If the Company fails to pay any Taxes when due to the
appropriate taxing authority or fails to remit the required receipts or other
required documentary evidence, the Company shall indemnify the Holders for any
incremental Taxes, interest or penalties that may become payable by any Holder,
other than an excluded Holder, as a result of any such failure.
Section 1031. Pension Transfer Agreement.
The Company shall fulfill all of its obligations under the
Pension Transfer Agreement date October 31, 1997, between the Company and ICI
Canada, in accordance with the terms thereof, that relate to the establishment,
funding, maintenance and operation of each Canadian Pension Plan to be
established therewith.
ARTICLE ELEVEN
REDEMPTION OF SECURITIES
Section 1101. Rights of Redemption.
The Company shall have the right at any time and from time to
time to redeem the Outstanding Securities, in whole or in part, on not less than
thirty (30) nor more than sixty (60) days' prior notice, mailed by first-class
mail to the Holders' registered addresses, in cash, in amounts of $1,000 or an
integral multiple of $1,000 at
105
118
the following Redemption Prices (expressed as percentages of the principal
amount), if redeemed in the 12-month period commencing [*], in the year
indicated below:
Year Redemption Price
---- ----------------
2001 105.00%
2002 105.00%
2003 105.00%
2004 105.00%
2005 105.00%
2006 102.50%
2007 102.50%
2008 100.00%
in each case together with accrued and unpaid interest, to the Redemption Date
(subject to the right of Holders of record on relevant record dates to receive
interest, due on an Interest Payment Date). If less than all of the Securities
are to be redeemed, the Trustee shall select the Securities to be redeemed pro
rata, by lot or by any other method the Trustee shall deem fair and appropriate.
Securities may be redeemed or repurchased as set forth in
Sections 1009, 1014 and 1109 hereof. Any redemption pursuant to this Section
1101 shall be made pursuant to the provisions of Sections 1102 through 1108
hereof.
Section 1102. Applicability of Article.
Redemption of Securities at the election of the Company or
otherwise, as permitted or required by any provision of this Indenture, shall be
made in accordance with such provision and this Article Eleven.
Section 1103. Election to Redeem; Notice to Trustee.
The election of the Company to redeem any Securities pursuant
to Section 1101 hereof shall be evidenced by a Company Order and an Officers'
Certificate. In case of any redemption at the election of the Company, the
Company shall, not less than forty-five (45) nor more than sixty (60) days prior
to the Redemption Date fixed by the Company (unless a shorter notice period
shall be satisfactory to the Trustee), notify the Trustee in writing of such
Redemption Date, the Redemption Price and of the principal amount of Securities
to be redeemed.
Section 1104. Selection by Trustee of Securities to Be
Redeemed.
If less than all the Securities are to be redeemed, the
particular Securities or portions thereof to be redeemed shall be selected not
more than thirty (30) days prior to the Redemption Date by the Trustee, from the
Outstanding Securities not previously called for redemption, pro rata, by lot or
such other method as the Trustee shall deem fair and appropriate and the amounts
to be redeemed may be equal to $1,000 or any integral multiple thereof.
106
119
The Trustee shall promptly notify the Company and the Security
Registrar in writing of the Securities selected for redemption and, in the case
of any Securities selected for partial redemption, the principal amount thereof
to be redeemed.
For all purposes of this Indenture, unless the context
otherwise requires, all provisions relating to redemption of Securities shall
relate, in the case of any Security redeemed or to be redeemed only in part, to
the portion of the principal amount of such Security which has been or is to be
redeemed.
Section 1105. Notice of Redemption.
Notice of redemption shall be given by first-class mail,
postage prepaid, mailed not less than thirty (30) nor more than sixty (60) days
prior to the Redemption Date to each Holder of Securities to be redeemed at his
address appearing in the Security Register.
All notices of redemption shall state:
(a) the Redemption Date;
(b) the Redemption Price;
(c) if less than all Outstanding Securities are to be
redeemed, the identification of the particular Securities to be redeemed;
(d) in the case of a Security to be redeemed in part, the
principal amount of such Security to be redeemed and that after the Redemption
Date upon surrender of such Security, a new Security or new Securities in the
aggregate principal amount equal to the unredeemed portion thereof will be
issued;
(e) that Securities called for redemption must be surrendered
to the Paying Agent to collect the Redemption Price;
(f) that on the Redemption Date the Redemption Price will
become due and payable upon each such Security or portion thereof, and that
(unless the Company shall default in payment of the Redemption Price) interest,
and premium, if any, thereon shall cease to accrue on and after said date;
(g) the place or places where such Securities are to be
surrendered for payment of the Redemption Price;
(h) the paragraph of the Securities and/or Section of this
Indenture pursuant to which the Securities called for redemption are being
redeemed; and
(i) the CUSIP number, if any, relating to such Securities (as
to the accuracy of which the Trustee shall make no representation).
107
120
Notice of redemption of Securities to be redeemed at the
election of the Company shall be given by the Company or, at the Company's
written request, by the Trustee in the name and at the expense of PCI and the
Company.
The notice, if mailed in the manner herein provided, shall be
conclusively presumed to have been given, whether or not the Holder receives
such notice. In any case, failure to mail such notice, or any defect in any
notice so mailed, to any particular Holder of any Security designated for
redemption as a whole or in part shall not affect the validity of the
proceedings for the redemption of any other Security.
Section 1106. Deposit of Redemption Price.
On or prior to 10:00 a.m., New York City time, on any
Redemption Date, the Company shall deposit with the Trustee or with a Paying
Agent (or if the Company is acting as its own Paying Agent, segregate and hold
in trust as provided in Section 1018 hereof) an amount of money in same day
funds sufficient to pay the Redemption Price of and (except if the Redemption
Date shall be an Interest Payment Date) accrued interest on all the Securities
or portions thereof which are to be redeemed on that date. When the Redemption
Date falls on an Interest Payment Date, payments of interest due on such date
are to be paid as provided hereunder as if no such redemption were occurring.
Section 1107. Securities Payable on Redemption Date.
Notice of redemption having been given as aforesaid, the
Securities so to be redeemed shall, on the Redemption Date, become due and
payable at the Redemption Price therein specified and from and after such date
(unless the Company shall default in the payment of the Redemption Price and
accrued interest) such Securities shall cease to bear interest. Upon surrender
of any such Security for redemption in accordance with said notice, such
Security shall be paid by the Company at the Redemption Price together with
accrued interest to the Redemption Date; provided, however, that installments of
interest whose Stated Maturity is on or prior to the Redemption Date shall be
payable to the Holders of such Securities, or one or more Predecessor
Securities, registered as such on the relevant Regular Record Dates according to
the terms and the provisions of Section 309 hereof.
If any Security called for redemption shall not be so paid
upon surrender thereof for redemption, the principal, and premium, if any,
shall, until paid, bear interest from the Redemption Date at the rate borne by
such Security.
Section 1108. Securities Redeemed or Purchased in Part.
Any Security which is to be redeemed or purchased only in part
shall be surrendered to the Paying Agent at the office or agency maintained for
such purpose pursuant to Section 1002 hereof (with, if the Company, the Security
Registrar or the Trustee so requires, due endorsement by, or a written
instrument of transfer in form satisfactory to the Company, the Security
Registrar or the Trustee duly executed by the Holder thereof or such Xxxxxx's
attorney duly authorized in writing), and the Company shall execute, and the
Trustee shall authenticate and deliver to the Holder of such
108
121
Security without service charge, a new Security or Securities of any authorized
denomination as requested by such Holder in an aggregate principal amount equal
to, and in exchange for, the portion of the principal of the Security so
surrendered that is not redeemed or purchased.
Section 1109. Asset Sale Offers.
In the event that the Company shall commence an Asset Sale
Offer pursuant to Section 1009 hereof, it shall follow the procedures specified
below.
The Asset Sale Offer shall remain open for twenty (20)
Business Days after the date on which such Asset Sale Offer is commenced (the
"Commencement Date"), except to the extent required to be extended pursuant to
applicable law (as so extended, the "Asset Sale Offer Period"). No later than
one Business Day after the termination of the Asset Sale Offer Period (the
"Asset Sale Purchase Date"), the Company shall purchase the principal amount
(the "Asset Sale Offer Amount") of Securities required pursuant to Section 1009
hereof to be purchased in such Asset Sale Offer and other pari passu
Indebtedness that is required by its terms to be purchased in such Asset Sale
Offer or, if less than the Asset Sale Offer Amount has been tendered, all
Securities tendered in response to the Asset Sale Offer.
If the Asset Sale Purchase Date is on or after a Regular
Record Date and on or before the related Interest Payment Date, or any accrued
interest shall be paid to the Person in whose name a Security is registered at
the close of business on such Regular Record Date, and no additional interest
shall be payable to Holders who tender Securities pursuant to the Asset Sale
Offer.
On the Commencement Date of any Asset Sale Offer, the Company
shall send or cause to be sent, by first class mail, a notice to each of the
Holders, with a copy to the Trustee. Such notice, which shall govern the terms
of the Asset Sale Offer, shall contain all instructions and materials necessary
to enable the Holders to tender Securities pursuant to the Asset Sale Offer and
shall state:
(1) that the Asset Sale Offer is being made pursuant to
Section 1009 hereof and this Section 1109 and the length of time the
Asset Sale Offer shall remain open;
(2) the Asset Sale Offer Amount, the Asset Sale Purchase Price
and the Asset Sale Purchase Date;
(3) that any Security not tendered or accepted for payment
shall continue to accrue interest, and premium, if any, in accordance
with this Indenture;
(4) that, unless the Company defaults in the payment of the
Asset Sale Purchase Price, all Securities accepted for payment pursuant
to the Asset Sale Offer shall cease to accrue interest after the Asset
Sale Purchase Date;
109
122
(5) that Holders electing to have Securities purchased
pursuant to any Asset Sale Offer shall be required to surrender the
Security, with the form entitled "Option of Holder to Elect Purchase"
on the reverse of the Security completed, to the Company, a depositary,
if appointed by the Company, or a Paying Agent at the address specified
in the notice prior to the close of business on the Business Day
preceding the Asset Sale Purchase Date;
(6) that Holders shall be entitled to withdraw their election
if the Company, Depositary or Paying Agent, as the case may be,
receives not later than the close of business on the Business Day
preceding the termination of the Asset Sale Offer Period, a telegram,
telex, facsimile transmission or letter setting forth the name of the
Holder, the principal amount of the Security the Holder delivered for
purchase, the certificate number on the Security and a statement that
such Holder is withdrawing his election to have the Security purchased;
(7) that, if the aggregate principal amount of Securities
surrendered by Holders together with any other pari passu Indebtedness
that is required by its terms to be purchased in such Asset Sale Offer
exceeds the Asset Sale Offer Amount, the Company shall select the
Securities to be purchased on a pro rata basis (with such adjustments
as may be deemed appropriate by the Company so that only Securities in
denominations of $1,000, or integral multiples thereof, shall be
purchased); and
(8) that Holders whose Securities are purchased only in part
shall be issued new Securities equal in principal amount to the
unpurchased portion of the Securities surrendered, which unpurchased
portion must be equal to $1,000 principal amount or an integral
multiples thereof.
On or before 10:00 a.m., New York City time, on each Asset
Sale Purchase Date, the Company shall irrevocably deposit with the Trustee or
Paying Agent in immediately available funds the aggregate Asset Sale Purchase
Price with respect to a principal amount of Securities equal to the Asset Sale
Offer Amount, together with accrued interest thereon, to be held for payment in
accordance with the terms of this Section 1109. On the Asset Sale Purchase Date,
the Company shall, (i) to the extent lawful, (i) accept for payment, on a pro
rata basis to the extent necessary, an aggregate principal amount equal to the
Asset Sale Offer Amount of Securities tendered pursuant to the Asset Sale Offer,
or if less than the Asset Sale Offer Amount has been tendered, all Securities or
portions thereof tendered, (ii) deliver, or cause the Paying Agent or
depositary, as the case may be, to deliver to the Trustee Securities so
accepted, and (iii) deliver to the Trustee an Officers' Certificate stating that
such Securities or portions thereof were accepted for payment by the Company in
accordance with the terms of this Section 1109. The Company, a depositary or
Paying Agent, as the case may be, shall promptly (but in any case not later than
two (2) Business Days after the Asset Sale Purchase Date) mail or deliver to
each tendering Holder an amount equal to the Asset Sale Purchase Price with
respect to the Securities tendered by such Holder and accepted by the Company
for purchase, and the Company shall promptly issue a new Security, and the
Trustee shall authenticate and mail or deliver such new Security, to such
Holder,
110
123
equal in principal amount to any unpurchased portion of such Xxxxxx's Securities
surrendered. Any Security not accepted in the Asset Sale Offer shall be promptly
mailed or delivered by the Company to the Holder thereof. The Company shall
publicly announce in a newspaper of general circulation the results of the Asset
Sale Offer on the Asset Sale Purchase Date.
The Asset Sale Offer shall be made by the Company in
compliance with all applicable laws, including, without limitation, the
requirements of Rule 14e-1 under the Exchange Act, any other tender offer rules
under the Exchange Act and all other applicable U.S. Federal and state and
Canadian federal and provincial securities laws.
Subject to applicable escheat laws, as provided in the
Securities, the Trustee and the Paying Agent shall return to the Company any
cash that remains unclaimed, together with interest, if any, thereon, held by
them for the payment of the Asset Sale Purchase Price; provided, however, that
(x) to the extent that the aggregate amount of an Asset Sale Offer exceeds the
aggregate Asset Sale Purchase Price of the Securities or portions thereof to be
purchased, the Trustee shall hold such excess for the Company, and (y) unless
otherwise directed by the Company in writing, promptly after the Business Day
following the Asset Sale Purchase Date the Trustee shall return any such excess
to the Company together with interest or dividends, if any, thereon.
Other than as specifically provided in this Section 1109, each
purchase pursuant to this Section 1109 shall be made pursuant to the provisions
of Sections 1101 through 1108 hereof.
ARTICLE TWELVE
SATISFACTION AND DISCHARGE
Section 1201. Satisfaction and Discharge of Indenture.
This Indenture shall cease to be of further effect (except as
to surviving rights of registration of transfer or exchange of Securities herein
expressly provided for) and the Trustee, on demand of and at the expense of the
Company, shall execute proper instruments acknowledging satisfaction and
discharge of this Indenture, when each of the following are satisfied:
(a) either
(1) all the Securities theretofore authenticated and
delivered (other than (i) Securities which have been
destroyed, lost or stolen and which have been replaced or paid
as provided in Section 308 hereof, or (ii) all Securities for
whose payment United States dollars have theretofore been
deposited in trust or segregated and held in trust by the
Company and thereafter repaid to the Company or discharged
from such trust, as provided in Section 1018 hereof) have been
delivered to the Trustee for cancellation; or
111
124
(2) all such Securities not theretofore delivered to
the Trustee for cancellation (i) have become due and payable,
(ii) shall become due and payable at their Stated Maturity
within one year, or (iii) are to be called for redemption
within one year under arrangements satisfactory to the Trustee
for the giving of notice of redemption by the Trustee in the
name, and at the expense, of the Company, and the Company or
any Guarantor, in the case of (2)(i), (ii) or (iii) above, has
irrevocably deposited or caused to be deposited with the
Trustee as trust funds in trust for the purpose an amount in
United States dollars sufficient to pay and discharge the
entire Indebtedness on the Securities not theretofore
delivered to the Trustee for cancellation, for the principal,
premium, if any, and accrued interest at such Stated Maturity
or Redemption Date;
(b) the Company or any other Indenture Obligor has paid or
caused to be paid all other sums payable hereunder by the Company and such other
Indenture Obligor, and has indefeasibly discharged all Indebtedness hereunder;
and
(c) the Company has delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel stating that (i) all conditions precedent
herein provided for relating to the satisfaction and discharge of this Indenture
have been complied with, and (ii) such satisfaction and discharge shall not
result in a breach or violation of or constitute a default under, this Indenture
or any other material agreement or instrument to which the Company or any
Indenture Obligor is a party or by which the Company or any Indenture Obligor is
bound.
Opinions of Counsel required to be delivered under this
Section may have qualifications customary for opinions of the type required and
counsel delivering such Opinions of Counsel may rely on certificates of the
Company or government or other officials customary for opinions of the type
required, including certificates certifying as to matters of fact, including
that various financial covenants have been complied with.
Notwithstanding the satisfaction and discharge of this
Indenture, the obligations of the Company to the Trustee under Section 606
hereof and, if United States dollars shall have been deposited with the Trustee
pursuant to subclause (2) of subsection (a) of this Section, the obligations of
the Trustee under Section 1202 and the last paragraph of Section 1018 hereof
shall survive.
Section 1202. Application of Trust Money.
Subject to the provisions of the last paragraph of Section
1018 hereof, all United States dollars deposited with the Trustee pursuant to
Section 1201 hereof shall be held in trust and applied by it, in accordance with
the provisions of the Securities and this Indenture, to the payment, either
directly or through any Paying Agent (including the Company acting as its own
Paying Agent) as the Trustee may determine, to the Persons entitled thereto, of
the principal of, premium, if any, and interest on the Securities for whose
payment such United States dollars have been deposited with the Trustee.
112
125
ARTICLE THIRTEEN
GUARANTY
Section 1301. Guaranty; Limitation of Liability.
(a) Each Guarantor, jointly and severally, hereby absolutely,
unconditionally and irrevocably guaranties the punctual payment when due,
whether at scheduled maturity or on any date of a required or optional
prepayment or by acceleration, demand or otherwise, of all Indenture Obligations
of the Company now or hereafter existing under or in respect of the Indenture
Documents (including, without limitation, any extensions, modifications,
substitutions, amendments or renewals of any or all of the foregoing Indenture
Obligations), whether direct or indirect, absolute or contingent, and whether
for principal, interest, premiums, fees, indemnities, contract causes of action,
costs, expenses or otherwise (such Indenture Obligations being the "Guaranteed
Obligations"), and agrees to pay any and all expenses (including, without
limitation, reasonable fees and expenses of counsel) incurred by the Trustee,
the Collateral Agent or the Holders in enforcing any rights under each Guaranty
or any other Indenture Document. Without limiting the generality of the
foregoing, each Guarantor's liability shall extend to all amounts that
constitute part of the Guaranteed Obligations and would be owed by the Company
to the Trustee, the Collateral Agent and the Holders under or in respect of the
Indenture Documents but for the fact that they are unenforceable or not
allowable due to the existence of a bankruptcy, reorganization or similar
proceeding involving the Company.
(b) Each Guarantor, and by its acceptance of this Guaranty,
the Trustee, the Collateral Agent and each Holder, hereby confirms that it is
the intention of all such Persons that this Guaranty and the Indenture
Obligations of each Guarantor hereunder not constitute a fraudulent transfer or
conveyance for purposes of the Bankruptcy Code, the Uniform Fraudulent
Conveyance Act, the Uniform Fraudulent Transfer Act or any similar foreign,
federal or state law to the extent applicable to this Guaranty and the Indenture
Obligations of each Guarantor hereunder. To effectuate the foregoing intention,
the Trustee, the Collateral Agent, the Holders and the Guarantors hereby
irrevocably agree that the Indenture Obligations of each Guarantor under this
Guaranty at any time shall be limited to the maximum amount as will result in
the Indenture Obligations of such Guarantor under this Guaranty not constituting
a fraudulent transfer or conveyance.
(c) Each Guarantor hereby unconditionally and irrevocably
agrees that in the event any payment shall be required to be made to the
Trustee, the Collateral Agent or any Holders under this Guaranty or any other
guaranty, such Guarantor will contribute, to the maximum extent permitted by
law, such amounts to each other Guarantor and any other guarantor or surety so
as to maximize the aggregate amount paid to the Trustee, the Collateral Agent
and the Holders under or in respect of the Indenture Documents.
(d) It is specifically acknowledged and agreed that this
Guaranty has been delivered by each Guarantor free of any conditions whatsoever
and that no
113
126
representations, warranties or promises have been made to any Guarantor
affecting its liabilities hereunder, and that the Trustee shall not be bound by
any representations, warranties or promises now or at any time hereafter made by
the Company to any Guarantor.
Section 1302. Guaranty Absolute.
Each Guarantor guaranties that the Guaranteed Obligations will
be paid strictly in accordance with the terms of the Indenture Documents,
regardless of any law, regulation or order now or hereafter in effect in any
jurisdiction affecting any of such terms or the rights of the Trustee, the
Collateral Agent or any Holder with respect thereto. The obligations of each
Guarantor under or in respect of this Guaranty are independent of the Guaranteed
Obligations or any other Obligations of any other Indenture Obligor under or in
respect of the Indenture Documents, and a separate action or actions may be
brought and prosecuted against each Guarantor to enforce this Guaranty,
irrespective of whether any action is brought against the Company, any other
Guarantor or any of their respective Subsidiaries or whether the Company, any
other Guarantor or any of their respective Subsidiaries is joined in any such
action or actions. The liability of each Guarantor under this Guaranty shall be
irrevocable, absolute and unconditional irrespective of, and each Guarantor
hereby irrevocably waives any defenses it may now have or hereafter acquire in
any way relating to, any or all of the following:
(i) any lack of validity or enforceability of any Indenture Document or
any agreement or instrument relating thereto;
(ii) any change in the time, manner or place of payment of, or in any
other term of, all or any of the Guaranteed Obligations or any other Indenture
Obligations of any other Obligor under or in respect of the Indenture Documents,
or any other amendment or waiver of, or any consent to departure from, any
Indenture Document, including, without limitation, any increase in the
Guaranteed Obligations resulting from the extension of additional credit to any
Obligor or any of its Subsidiaries or otherwise;
(iii) any taking, exchange, release or non-perfection of any Collateral
or any other collateral, or any taking, release or amendment or waiver of, or
consent to departure from, any other guaranty, for all or any of the Guaranteed
Obligations;
(iv) any manner of application of Collateral or any other collateral,
or proceeds thereof, to all or any of the Guaranteed Obligations, or any manner
of sale or other disposition of any Collateral or any other collateral for all
or any of the Guaranteed Obligations or any other Indenture Obligations of any
Obligor under the Indenture Documents or any other assets of any Obligor or any
of its Subsidiaries;
(v) any change, restructuring or termination of the corporate structure
or existence of any Obligor or any of its Subsidiaries;
(vi) any failure of any of the Trustee, the Collateral Agent or any
Holder to disclose to any Obligor any information relating to the business,
condition (financial or otherwise), operations, performance, properties or
prospects of any other
114
127
Obligor now or hereafter known to the Trustee, the Collateral Agent or any
Holder (each Guarantor waiving any duty on the part of the Trustee, the
Collateral Agent or any Holder to disclose such information);
(vii) the failure of any other Person to execute or deliver this
Guaranty, any Guaranty Supplement or any other guaranty or agreement or the
release or reduction of liability of any Guarantor or other guarantor or surety
with respect to the Guaranteed Obligations; or
(viii) any other circumstance (including, without limitation, any
statute of limitations) or any existence of or reliance on any representation by
the Trustee, the Collateral Agent or any Holder that might otherwise constitute
a defense available to, or a discharge of, any Obligor or any other guarantor or
surety.
This Guaranty shall continue to be effective or be reinstated,
as the case may be, if at any time any payment of any of the Guaranteed
Obligations is rescinded or must otherwise be returned by the Trustee, the
Collateral Agent, or any Holder or any other Person upon the insolvency,
bankruptcy or reorganization of the Company or any other Indenture Obligor or
otherwise, all as though such payment had not been made.
Section 1303. Right to Demand Full Performance.
In the event of any demand for payment or performance by the
Trustee from any Guarantor hereunder, the Trustee or the Holders shall have the
right to demand its full claim and to receive all payments in respect thereof
until the Indenture Obligations have been paid in full and the Guarantors shall
continue to be jointly and severally liable hereunder for any balance which may
be owing to the Trustee or the Holders by the Company under this Indenture and
the Securities. The retention by the Trustee or the Holders of any security,
prior to the realization by the Trustee or the Holders of their rights to such
security upon foreclosure thereon, shall not, as between the Trustee and any
Guarantor, be considered as a purchase of such security, or as payment,
satisfaction or reduction of the Indenture Obligations due to the Trustee or the
Holders by the Company or any part thereof.
Section 1304. Waivers and Acknowledgments.
(a) Each Guarantor hereby unconditionally and irrevocably
waives promptness, diligence, notice of acceptance, presentment, demand for
performance, notice of nonperformance, default, acceleration, protest or
dishonor and any other notice with respect to any of the Guaranteed Obligations
and this Guaranty and any requirement that the Trustee, the Collateral Agent, or
any Holder protect, secure, perfect or insure any Lien or any property subject
thereto or exhaust any right or take any action against any Obligor or any
Person or any Collateral.
(b) Each Guarantor hereby unconditionally and irrevocably
waives any right to revoke this Guaranty and acknowledges that this Guaranty is
continuing in nature and applies to all Guaranteed Obligations, whether existing
now or in the future.
115
128
(c) Each Guarantor hereby unconditionally and irrevocably
waives, to the extent permitted by law, (i) any defense arising by reason of any
claim or defense based upon an election of remedies by the Trustee, the
Collateral Agent, or any Holders that in any manner impairs, reduces, releases
or otherwise adversely affects the subrogation, reimbursement, exoneration,
contribution or indemnification rights of such Guarantor or other rights of such
Guarantor to proceed against any of the other Indenture Obligors, any other
guarantor or surety or any other Person or any Collateral, and (ii) any defense
based on any right of set-off or counterclaim against or in respect of the
Indenture Obligations of such Guarantor hereunder.
(d) Each Guarantor acknowledges that the Trustee or the
Collateral Agent may, without notice to or demand upon such Guarantor and
without affecting the liability of such Guarantor under this Guaranty, foreclose
under any mortgage or other security interest by nonjudicial sale, and each
Guarantor hereby waives any defense to the recovery by the Trustee, the
Collateral Agent or the Holders against such Guarantor of any deficiency after
such nonjudicial sale and any defense or benefits that may be afforded by
applicable law.
(e) Each Guarantor hereby unconditionally and irrevocably
waives any duty on the part of the Trustee, the Collateral Agent, or any Holder
to disclose to such Guarantor any matter, fact or thing relating to the
business, condition (financial or otherwise), operations, performance,
properties or prospects of any other Obligor or any of its Subsidiaries now or
hereafter known by the Trustee, the Collateral Agent, or any Holder.
(f) Each Guarantor acknowledges that it will receive
substantial direct and indirect benefits from the financing arrangements
contemplated by the Indenture Documents and that the waivers set forth in
Section 1302 and this Section 1304 are knowingly made in contemplation of such
benefits.
Section 1305. The Guarantors Remain Obligated in Event the
Company is No Longer Obligated to Discharge Indenture Obligations.
It is the express intention of the Trustee and the Guarantors
that if for any reason the Company has no legal existence, is or becomes under
no legal obligation to discharge the Indenture Obligations owing to the Trustee
or the Holders by the Company or if any of the Indenture Obligations owing by
the Company to the Trustee or the Holders become irrecoverable from the Company
by operation of law or for any reason whatsoever, this Guaranty and the
covenants, agreements and obligations of the Guarantors contained in this
Article Thirteen shall nevertheless be binding upon the Guarantors, as principal
debtor, until such time as all such Indenture Obligations have been paid in full
to the Trustee and all Indenture Obligations owing to the Trustee or the Holders
by the Company have been discharged, or such earlier time as Section 402 hereof
shall apply to the Securities and the Guarantors shall be responsible for the
payment thereof to the Trustee or the Holders upon demand.
116
129
Section 1306. Subrogation.
Each Guarantor hereby unconditionally and irrevocably agrees
not to exercise any rights that it may now have or hereafter acquire against the
Company, any other Obligor or any other insider guarantor that arise from the
existence, payment, performance or enforcement of such Guarantor's Obligations
under or in respect of this Guaranty or any other Indenture Document, including,
without limitation, any right of subrogation, reimbursement, exoneration,
contribution or indemnification and any right to participate in any claim or
remedy of the Trustee, the Collateral Agent, or any Holder against the Company,
any other Obligor or any other insider guarantor or any Collateral, whether or
not such claim, remedy or right arises in equity or under contract, statute or
common law, including, without limitation, the right to take or receive from the
Company, any other Obligor or any other insider guarantor, directly or
indirectly, in cash or other property or by set-off or in any other manner,
payment or security on account of such claim, remedy or right, unless and until
all of the Guaranteed Obligations and all other amounts payable under this
Guaranty shall have been paid in full in cash. If any amount shall be paid to
any Guarantor in violation of the immediately preceding sentence at any time
prior to the latest of (a) the payment in full in cash of the Guaranteed
Obligations and all other amounts payable under this Guaranty, and (b) the full
and complete payment and performance of the Indenture Obligations, such amount
shall be received and held in trust for the benefit of the Trustee, the
Collateral Agent, and the Holders, shall be segregated from other property and
funds of such Guarantor and shall forthwith be paid or delivered to the Trustee
in the same form as so received (with any necessary endorsement or assignment)
to be credited and applied to the Guaranteed Obligations and all other amounts
payable under this Guaranty, whether matured or unmatured, in accordance with
the terms of the Indenture Documents, or to be held as Collateral for any
Guaranteed Obligations or other amounts payable under this Guaranty thereafter
arising. If (i) any Guarantor shall make payment to the Trustee, the Collateral
Agent or any Holder of all or any part of the Guaranteed Obligations, (ii) all
of the Guaranteed Obligations and all other amounts payable under this Guaranty
shall have been paid in full in cash, and (iii) the Indenture Obligations shall
have been paid and performed completely and fully, the Trustee, the Collateral
Agent, and the Holders will, at such Guarantor's request and expense, execute
and deliver to such Guarantor appropriate documents, without recourse and
without representation or warranty, necessary to evidence the transfer by
subrogation to such Guarantor of an interest in the Guaranteed Obligations
resulting from such payment made by such Guarantor pursuant to this Guaranty.
Section 1307. Subordination.
Each Guarantor hereby subordinates any and all debts, liabilities and other
obligations owed to such Guarantor by each other Obligor (the "Subordinated
Obligations") to the Guaranteed Obligations to the extent and in the manner
hereinafter set forth in this Section 1307.
(a) Prohibited Payments, Etc. Except during the continuance of
any Event of Default (including the commencement and continuation of any
proceeding
117
130
under any Bankruptcy Law relating to any other Obligor), each Guarantor may
receive regularly scheduled payments from any other Obligor on account of the
Subordinated Obligations. After the occurrence and during the continuance of any
Event of Default (including the commencement and continuation of any proceeding
under any Bankruptcy Law relating to any other Obligor), however, unless the
Holders of a majority of the aggregate principal amount of the Securities then
Outstanding otherwise agree, no Guarantor shall demand, accept or take any
action to collect any payment on account of the Subordinated Obligations.
(b) Prior Payment of Guaranteed Obligations. In any proceeding
under any Bankruptcy Law relating to any other Obligor, each Guarantor agrees
that the Trustee, the Collateral Agent, and the Holders shall be entitled to
receive payment in full in cash of all Guaranteed Obligations (including all
interest and expenses accruing after the commencement of a proceeding under any
Bankruptcy Law, whether or not constituting an allowed claim in such proceeding
("Post Petition Interest")) before such Guarantor receives payment of any
Subordinated Obligations.
(c) Turn-Over. After the occurrence and during the continuance
of any Event of Default (including the commencement and continuation of any
proceeding under any Bankruptcy Law relating to any other Obligor), each
Guarantor shall, if the Trustee so requests, collect, enforce and receive
payments on account of the Subordinated Obligations as trustee for the Trustee,
the Collateral Agent, and the Holders and deliver such payments to the Trustee
on account of the Guaranteed Obligations (including all Post Petition Interest
as referred to in Section 1307(b)), together with any necessary endorsements or
other instruments of transfer, but without reducing or affecting in any manner
the liability of such Guarantor under the other provisions of this Guaranty.
118
131
Section 1308. Continuing Guaranty; Assignments. This Guaranty
is a continuing guaranty and shall (a) remain in full force and effect until the
latest of (i) the payment in full in cash of the Guaranteed Obligations and all
other amounts payable under this Guaranty, and (ii) the payment and performance
in full of all the Indenture Obligations of all the Obligors under any Indenture
Document, (b) be binding upon each Guarantor, its successors and assigns
permitted by this Indenture, and (c) inure to the benefit of and be enforceable
by the Trustee, the Collateral Agent, and the Holders and their respective
successors, transferees and assigns. Without limiting the generality of clause
(c) of the immediately preceding sentence, the Trustee, the Collateral Agent or
any Holder may assign or otherwise transfer all or any portion of its rights
under this Guaranty (including, without limitation, all or any portion of its
New Tranche A Term Notes held by it) to any other Person, and such other Person
shall thereupon become vested with all the benefits in respect thereof granted
to the Trustee, the Collateral Agent, or such Holder herein or otherwise, in
each case as and to the extent provided in this Indenture. No Guarantor shall
have the right to assign its rights hereunder or any interest herein without the
prior written consent of the Trustee, the Collateral Agent and each of the
Holders.
Section 1309. Guaranty Is in Addition to Other Security.
This Guaranty shall be in addition to and not in substitution
for any other guaranties or other security which the Trustee may now or
hereafter hold in respect of the Indenture Obligations owing to the Trustee or
the Holders by the Company and (except as may be required by law) the Trustee
shall be under no obligation to marshal in favor of each of the Guarantors any
other guaranties or other security or any moneys or other assets which the
Trustee may be entitled to receive or upon which the Trustee or the Holders may
have a claim.
Section 1310. Contribution.
In order to provide for just and equitable contribution among
the Guarantors, the Guarantors agree, inter se, that in the event any payment or
distribution is made by any Guarantor (a "Funding Guarantor") under its
Guaranty, such Funding Guarantor shall be entitled to a contribution from all
other Guarantors in a pro rata amount based on the Adjusted Net Assets of each
Guarantor (including the Funding Guarantor) for all payments, damages and
expenses incurred by that Funding Guarantor in discharging the Company's
obligations with respect to the Securities or any other Guarantor's obligation
with respect to its Guaranty.
Section 1311. Trustee's Duties; Notice to Trustee.
(a) Any provision in this Article Thirteen or elsewhere in
this Indenture allowing the Trustee to request any information or to take any
action authorized by, or on behalf of any Guarantor, shall be subject to Section
602(d) and shall be permissive and shall not be obligatory on the Trustee except
as the Holders may direct in accordance with the provisions of this Indenture or
where the failure of the Trustee to
119
132
request any such information or to take any such action arises from the
Trustee's gross negligence, bad faith or willful misconduct.
(b) The Trustee shall not be required to inquire into the
existence, powers or capacities of the Company or any Guarantor or the officers,
directors or agents acting or purporting to act on their respective behalf.
Section 1312. Release of Guaranty.
Concurrently with the payment in full of all of the Indenture
Obligations, the Guarantors shall be released from and relieved of their
obligations under this Article Thirteen, except that this Section 1312 shall
survive such release of the Guarantors and the termination of this Indenture.
Upon the delivery by the Company to the Trustee of an Officers' Certificate and,
if requested by the Trustee, an Opinion of Counsel to the effect that the
transaction giving rise to the release of this Guaranty was made by the Company
in accordance with the provisions of this Indenture and the Securities, the
Trustee shall execute any documents reasonably required in order to evidence the
release of the Guarantors from their obligations under this Guaranty. If any of
the Indenture Obligations are revived and reinstated after the termination of
this Guaranty, then all of the obligations of the Guarantors under this Guaranty
shall be revived and reinstated as if this Guaranty had not been terminated
until such time as the Indenture Obligations are paid in full and each Guarantor
shall enter into an amendment to this Guaranty, reasonably satisfactory to the
Trustee, evidencing such revival and reinstatement.
Section 1313. Execution of Guaranty.
To evidence the Guaranty, each Guarantor hereby agrees to
execute the guaranty substantially in the form set forth in Section 206 hereof,
to be endorsed on each Security authenticated and delivered by the Trustee and
that this Indenture shall be executed on behalf of each Guarantor by its
Chairman of the Board, its President, or one of its Vice Presidents, under its
corporate seal reproduced thereon attested by its Secretary or one of its
Assistant Secretaries. The signature of any of these officers on the Securities
may be manual or facsimile.
If an officer whose signature is on this Indenture no longer
holds that office at the time the Trustee authenticates a Security on which a
Guaranty is endorsed, such Guaranty shall be valid nevertheless.
Section 1314. Payment Permitted by Each of the Guarantors if
no Default.
Nothing contained in this Article Thirteen, elsewhere in this
Indenture or in any of the Securities shall affect the obligation of any
Guarantor to make, or prevent any Guarantor from making at any time, payments
pursuant to the Securities.
120
133
Section 1315. Notice to Trustee by Each of the Guarantors.
Each Guarantor shall give prompt written notice to the Trustee
of any fact known to such Guarantor which would prohibit the making of any
payment to or by the Trustee in respect of the Guaranty. Notwithstanding the
provisions of this Article Thirteen or any provision of this Indenture, the
Trustee shall not be charged with knowledge of the existence of any facts which
would prohibit the making of any payment to or by the Trustee in respect of the
Securities, unless and until the Trustee shall have received written notice
thereof from any Guarantor or any Trustee, fiduciary or agent therefor. Prior to
the receipt of any such written notice, the Trustee shall be entitled in all
respects to assume that no such facts exist; provided, however, that if the
Trustee shall not have received the notice provided for in this Section at least
three (3) Business Days prior to the date upon which by the terms hereof any
money may become payable for any purpose (including, without limitation, the
payment of the principal of, premium, if any, or interest on any Security or any
other Indenture Obligations), then, anything herein contained to the contrary
notwithstanding, the Trustee shall have full power and authority to receive such
money and to apply the same to the purpose for which such money was received and
shall not be affected by any notice to the contrary which may be received by it
after such date nor shall the Trustee be charged with knowledge of the curing of
any such default or the elimination of the act or condition preventing any such
payment unless and until the Trustee shall have received an Officers'
Certificate to such effect.
Section 1316. Article Applicable to Paying Agents.
In case at any time any Paying Agent other than the Trustee
shall have been appointed by the Company and be then acting under this
Indenture, the term "Trustee" as used in this Article Thirteen shall in such
case (unless the context otherwise requires) be construed as extending to and
including such Paying Agent within its meaning as fully, for all intents and
purposes, as if such Paying Agent were named in this Article Thirteen in
addition to or in place of the Trustee; provided, however, that this Section
1316 shall not apply to the Company or any Affiliate of the Company if it or
such Affiliate acts as Paying Agent.
Section 1317. Additional Guaranties.
Each Subsidiary of an Indenture Obligor shall be a Guarantor
and, accordingly, if any Subsidiary of any Indenture Obligor shall be formed
after the Closing Date, such Indenture Obligor shall cause such Subsidiary to
execute and deliver to the Trustee a duly executed supplemental indenture,
pursuant to which such Subsidiary shall unconditionally guaranty, in accordance
with Article Thirteen hereof, all of PCI and the Company's obligations under the
Indenture and the Securities on the same terms as the other Guarantors, and such
guaranty shall rank pari passu with the senior Indebtedness of such Subsidiary.
121
134
Section 1318. No Suspension of Remedies.
Nothing contained in this Article Thirteen shall limit the
right of the Trustee or the Holders of Securities to take any action to
accelerate the maturity of the Securities pursuant to the provisions described
under Article Five and as set forth in this Indenture or to pursue any rights or
remedies hereunder or under applicable law.
ARTICLE FOURTEEN
CONDITIONS TO EFFECTIVENESS OF INDENTURE
This Indenture shall become effective, and the issuance of the
Securities shall be made subject to, the prior or concurrent satisfaction of
each of the conditions set forth in this Article Fourteen.
Section 1401. Conditions Precedent to the Effectiveness of the
Plan of Reorganization, etc. All conditions precedent to the effectiveness of
the Plan of Reorganization shall have been satisfied or waived in accordance
with the terms of the Plan of Reorganization, the Confirmation Order shall have
become a Final Order and the Effective Plan Date shall have occurred.
Section 1402. Implementation of Plan of Reorganization. The
transactions contemplated by the Plan of Reorganization to have been consummated
on or before the Closing Date shall have been consummated on or before the
Closing Date in accordance with the terms of the Plan of Reorganization,
including the Term Loan Agreement and the other Indenture Documents taking
effect, and the granting of Liens securing the Collateral.
ARTICLE FIFTEEN
SECURITY
Section 1501. Security.
(a) In order to secure the due and punctual payment of
principal of, premium, if any, and interest on the Indenture Obligations when
and as the same shall become due and payable, whether on an Interest Payment
Date, at maturity, by acceleration, repurchase, redemption, in connection with
an Change of Control or Asset Sale, or otherwise, and interest on the overdue
principal of, interest (to the extent permitted by law), and premium, if any, on
the Securities, and performance of all other obligations of the Company to the
Trustee or the Holders under this Indenture and each other Indenture Document
and of all obligations of the Guarantors under the Guaranty and each other
Indenture Document, the Company and the other Obligors have entered into the
applicable Security Documents to which each is a party. Each Indenture Obligor
122
135
hereby acknowledges and agrees with each other Indenture Obligor, the Trustee,
and the Holders that such Indenture Obligor has secured valuable and fair
consideration and corporate and other benefit for entering into each Security
Document to which it is a party.
(b) Each Holder, by accepting a Security, consents and agrees
to all of the terms and provisions of the Security Documents and the Common
Security and Intercreditor Agreement, as the same may be in effect or amended
from time to time in accordance with the provisions of the Security Documents,
the Common Security and Intercreditor Agreement and this Indenture, and
authorizes and directs the Collateral Agent to act as mortgagee or secured party
with respect thereto or to act as collateral agent pursuant to the Common
Security and Intercreditor Agreement.
(c) As set forth in and governed by the Security Documents, as
among the Holders, the Collateral as now or hereafter constituted shall be held
for the equal and ratable benefit of the Holders without preference, priority or
distinction of any thereof over any other by reason of difference in time of
issuance, sale or otherwise, as security for the Securities.
Section 1502. Recording; Priority; Opinions, Etc.
(a) Each Indenture Obligor will, and will cause each of its
Obligor Subsidiaries to, perform at its sole cost and expense any and all acts
and execute any and all documents (including, without limitation, the execution,
amendment or supplementation of any financing statement, continuation statement,
charge, registration or other statement) for filing under the provisions of the
UCC and the rules and regulations thereunder, applicable Canadian federal or
provincial statutes (including the Civil Code of Quebec) and the rules and
regulations thereunder, or any other statute, rule or regulation of any
applicable federal, state, provincial or local jurisdiction, including any
filings in local real estate land record offices, which are necessary or
advisable and shall do such other acts and execute such other documents as may
be required under any of the Security Documents to which it is a party, from
time to time, in order to grant and maintain valid and perfected Liens on the
Collateral relating to it in favor of the Collateral Agent in the priorities
expressed to be created by the Security Documents, subject only to Liens
permitted under the Security Documents to be senior or pari passu to the Liens
of the Collateral Agent, and to fully preserve and protect, and set-up against
third persons, the rights of the Trustee, the Collateral Agent and the Holder
under this Indenture and the other Indenture Documents. Each relevant Indenture
Obligor will, and will cause each of its Obligor Subsidiaries to, pay and
satisfy promptly all mortgage and financing and continuation statement recording
and/or filing fees or registration fees, charges and taxes relating to this
Indenture, the Security Documents and the other Indenture Documents, any
amendments thereto and any other instruments of further assurance.
(b) The Company shall, on each anniversary of the Closing Date
beginning in the year 2002 and upon each delivery of a stock pledge agreement
pursuant to Section 1017, furnish to the Trustee an Opinion of Counsel, dated as
of such date,
123
136
either (a) to the effect that, in the opinion of such counsel, such action has
been taken with respect to the recordings, registerings, filings, re-recordings,
re-registerings and refilings of all financing statements, continuation
statements or other instruments of further assurance as is necessary to maintain
the Lien of each of the Security Documents and reciting with respect to such
Liens the details of such action or referencing prior Opinions of Counsel in
which such details are given, and stating that all financing statements and
continuation statements and other filings or registrations have been executed
and filed that are necessary as of such date, and during the succeeding twelve
months, fully to preserve and protect, and set-up against third persons, the
rights of the Collateral Agent, the Holders and the Trustee hereunder and under
each of the Security Documents with respect to the Liens, or (b) to the effect
that, in the opinion of such counsel, no such action is necessary to maintain
such Liens.
Section 1503. Release of Collateral.
The Trustee shall not direct the Collateral Agent to release
Collateral from the Lien of the Security Documents unless such release is in
accordance with the provisions of the Security Documents and Trust Indenture
Act, Section 314(d).
Section 1504. Trust Indenture Act Requirements.
The release of any Collateral from any of the Security
Documents or the release of, in whole or in part, the Liens created by any of
the Security Documents, will not be deemed to impair the Lien of the Security
Documents in contravention of the provisions hereof if and to the extent the
Collateral or Liens are released pursuant to the terms of the Security
Documents. The Trustee and each of the Holders acknowledge that a release of
Collateral or Liens strictly in accordance with the terms of the Security
Documents and the terms hereof will not be deemed for any purpose to be an
impairment of the Liens created pursuant to the Security Documents in
contravention of the terms of this Indenture. Without limitation, the Company
and each other Indenture Obligor on the Securities shall cause Trust Indenture
Act, Section 314(d) relating to the release of property or securities from the
Liens of the Security Documents to be complied with. Any certificate or opinion
required by Trust Indenture Act, Section 314(d) may be made by an officer of
PCI, the Company or any Guarantor, as the case may be, except in cases where
Trust Indenture Act, Section 314(d) requires that such certificate or opinion be
made by an independent person.
Section 1505. Suits to Protect Collateral.
Subject to the provisions of the Common Security and
Intercreditor Agreement, the Trustee, acting at the written direction of the all
Holders, shall have power to institute and to maintain, or direct the Collateral
Agent to institute and maintain, such suits and proceedings as the Trustee may
deem expedient to prevent any impairment of the Collateral by any acts which may
be unlawful or in violation of any of the Security Documents or this Indenture,
and such suits and proceedings as the Trustee may deem expedient to preserve or
protect its interests and the interests of the Holders in the Collateral
(including power to institute and maintain suits or proceedings to restrain the
124
137
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 Liens of each Collateral Agent in the Collateral or be prejudicial to
the interests of the Holders or the Trustee). Nothing in this Section 1505 shall
prohibit, restrict or prevent the Holders, upon the vote or consent of the
Holders of a majority of the aggregate principal amount of the Securities then
Outstanding, to institute such suits or proceedings independently of the Trustee
and/or the Collateral Agent.
Section 1506. Determinations Relating to Collateral.
In the event (a) the Trustee shall receive any written request
from PCI, the Company or any Guarantor under any Security Document for consent
or approval with respect to any matter or thing relating to any Collateral or
any Obligor's obligations with respect thereto, or (b) there shall be due to or
from the Trustee under the provisions of any Security Document, any performance
or the delivery of any instrument, or (c) the Trustee shall become aware of any
nonperformance by any Obligor of any covenant or any breach of any
representation or warranty of PCI, the Company or any Guarantor set forth in any
Security Document, then, in each such event, the Trustee shall be entitled, at
the expense of the Company and subject to Sections 602(d) and (h) hereof, to
hire experts, consultants, agents and attorneys (including internal counsel) to
advise the Trustee on the manner in which the Trustee should respond to such
request or render any requested performance or response to such nonperformance
or breach. The Trustee shall be fully protected in the taking of any action
recommended or approved by any such expert, consultant, agent or attorney
(including internal counsel) or agreed to by the Holders of a majority of the
aggregate principal amount of the Securities then Outstanding pursuant to
Section 505 hereof.
Section 1507. Trust Moneys.
To the extent Trust Moneys consist of insurance proceeds or
condemnation or other taking awards, any such moneys which may be used to effect
a restoration of the affected Collateral shall be permitted to be withdrawn by
the Company and paid by the Collateral Agent in accordance with the Common
Security and Intercreditor Agreement. The Company shall deliver (a) an Officers'
Certificate certifying as to expenditures made or costs incurred, the necessity
or desirability in the conduct of the Company's business of the repaired,
rebuilt, or replaced property, and the Fair Market Value of such property as of
the date of the expenditures, (b) an Opinion of Counsel as to the validity and
perfection of the Collateral Agent's lien on the repaired or replaced Collateral
and (c) an architect's certificate as to the costs of such restoration and
compliance with law, all in accordance with the Common Security and
Intercreditor Agreement.
To the extent Trust Moneys consist of Collateral Proceeds, and
the Company intends to reinvest such proceeds in the Company or in one or more
Subsidiaries in a Related Business, such Trust Moneys shall be permitted to be
withdrawn by the Company upon delivery to the Trustee and the Collateral Agent
of (a) a
125
138
Company Order regarding such withdrawal, (b) an Officers' Certificate certifying
compliance with the Indenture, (c) instruments granting the Collateral Agent
first priority Liens, for the benefit of the Trustee, for itself and the
Holders, and the Administrative Agent, for itself and the Lenders on the real or
personal property interests in which the Company or any Subsidiary have
invested, and (d) an Opinion of Counsel as to the instruments governing such
Liens and security interests, all in accordance with the Common Security and
Intercreditor Agreement.
Trust Moneys shall be permitted to be applied from time to
time (x) to the payment of principal, premium, if any, and interest on the
Securities, or (y) to the extent otherwise permitted by the Indenture, to redeem
or repurchase Securities, including without limitation pursuant to a Change of
Control Offer or (to the extent such Trust Moneys constitute proceeds from Asset
Sales) an Asset Sale Offer, or (z) at the direction of PCI, the Company and each
Guarantor, to pay any other Indebtedness secured by liens in the Collateral (but
only to the extent such Trust Moneys constitute Collateral Proceeds). In each
case the Trustee and each Collateral Agent shall receive (a) resolutions of the
Boards of Directors of the PCI, the Company and each Guarantor directing such
application, (b) an Officers' Certificate, and (c) an Opinion of Counsel, and
the Collateral Agent shall receive cash equaling the accrued interest, if any,
required to be paid in connection with such payment or purchase. Trust Moneys
received by each Collateral Agent or the Trustee pursuant to an Asset Sale Offer
remaining after the completion of such Asset Sale Offer shall be permitted to be
withdrawn by the Company upon request of the Company and delivery of an
Officers' Certificate and an Opinion of Counsel, all in accordance with the
Common Security and Intercreditor Agreement.
Any release of Collateral, including Trust Moneys, will be
subject to the provisions of Section 314(d) of the Trust Indenture Act relating
to, among other things, the delivery of a certificate or an opinion of an
engineer, appraiser or other expert as to the Fair Market Value of Collateral
being released from the Liens of the Security Documents.
Section 1508. Power of Attorney for Collateral in Quebec.
For the purposes of the security on the Collateral located in
Quebec, the validity, publication or perfection of which is governed by the laws
of the province of Quebec, each of the Trustee and the Holders hereby
irrevocably grants to the Collateral Agent a power of attorney within the
meaning of the Civil Code of Quebec (the "Power of Attorney"). The Collateral
Agent hereby accepts such Power of Attorney for the purposes of holding such
security. Each Holder agrees (i) with the other Holders that it will not,
without the prior consent of the Trustee and the other Holders, take or obtain
any Lien on any property of the Company to secure the Indenture Obligations of
the Company hereunder or under the Securities, except for the benefit of the
Collateral Agent for and on behalf of, the Trustee and the Holders, or as may
otherwise be required by law; and (ii) that, notwithstanding the provisions of
Section 32 of the Special Corporate Powers Act (Quebec), the Collateral Agent
may, as a Person holding the Power of Attorney of the Trustee and the Holders,
acquire any title to indebtedness secured by any
126
139
hypothec in its favor related to this Indenture or the Securities or any other
document contemplated hereunder.
[signature pages follow]
127
140
IN WITNESS WHEREOF, the parties hereto have caused this
Indenture to be duly executed, all as of the day and year first above written.
PCI CHEMICALS CANADA COMPANY/
SOCIETE PCI CHIMIE CANADA,
as Issuer
Attest By
------------------------------- -------------------------------
Name: Name:
Title: Title:
PIONEER COMPANIES, INC.
Attest By
------------------------------- -------------------------------
Name: Name:
Title: Title:
SUBSIDIARY GUARANTORS:
IMPERIAL WEST CHEMICAL CO.
Attest By
------------------------------- -------------------------------
Name: Name:
Title: Title:
KEMWATER NORTH AMERICA CO.
Attest By
------------------------------- -------------------------------
Name: Name:
Title: Title:
PIONEER AMERICAS LLC
Attest By
------------------------------- -------------------------------
Name: Name:
Title: Title:
141
PIONEER (EAST), INC.
Attest By
------------------------------- -------------------------------
Name: Name:
Title: Title:
PIONEER WATER TECHNOLOGIES, INC.
Attest By
------------------------------- -------------------------------
Name: Name:
Title: Title:
PIONEER LICENSING, INC.
Attest By
------------------------------- -------------------------------
Name: Name:
Title: Title:
KWT, INC.
Attest By
------------------------------- -------------------------------
Name: Name:
Title: Title:
142
SCHEDULE 1
[EXISTING INDEBTEDNESS]
[To be filed with Amendment to Form T-3]
143
SCHEDULE 2
[EXISTING INVESTMENTS]
[To be filed with Amendment to Form T-3]
144
EXHIBIT A
[FORM OF MORTGAGE]
[To be filed with Amendment to Form T-3]
145
EXHIBIT B
[FORM OF COMMON SECURITY AND INTERCREDITOR AGREEMENT]
[To be filed with Amendment to Form T-3]
146
EXHIBIT C
[FORM OF STOCK PLEDGE AGREEMENT]
[To be filed with Amendment to Form T-3]
