INDENTURE, dated as of February 19, 1998, among Hvide Marine
Incorporated, a Florida corporation (the "Company"), each of the subsidiaries
listed on Schedule A hereto (each a "Guarantor" and, collectively, the
"Guarantors"), and The Bank of New York, as trustee (the "Trustee").
RECITALS
The Company has duly authorized the creation and issuance of
its 8 3/8% Senior Notes due 2008 (the "Initial Senior Notes") of substantially
the tenor and amount hereinafter set forth; and to provide therefor and for, if
and when issued as further evidence of the Company's indebtedness and in
substitution for the Initial Senior Notes pursuant to this Indenture and the
Registration Rights Agreement (as defined herein), the Company's 8 3/8% Senior
Notes due 2008 (the "Exchange Notes," and together with the Initial Senior
Notes, the "Senior Notes"), the Company has duly authorized the execution and
delivery of this Indenture.
All things necessary to make the Senior Notes, when executed
by the Company and authenticated and delivered by the Trustee hereunder and duly
issued by the Company, the valid obligations of the Company, and to make this
Indenture a valid instrument of the Company and the Guarantors, in accordance
with their respective terms, have been done.
NOW, THEREFORE, THIS INDENTURE WITNESSETH, that, for and in
consideration of the premises and the purchase of the Initial Senior Notes by
the Holders thereof, it is mutually covenanted and agreed, for the equal and
proportionate benefit of all Holders of the Senior Notes, as follows:
ARTICLE 1
DEFINITIONS AND INCORPORATION
BY REFERENCE
SECTION 1.1 Definitions.
For all purposes of this Indenture, except as otherwise expressly
provided or unless the context otherwise requires.
"Acquired Indebtedness" means, with respect to any specified Person,
Indebtedness of any other Person existing at the time such other Person merged
with or into or became a subsidiary of such specified Person, including
Indebtedness incurred in connection with, or in contemplation of, such other
Person merging with or into or becoming a subsidiary of such specified Person,
but excluding Indebtedness which is extinguished, retired or repaid in
connection with such other Person merging with or into or becoming a subsidiary
of such specified Person.
"Adjusted Net Assets" of a Guarantor at any date shall mean the amount
by which the fair value of the Property and other assets 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 Guarantee of such Guarantor.
"Affiliate" of any specified Person means another Person directly or
indirectly controlling or controlled by or under direct or indirect common
control with such specified 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, shall mean
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 10% or more of the Voting Stock of a Person shall
be deemed to be control.
"Agent" means any Registrar, Paying Agent or co-registrar.
"Applicable Procedures" means, with respect to any transfer or exchange
of beneficial interests in a Global Note, the rules and procedures of the
Depository that apply to such transfer and exchange.
"Asset Sale" means any direct or indirect sale, conveyance, transfer,
lease or other disposition (including, without limitation, by way of merger or
consolidation or by means of a Sale and Lease-Back Transaction) by the Company
or any Subsidiary to any Person other than the Company or a Subsidiary, in one
transaction, or a series of related transactions, of (i) any Capital Stock of
any Subsidiary (except for directors' qualifying shares or certain minority
interests sold to other Persons solely due to local law requirements that there
be more than one stockholder, but which are not in excess of what is required
for such purpose), or (ii) any other Property or assets of the Company or any
Subsidiary, other than (A) sales of obsolete or worn out equipment in the
ordinary course of business or other assets that, in the Company's reasonable
judgment, are no longer used or useful in the conduct of the business of the
Company and its Subsidiaries), (B) any charter (bare boat or otherwise) or other
lease of Property or other assets entered into by the Company or any Subsidiary
in the ordinary course of business, other than any Bargain Purchase Contract,
(C) a Restricted Payment or Restricted Investment permitted under Section 4.11,
(D) a Change of Control, and (E) a consolidation, merger, continuance or the
disposition of all or substantially all of the assets of the Company and the
Subsidiaries, taken as a whole, in compliance with the provision herein
described in Article 5. An Asset Sale shall include the requisition of title to,
seizure of or forfeiture of any Property or assets, or any actual or
constructive total loss or an agreed or compromised total loss of any Property
or assets.
"Attributable Indebtedness" in respect of a Sale and Lease-Back
Transaction means, at any date of determination, the present value (discounted
at the interest rate borne by the Senior Notes, compounded annually) of the
total obligations of the lessee for rental payments during the remaining term of
the lease (or to the first date on which the lessee is permitted to terminate
such lease without the payment of a penalty) included in such Sale and
Lease-Back Transaction (including any period for which such lease has been
extended).
"Average Life" means, as of any date, with respect to any debt
security, the quotient obtained by dividing (i) the sum of the products of (x)
the number of years from such date to the date of each scheduled principal
payment (including any sinking fund or mandatory redemption payment
requirements) of such debt security multiplied in each case by (y) the amount of
such principal payment by (ii) the sum of all such principal payments.
"Bargain Purchase Contract" means a charter or lease that provides for
acquisition of the Property subject thereto by the other party to such agreement
during or at the end of the term thereof for less than the Fair Market Value
thereof at the time such right to acquire such Property is granted.
"Board of Directors" of any Person means the Board of Directors of such
Person, or any authorized committee of such Board of Directors.
"Board Resolution" means a copy of a resolution certified by a
Secretary or Assistant Secretary of the Company or a Subsidiary of the Company
to have been duly adopted by the Board of Directors thereof and to be in full
force and effect on the date of such certification and delivered to the Trustee.
"Business Day" means any day other than a Legal Holiday.
"Capital Lease Obligation" means, at any time as to any Person with
respect to any Property leased by such Person as lessee, the amount of the
liability with respect to such lease that would be required at such time to be
capitalized and accounted for as a capital lease on the balance sheet of such
Person prepared in accordance with GAAP.
"Capital Stock" in any Person means any and all shares, interests,
partnership interests, participations or other equivalents in the equity
interest (however designated) in such Person and any rights (other than debt
securities convertible into an equity interest), warrants or options to acquire
any equity interest in such Person.
"Cash Proceeds" means, with respect to any Asset Sale by any Person,
the aggregate consideration received for such Asset Sale by such Person in the
form of cash or cash equivalents (including any amounts of insurance or other
proceeds received in connection with an Asset Sale of the type described in the
last sentence of the definition thereof or marketable securities that are
converted into cash or cash equivalents within 30 days of an Asset Sale),
including payments in respect of deferred payment obligations when received in
the form of cash or cash equivalents (except to the extent that such obligations
are financed or sold with recourse to such Person or any subsidiary thereof).
"Cedel" means Cedel Bank, societe anonyme.
"Certificated Senior Notes" means Senior Notes that are substantially
in the form of the Senior Note attached hereto as Exhibit A, that do not include
the information or text called for by footnotes 1, 3 and 4 thereto.
"Change of Control" means (i) a determination by the Company that any
Person or group (as defined in Section 13(d)(3) or 14(d)(2) of the Exchange Act)
has become the direct or beneficial owner (as defined in Rule 13d-3 under the
Exchange Act) of more than 50% of the voting power of the outstanding Voting
Stock of the Company other than Permitted Holders; (ii) the Company is merged
with or into or consolidated with another corporation and, immediately after
giving effect to the merger or consolidation, less than 50% of the outstanding
voting securities entitled to vote generally in the election of directors or
persons who serve similar functions of the surviving or resulting entity are
then beneficially owned (within the meaning of Rule 13d-3 of the Exchange Act)
in the aggregate by (x) the stockholders of the Company immediately prior to
such merger or consolidation, or (y) if the record date has been set to
determine the stockholders of the Company entitled to vote on such merger or
consolidation, the stockholders of the Company as of such a record date; (iii)
the Company, either individually or in conjunction with one or more
Subsidiaries, sells, conveys, transfers or leases, or the Subsidiaries sell,
convey, transfer or lease, all or substantially all of the assets of the Company
or the Company and the Subsidiaries, taken as a whole (either in one transaction
or a series of related transactions), including Capital Stock of the
Subsidiaries, to any Person (other than a Wholly Owned Subsidiary); (iv) the
liquidation or dissolution of the Company; or (v) the first day on which a
majority of the individuals who constitute the Board of Directors of the Company
are not Continuing Directors.
"Commission" means the U.S. Securities and Exchange Commission, as
from time to time constituted, created under the Exchange Act, or if at any time
after the date of execution of this Indenture, such commission is not existing
and performing the duties assigned to it under the Trust Indenture Act, the body
performing such duties at such time.
"Company Order" means a written order or request signed in the name of
an Officer and delivered to the Trustee.
"Company" means the Person named as such in the preamble of this
Indenture unless and until a successor replaces it pursuant to the applicable
provisions hereof and thereafter means such successor.
"Consolidated Interest Coverage Ratio" means as of the date of the
transaction giving rise to the need to calculate the Consolidated Interest
Coverage Ratio (the "Transaction Date"), the ratio of (a) the aggregate amount
of EBITDA of the Company and its consolidated Subsidiaries for the four fiscal
quarters for which financial information in respect thereof is available
immediately prior to the applicable Transaction Date (the "Determination
Period") to (b) the aggregate Consolidated Interest Expense of the Company and
its consolidated Subsidiaries that is anticipated to accrue during a period
consisting of the fiscal quarter in which the Transaction Date occurs and the
three fiscal quarters immediately subsequent thereto (based upon the pro forma
amount and maturity of, and interest payments in respect of, Indebtedness of the
Company and its consolidated Subsidiaries expected by the Company to be
outstanding on the Transaction Date), assuming for the purposes of this
measurement the continuation of market interest rates prevailing on the
Transaction Date and base interest rates in respect of floating interest rate
obligations equal to the base interest rates on such obligations in effect as of
the Transaction Date; provided that if the Company or any of its consolidated
Subsidiaries is a party to any Interest Swap Obligation that would have the
effect of changing the interest rate on any Indebtedness of the Company or any
of its consolidated Subsidiaries for such four-quarter period (or a portion
thereof), the resulting rate shall be used for such four-quarter period or
portion thereof; provided, further, that any Consolidated Interest Expense of
the Company with respect to Indebtedness incurred or retired by the Company or
any of its Subsidiaries during the fiscal quarter in which the Transaction Date
occurs shall be calculated as if such Indebtedness was incurred or retired on
the first day of the fiscal quarter in which the Transaction Date occurs; and
provided, further, that if the transaction giving rise to the need to calculate
the Consolidated Interest Coverage Ratio would have the effect of increasing or
decreasing EBITDA in the future and if such increase or decrease is readily
quantifiable and is attributable to such transaction, EBITDA shall be calculated
on a pro forma basis as if such transaction had occurred on the first day of the
Determination Period, and if, during the Determination Period (x) the Company or
any of its consolidated Subsidiaries shall have engaged in any Asset Sale,
EBITDA for such period shall be reduced by an amount equal to the EBITDA (if
positive), or increased by an amount equal to the EBITDA (if negative), directly
attributable to the assets which are the subject of such Asset Sale for such
period calculated on a pro forma basis as if such Asset Sale and any related
retirement of Indebtedness had occurred on the first day of such period or (y)
after the Issue Date, the Company or any of its consolidated Subsidiaries shall
have acquired any material assets other than in the ordinary course of business,
EBITDA and Consolidated Interest Expense shall be calculated on a pro forma
basis as if such acquisition had occurred on the first day of such period.
"Consolidated Interest Expense" means, with respect to any Person for
any period, without duplication (A) the sum of (i) the aggregate amount of cash
and noncash interest expense (including capitalized interest) of such Person and
its subsidiaries for such period as determined on a consolidated basis in
accordance with GAAP in respect of Indebtedness (including, without limitation,
(v) any amortization of debt discount, (w) net costs associated with Interest
Swap Obligations (including any amortization of discounts), (x) the interest
portion of any deferred payment obligation calculated in accordance with the
effective interest method, (y) all accrued interest and (z) all commissions,
discounts and other fees and charges owed with respect to letters of credit,
bankers acceptances or similar facilities) paid or accrued, or scheduled to be
paid or accrued, during such period; (ii) dividends on Preferred Stock or
Redeemable Stock of such Person (and Preferred Stock or Redeemable Stock of its
subsidiaries if paid to a Person other than such Person or its subsidiaries)
declared and payable in cash; (iii) the portion of any rental obligation of such
Person or its subsidiaries in respect of any Capital Lease Obligation allocable
to interest expense in accordance with GAAP; (iv) the portion of any rental
obligation of such Person or its subsidiaries in respect of any Sale and
Lease-Back Transaction allocable to interest expense (determined as if such were
treated as a Capital Lease Obligation); and (v) to the extent any debt of any
other Person is guaranteed by such Person or any of its subsidiaries, the
aggregate amount of interest paid, accrued or scheduled to be paid or accrued,
by such other Person during such period attributable to any such debt, less (B)
to the extent included in (A) above, amortization or write-off of deferred
financing costs of such Person and its subsidiaries during such period and any
charge related or any premium or penalty paid in connection with redeeming or
retiring any Indebtedness of such Person and its subsidiaries prior to its
stated maturity; in the case of both (A) and (B) above, after elimination of
intercompany accounts among such Person and its subsidiaries and as determined
in accordance with GAAP. For purposes of clause (ii) above, dividend
requirements attributable to any Preferred Stock or Redeemable Stock shall be
deemed to be an amount equal to the amount of dividend requirements on such
Preferred Stock or Redeemable Stock times a fraction, the numerator of which is
one, and the denominator of which is one minus the applicable combined federal,
state, local and foreign income tax rate of the Company and its Subsidiaries
(expressed as a decimal), on a consolidated basis, for the fiscal year
immediately preceding the date of the transaction giving rise to the need to
calculate Consolidated Interest Expense.
"Consolidated Net Income" of any Person means, for any period, the
aggregate net income (or net loss, as the case may be) of such Person and its
subsidiaries for such period on a consolidated basis, determined in accordance
with GAAP, provided that there shall be excluded therefrom, without duplication,
(i) any net income of any Unrestricted Subsidiary, except that the Company's or
any Subsidiary's interest in the net income of such Unrestricted Subsidiary for
such period shall be included in such Consolidated Net Income up to the
aggregate amount of cash or cash equivalents actually distributed by such
Unrestricted Subsidiary during such period to the Company or a Subsidiary as a
dividend or other distribution, (ii) gains and losses, net of taxes, from Asset
Sales or reserves relating thereto, (iii) the net income of any Person that is
not a subsidiary or that is accounted for by the equity method of accounting
which shall be included only to the extent of the amount of dividends or
distributions paid to such Person or its subsidiaries, (iv) items (but not loss
items) classified as extraordinary, unusual or nonrecurring (other than the tax
benefit, if any, of the utilization of net operating loss carryforwards or
alternative minimum tax credits), (v) the net income (but not net loss) of any
Person acquired by such specified Person or any of its subsidiaries in a
pooling-of-interests transaction for any period prior to the date of such
acquisition, (vi) any gain or loss, net of taxes, realized on the termination of
any employee pension benefit plan, (vii) the net income (but not net loss) of
any subsidiary of such specified Person to the extent that the transfer to that
Person of that income is not at the time permitted, directly or indirectly, by
any means (including by dividend, distribution, advance or loan or otherwise),
or by operation of the terms of its charter or any agreement with a Person other
than with such specified Person, instrument held by a Person other than by such
specified Person, judgment, decree, order, statute, law, rule or governmental
regulations applicable to such subsidiary or its stockholders, except for any
dividends or distributions actually paid by such subsidiary to such Person, and
(viii) with regard to a non-Wholly Owned Subsidiary, any aggregate net income
(or loss) in excess of such Person's or such subsidiary's pro rata share of such
non-Wholly Owned Subsidiary's net income (or loss).
"Consolidated Net Worth" of any Person means, as of any date, the sum
of the Capital Stock and additional paid-in capital plus retained earnings (or
minus accumulated deficit) of such Person and its subsidiaries on a consolidated
basis at such date, each item determined in accordance with GAAP, less amounts
attributable to Redeemable Stock of such Person or any of its subsidiaries.
"Continuing Director" means an individual who (i) is a member of the
Board of Directors of the Company and (ii) either (A) was a member of the Board
of Directors of the Company on the Issue Date or (B) whose nomination for
election or election to the Board of Directors of the Company was approved by
vote of at least a majority of the directors then still in office who were
either directors on the Issue Date or whose election or nomination for election
was previously so approved.
"Corporate Trust Office of the Trustee" shall be at the address of the
Trustee specified in Section 11.2 hereof or such other address as to which the
Trustee may give notice to the Company.
"Credit Facility" means a revolving credit facility providing for
aggregate borrowings up to a maximum of $175,000,000 pursuant to a Revolving
Credit Agreement dated September 30, 1997 among the Company, the lenders party
thereto, Citibank, N.A., as Administrative Agent and BankBoston, N.A., as
Syndication Agent, as such may be amended, supplemented, modified, revised or
extended from time to time
"Currency Hedge Obligations" means, at any time as to any Person, the
obligations of such Person at such time which were incurred in the ordinary
course of business pursuant to any foreign currency exchange agreement, option
or future contract or other similar agreement or arrangement designed to protect
against or manage such Person's or any of its subsidiaries' exposure to
fluctuations in foreign currency exchange rates.
"Debenture Indenture" means that certain Indenture dated as of June 27,
1997, between the Company and the trustee named therein relating to $118,500,000
aggregate principal amount of Debentures, as such may be amended, supplemented
or modified from time to time.
"Debentures" means the 6 1/2% Convertible Subordinated Debentures due June
15, 2012 issued pursuant to the Debenture Indenture.
"Default" means any event, act or condition the occurrence of which is,
or after notice or the passage time or both would be, an Event of Default.
"Depositary" means, with respect to the Senior Notes issuable or issued
in whole or in part in global form, the Person specified in Section 2.3 hereof
as the Depositary with respect to the Senior Notes, until a successor shall have
been appointed and become such Depositary pursuant to the applicable provision
of this Indenture, and, thereafter, "Depositary" shall mean or include such
successor.
"Determination Period" has the meaning specified in clause (a) of the
definition of "Consolidated Interest Coverage Ratio."
"EBITDA" means, with respect to any Person for any period, the
Consolidated Net Income of such Person for such period, plus to the extent
reflected in the income statement of such Person for such period from which
Consolidated Net Income is determined, without duplication, (i) Consolidated
Interest Expense, (ii) income tax expense, (iii) depreciation expense, (iv)
amortization expense, (v) any charge related to any premium or penalty paid in
connection with redeeming or retiring any Indebtedness prior to its stated
maturity and (vi) any other non-cash charges minus, to the extent reflected in
such income statement, any noncash credits that had the effect of increasing
Consolidated Net Income of such Person for such period.
"Euroclear" means the Euroclear System for which Xxxxxx Guaranty Trust
Company of New York, Brussels office, is the operator and depositary.
"Exchange Act" means the U.S. Securities Exchange Act of 1934, as
amended.
"Exchange Global Note" means one or more Global Notes that do not and
are not required to bear the Private Placement Legend.
"Exchange Notes" has the meaning set forth in the Recitals to this
Indenture and more particularly means any of the Senior Notes authenticated and
delivered under this Indenture pursuant to the Exchange Offer.
"Exchange Offer" means the offer that may be made by the Company
pursuant to the Registration Rights Agreement to exchange Exchange Notes for
Initial Senior Notes.
"Exchange Offer Registration Statement" has the meaning set forth in the
Registration Rights Agreement.
"Fair Market Value" means, with respect to consideration received or to
be received pursuant to any transaction by any Person, the fair market value of
such consideration as determined in good faith by the Board of Directors of the
Company.
"Fair Value" means, with respect to any asset or Property, the price
which could be negotiated in an arm's-length free market transaction, for cash,
between a willing seller and a willing buyer, neither of whom is under undue
pressure or compulsion to complete the transaction.
"GAAP" means, at any date, United States generally accepted accounting
principles, consistently applied, as set forth in the opinions of the Accounting
Principles Board of the American Institute of Certified Public Accountants
("AICPA") and statements of the Financial Accounting Standards Board, or in such
other statements by such other entity as may be designated by the AICPA, that
are applicable to the circumstances as of the date of determination; provided,
however, that all calculations made for purposes of determining compliance with
the provisions set forth herein shall utilize GAAP in effect at the Issue Date.
"Global Note" means, individually and collectively, the Regulation S Global
Notes, the U.S. Global Notes and the Exchange Global Note.
"Guarantee" means any guarantee of the Senior Notes by any Guarantor in
accordance with the provisions described in Article 12.
"Guarantor" means the Initial Guarantors and each other future
Subsidiary of the Company that is required to guarantee the Company's
Obligations under the Senior Notes and this Indenture as described in Section
12.1 and any other Subsidiary of the Company that executes a supplemental
indenture in which such Subsidiary agrees to guarantee the Company's Obligations
under the Senior Notes and this Indenture.
"Holder" means a Person in whose name a Senior Note is registered on
the Registrar's books.
"incur" means, with respect to any Indebtedness or other obligation of
any Person, to create, issue, suffer to exist, incur (by conversion, exchange or
otherwise), assume, guarantee or otherwise become liable in respect of such
Indebtedness or other obligation or the recording, as required pursuant to GAAP
or otherwise, of any such Indebtedness or obligation on the balance sheet of
such Person (and "incurrence," "incurred," "incurrable" and "incurring" shall
have meanings correlative to the foregoing); provided that a change in GAAP that
results in an obligation of such Person that exists at such time becoming
Indebtedness shall not be deemed an incurrence of such Indebtedness.
Indebtedness otherwise incurred by a Person before it becomes a Subsidiary shall
be deemed to have been incurred at the time at which it becomes a Subsidiary. A
guarantee otherwise permitted by this Indenture to be incurred by the Company or
a Subsidiary of the Company of Indebtedness incurred in compliance with the
terms herein by the Company or a Subsidiary of the Company, as applicable, shall
not constitute a separate incurrence of Indebtedness.
"Indebtedness" as applied to any Person means, at any time, without
duplication, whether recourse is to all or a portion of the assets of such
Person, and whether or not contingent, (i) any obligation of such Person for
borrowed money; (ii) any obligation of such Person evidenced by bonds,
debentures, notes or other similar instruments, including, without limitation,
any such obligations incurred in connection with acquisition of Property, assets
or businesses, excluding accounts payable made in the ordinary course of
business which are not more than 90 days overdue or which are being contested in
good faith and by appropriate proceedings; (iii) any obligation of such Person
for all or any part of the purchase price of Property or assets or for the cost
of Property constructed or of improvements thereto (including any obligation
under or in connection with any letter of credit related thereto), other than
accounts payable incurred in respect of Property and services purchased in the
ordinary course of business which are no more than 90 days overdue or which are
being contested in good faith and by appropriate proceedings; (iv) any
obligation of such Person upon which interest charges are customarily paid
(other than accounts payable incurred in the ordinary course of business); (v)
any obligation of such Person under conditional sale or other title retention
agreements relating to purchased Property; (vi) any obligation of such Person
issued or assumed as the deferred purchase price of Property or assets (other
than accounts payable incurred in the ordinary course of business which are no
more than 90 days overdue or which are being contested in good faith and by
appropriate proceedings); (vii) any Capital Lease Obligation or Attributable
Indebtedness pursuant to any Sale and Lease-Back Transaction of such Person;
(viii) any obligation of any other Person secured by (or for which the obligee
thereof has an existing right, contingent or otherwise, to be secured by) any
Lien on Property owned or acquired, whether or not any obligation secured
thereby has been assumed, by such Person; (ix) any obligation of such Person in
respect of any letter of credit supporting any obligation of any other Person;
(x) the maximum fixed repurchase price of any Redeemable Stock of such Person
(or if such Person is a subsidiary, any Preferred Stock of such Person); (xi)
the notional amount of any Interest Swap Obligation or Currency Hedge Obligation
of such Person at the time of determination; and (xii) any obligation which is
in economic effect a guarantee, regardless of its characterization (other than
an endorsement in the ordinary course of business), with respect to any
Indebtedness of another Person, to the extent guaranteed. For purposes of the
preceding sentence, the maximum fixed repurchase price of any Redeemable Stock
or subsidiary Preferred Stock that does not have a fixed repurchase price shall
be calculated in accordance with the terms of such Redeemable Stock or
subsidiary Preferred Stock as if such Redeemable Stock or subsidiary Preferred
Stock were repurchased on any date on which Indebtedness shall be required to be
determined pursuant to this Indenture; provided that if such Redeemable Stock or
subsidiary Preferred Stock is not then permitted to be repurchased, the
repurchase price shall be the book value of such Redeemable Stock or subsidiary
Preferred Stock. The amount of Indebtedness of any Person at any date shall be
the outstanding balance at such date of all unconditional obligations as
described above and the maximum liability of any guarantees at such date;
provided, further, that for purposes of calculating the amount of any
non-interest bearing or other discount security, such Indebtedness shall be
deemed to be the principal amount thereof that would be shown on the balance
sheet of the issuer dated such date prepared in accordance with GAAP but that
such security shall be deemed to have been incurred only on the date of the
original issuance thereof.
"Indenture" means this Indenture, as amended or supplemented from time
to time by one or more indentures supplemental hereto entered into pursuant to
the applicable provisions hereof, including for all purposes of this Indenture
and any supplemental indenture the provisions of the Trust Indenture Act that
are deemed to be a part of and govern this Indenture and any supplemental
indenture .
"Indirect Participant" means a Person who holds an interest through a
Participant.
"Initial Guarantors" means all of the Company's subsidiaries except
Seabulk Offshore Chartering, Inc., Hvide Xxxx Holdings, L.L.C., Hvide Xxxx CAHT
1, L.L.C. and Hvide Xxxx Chartering 1, L.L.C.
"Initial Purchasers" means Xxxxxxxxx, Lufkin & Xxxxxxxx Securities
Corporation, Xxxxxx Xxxxxxx & Co. Incorporated, BancBoston Securities Inc. and
Citicorp Securities, Inc.
"Initial Senior Notes" has the meaning set forth in the Recitals to
this Indenture and more particularly means any of the Senior Notes authenticated
and delivered under this Indenture other than Exchange Notes.
"Institutional Accredited Investor" means an entity which is an
"accredited investor" as defined in Rule 501(a)(1), (2), (3) or (7) under the
Securities Act.
"Interest Swap Obligation" means, with respect to any Person, the
obligation of such Person pursuant to any interest rate swap agreement, interest
rate cap, collar or floor agreement or other similar agreement or arrangement
designed to protect against or manage such Person's or any of its subsidiaries'
exposure to fluctuations in interest rates.
"Investment" means, with respect to any Person, any direct, indirect or
contingent investment in another Person, whether by means of a share purchase,
capital contribution, loan, advance (other than advances to employees for moving
and travel expenses, drawing accounts and similar expenditures in the ordinary
course of business) or similar credit extension constituting Indebtedness of
such other Person, and any guarantee of Indebtedness of any other Person;
provided that the term "Investment" shall not include any transaction involving
the purchase or other acquisition (including by way of merger) of Property or
assets (including Capital Stock) by the Company or any Subsidiary in exchange
for Capital Stock (other than Redeemable Stock) of the Company. The amount of
any Person's Investment shall be the original cost of such Investment to such
Person, plus the cost of all additions thereto paid by such Person, and minus
the amount of any portion of such Investment repaid to such Person in cash as a
repayment of principal or a return of capital, as the case may be, but without
any other adjustments for increases or decreases in value, or write-ups,
writedowns, or write-offs with respect to such Investment. In determining the
amount of any Investment involving a transfer of any Property or assets other
than cash, such Property or assets shall be valued at its Fair Value at the time
of such transfer as determined in good faith by the board of directors (or
comparable body) of the Person making such transfer. The Company shall be deemed
to make an "Investment" in the amount of the Fair Value of the Property and
assets of a Subsidiary at the time such Subsidiary is designated an Unrestricted
Subsidiary.
"Issue Date" means the date on which Senior Notes are first
authenticated and delivered under this Indenture.
"Joint Venture" means any Person (other than a Subsidiary) designated
as such by a Board Resolution of the Company and as to which (i) the Company,
any Subsidiary or any Joint Venture owns less than 50% of the Capital Stock of
such Person; (ii) no more than ten unaffiliated Persons own of record any
Capital Stock of such Person; (iii) at all times, each such Person owns the same
proportion of each class of Capital Stock of such Person outstanding at such
time; (iv) no Indebtedness of such Person is or becomes outstanding other than
Non-Recourse Indebtedness; (v) there exist no consensual encumbrances or
restrictions on the ability of such Person to (x) pay, directly or indirectly,
dividends or make any other distributions in respect of its Capital Stock to the
holders of its Capital Stock or (y) pay any Indebtedness or other obligation
owed to the holders of its Capital Stock or (z) make any Investment in the
holders of its Capital Stock, in each case other than the types of consensual
encumbrances or restrictions that would be permitted by Section 4.14 if such
Person were a Subsidiary; and (vi) the business engaged in by such Person is a
Related Business.
"Legal Holiday" means a Saturday, a Sunday or a day on which federal
offices or banking institutions in The City of New York, in the city of the
Corporate Trust Office of the Trustee, or at a place of payment are authorized
by law, regulation or executive order to remain closed. If a payment date is a
Legal Holiday, payment may be made on the next succeeding day that is not a
Legal Holiday, and no interest shall accrue for the intervening period.
"Lien" means any mortgage, pledge, hypothecation, charge, assignment,
deposit arrangement, encumbrance, security interest, lien (statutory or other),
or preference, priority or other security or similar agreement or preferential
arrangement of any kind or nature whatsoever (including, without limitation, any
agreement to give or xxxxx x Xxxx or any lease, conditional sale or other title
retention agreement having substantially the same economic effect as any of the
foregoing).
"Maturity" means the date on which the principal of a Note becomes due
and payable as provided therein or herein, whether at the Stated Maturity or the
Change of Control Payment Date or purchase date established pursuant to the
terms herein for an Asset Sale Offer or by declaration of acceleration, call for
redemption or otherwise.
"Moody's" means Xxxxx'x Investors Service, Inc., or if Xxxxx'x
Investors Services, Inc. shall cease rating the specified debt securities and
such ratings business with respect thereto shall have been transferred to a
successor Person , such successor Person.
"Net Available Proceeds" means, as to any Asset Sale, the Cash Proceeds
therefrom, net of all legal and title expenses, commissions and other fees and
expenses incurred, and all Federal, state, foreign, recording and local taxes
payable, as a consequence of such Asset Sale, net of all payments made to any
Person other than the Company or a Subsidiary on any Indebtedness which is
secured by such assets, in accordance with the terms of any Lien upon or with
respect to such assets, or which must by its terms, or in order to obtain a
necessary consent to such Asset Sale, or by applicable law, be repaid out of the
proceeds from such Asset Sale and, as for any Asset Sale by a Subsidiary, net of
the equity interest in such Cash Proceeds of any holder of Capital Stock of such
Subsidiary (other than the Company, any other Subsidiary or any Affiliate of the
Company or any such other Subsidiary).
"Non-Recourse Indebtedness" means Indebtedness or that portion of
Indebtedness of an Unrestricted Subsidiary as to which (a) neither the Company
nor any other Subsidiary (other than an Unrestricted Subsidiary) (i) provides
credit support including any undertaking, agreement or instrument which would
constitute Indebtedness or (ii) is directly or indirectly liable for such
Indebtedness and (b) no default with respect to such Indebtedness (including any
rights which the holders thereof may have to take enforcement action against an
Unrestricted Subsidiary) would permit (upon notice, lapse of time or both) any
holder of any other Indebtedness of the Company or its other Subsidiaries to
declare a default on such other Indebtedness or cause the payment thereof to be
accelerated or payable prior to its stated maturity.
"Obligations" means, with respect to any Indebtedness, any obligation
thereunder, including, without limitation, principal, premium and interest
(including post petition interest thereon), penalties, fees, costs, expenses,
indemnifications, reimbursements, damages and other liabilities.
"Obligors" means the Company and the Guarantors, collectively; "Obligor"
means the Company or any Guarantor.
"Offering Memorandum" means the Offering Memorandum, dated February 13,
1998, relating to the Company's offering and placement of the Initial Senior
Notes.
"Offering" means the Offering of the Initial Senior Notes by the Company.
"Officer" means, with respect to any Person, the Chairman of the Board,
a Vice Chairman of the Board, the Chief Executive Officer, the President, the
Chief Financial Officer, the Chief Accounting Officer, the Treasurer, any
Assistant Treasurer, the Controller, the Secretary, an Assistant Secretary or
any Vice President of such Person.
"Officers' Certificate" means a certificate signed by the Chairman of
the Board, a Vice Chairman of the Board, the President, the Chief Executive
Officer, a Vice President, and by the Chief Financial Officer, the Chief
Accounting Officer, the Treasurer, an Assistant Treasurer, the Secretary or an
Assistant Secretary of the Company or a Subsidiary and delivered to the Trustee,
which shall comply with this Indenture.
"Opinion of Counsel" means an opinion from legal counsel who is
reasonably acceptable to the Trustee, that meets the requirements of Sections
11.4 and 11.5 hereof. The counsel may be an employee of or counsel to the
Company, any Subsidiary of the Company or the Trustee.
"Participant" means, with respect to DTC, Euroclear or Cedel, a Person
who has an account with DTC, Euroclear or Cedel, respectively (and, with respect
to DTC, shall include Euroclear and Cedel).
"Permitted Holders" means J. Xxxx Xxxxx and any person related to him
by kinship or marriage, trusts or similar arrangements established solely on the
behalf of one or more of them, and partnerships and other entities that are
controlled by them.
"Permitted Indebtedness" means (a) Indebtedness of the Company under
the Senior Notes; (b) Indebtedness (and any guarantee thereof) under one or more
credit or revolving credit facilities with a bank or syndicate of banks or
financial institutions, including the Credit Facility, as such may be amended,
modified, revised, extended, replaced, or refunded from time to time, in an
aggregate principal amount at any one time outstanding not to exceed $175.0
million, less any amounts derived from Asset Sales and applied to the required
permanent reduction of Senior Debt (and a permanent reduction of the related
commitment to lend or amount available to be reborrowed in the case of a
revolving credit facility) under such credit facilities as contemplated by
Section 4.15; (c) Indebtedness of the Company or any Subsidiary under Interest
Swap Obligations, provided that (i) such Interest Swap Obligations are related
to payment obligations on Indebtedness otherwise permitted under the covenants
described in Section 4.12 and Section 4.13 and (ii) the notional principal
amount of such Interest Swap Obligations does not exceed the principal amount of
the Indebtedness to which such Interest Swap Obligations relate; (d)
Indebtedness of the Company or any Subsidiary under Currency Hedge Obligations,
provided that (i) such Currency Hedge Obligations are related to payment
obligations on Indebtedness otherwise permitted under the covenants described in
Section 4.12 and Section 4.13 or to the foreign currency cash flows reasonably
expected to be generated by the Company and the Subsidiaries and (ii) the
notional principal amount of such Currency Hedge Obligations does not exceed the
principal amount of the Indebtedness and the amount of the foreign currency cash
flows to which such Currency Hedge Obligations relate; (e) Indebtedness of the
Company or any Subsidiary outstanding on the Issue Date including Indebtedness
under the Debentures, the Debenture Indenture and the Trust Preferred Securities
Guarantee; (f) the Guarantees of the Senior Notes (and any assumption of the
Obligations guaranteed thereby); (g) Indebtedness of the Company or any
Subsidiary in respect of bid performance bonds, surety bonds, appeal bonds and
letters of credit or similar arrangements issued for the account of the Company
or any Subsidiary, in each case in the ordinary course of business and other
than for an obligation for money borrowed; (h) Indebtedness of the Company to a
Subsidiary and Indebtedness of a Subsidiary to the Company or another
Subsidiary; provided that upon any subsequent event which results in any such
Subsidiary ceasing to be a Subsidiary or any other subsequent transfer of any
such Indebtedness (except to the Company or a Subsidiary), such Indebtedness
shall be deemed, in each case, to be incurred and shall be treated as an
incurrence for purposes of Section 4.12 and Section 4.13 at the time the
Subsidiary in question ceased to be a Subsidiary or on which such subsequent
transfer occurred; (i) Indebtedness of the Company in connection with a purchase
of the Senior Notes pursuant to a Change of Control Offer, provided that the
aggregate principal amount of such Indebtedness does not exceed 101% of the
aggregate principal amount at Stated Maturity of the Senior Notes purchased
pursuant to such Change of Control Offer; provided, further, that such
Indebtedness (A) has an Average Life equal to or greater than the remaining
Average Life of the Senior Notes and (B) does not mature prior to one year
following the Stated Maturity of the Senior Notes; (j) Permitted Refinancing
Indebtedness; and (k) Permitted Subsidiary Refinancing Indebtedness. So as to
avoid duplication in determining the amount of Permitted Indebtedness under any
clause of this definition, guarantees permitted to be incurred pursuant to this
Indenture of, or obligations permitted to be incurred pursuant to this Indenture
in respect of letters of credit supporting, Indebtedness otherwise included in
the determination of such amount shall not also be included.
"Permitted Investments" means (a) certificates of deposit, bankers
acceptances, time deposits, Eurocurrency deposits and similar types of
Investments routinely offered by commercial banks with final maturities of one
year or less issued by commercial banks organized in the United States having
capital and surplus in excess of $500,000,000, or foreign branches thereof, or
any commercial bank of any other country that is a member of the Organization
for Economic Cooperation and Development ("OECD") and has total assets in excess
of $500,000,000; (b) commercial paper issued by any corporation, if such
commercial paper has credit ratings of at least "A-1" or its equivalent by S&P
or at least "P-1" or its equivalent by Moody's; (c) U.S. Government Obligations
with a maturity of four years or less; (d) repurchase obligations for
instruments of the type described in clause (c) with any bank meeting the
qualifications specified in clause (a) above; (e) shares of money market mutual
or similar funds having assets in excess of $100,000,000; (f) payroll advances
in the ordinary course of business and other advances and loans to officers and
employees of the Company or any Subsidiary, so long as the aggregate principal
amount of such advances and loans does not exceed $500,000 at any one time
outstanding; (h) Investments represented by that portion of the proceeds from
Asset Sales that is not required to be Cash Proceeds by the covenant described
in Section 4.15; (i) Investments made by the Company in Subsidiaries (or any
Person that will be a Subsidiary as a result of such Investment) or by a
Subsidiary in the Company or in one or more Subsidiaries (or any Person that
will be a Subsidiary as a result of such Investment); (j) Investments in stock,
obligations or securities received in settlement of debts owing to the Company
or any Subsidiary as a result of bankruptcy or insolvency proceedings or upon
the foreclosure, perfection or enforcement of any Lien in favor of the Company
or any Subsidiary, in each case as to debt owing to the Company or any
Subsidiary that arose in the ordinary course of business of the Company or any
such Subsidiary; (k) foreign bank deposits and cash equivalents in jurisdictions
where the Company or its Subsidiaries are then actively conducting business
provided that (i) all such deposits are required to be made in the ordinary
course of business, (ii) such deposits do not exceed $15,000,000 in the
aggregate and (iii) the funds so deposited do not remain in such bank for more
than 30 days; (l) Interest Swap Obligations with respect to any floating rate
Indebtedness that is permitted by the terms of this Indenture to be outstanding;
(m) Currency Hedge Obligations, provided that such Currency Hedge Obligations
constitute Permitted Indebtedness permitted by clause (d) of the definition
thereof; (n) Investments in prepaid expenses, negotiable instruments held for
collection and lease, utility, worker's compensation and performance and other
similar deposits in the ordinary course of business; and (o) Investments
pursuant to any agreement or obligation of the Company or any Subsidiary in
effect on the Issue Date and listed on a Schedule 1.1(a) attached hereto.
"Permitted Liens" means (a) Liens in existence on the Issue Date; (b)
Liens created for the benefit of the Senior Notes and/or the Guarantees; (c)
Liens on Property of a Person existing at the time such Person is merged or
consolidated with or into the Company or a Subsidiary (and not incurred as a
result of, or in anticipation of, such transaction), provided that any such Lien
relates solely to such Property; (d) Liens on Property existing at the time of
the acquisition thereof (and not incurred as a result of, or in anticipation of
such transaction), provided that any such Lien relates solely to such Property;
(e) Liens incurred or pledges and deposits made in connection with worker's
compensation, unemployment insurance and other social security benefits,
statutory obligations, bid, surety or appeal bonds, performance bonds or other
obligations of a like nature incurred in the ordinary course of business; (f)
Liens imposed by law or arising by operation of law, including, without
limitation, landlords', mechanics', carriers', warehousemen's, materialmen's,
suppliers' and vendors' Liens and Liens for master's and crew's wages and other
similar maritime Liens, and incurred in the ordinary course of business for sums
not delinquent or being contested in good faith, if such reserves or other
appropriate provisions, if any, as shall be required by GAAP shall have been
made with respect thereof; (g) zoning restrictions, easements, licenses,
covenants, reservations, restrictions on the use of real property and defects,
irregularities and deficiencies in title to real property that do not,
individually or in the aggregate, materially affect the ability of the Company
or any Subsidiary to conduct its business presently conducted; (h) Liens for
taxes or assessments or other governmental charges or levies not yet due and
payable, or the validity of which is being contested by the Company or a
Subsidiary in good faith and by appropriate proceedings upon stay of execution
or the enforcement thereof and for which adequate reserves in accordance with
GAAP or other appropriate provision has been made; (i) Liens to secure
Indebtedness incurred for the purpose of financing all or a part of the purchase
price or construction cost of Property or assets acquired or constructed after
the Issue Date, provided that (1) the principal amount of Indebtedness secured
by such Liens shall not exceed 100% of the lesser of cost or Fair Market Value
of the Property or assets so acquired or constructed plus transaction costs
related thereto, (2) such Liens shall not encumber any other Property or assets
of the Company or any Subsidiary (other than the proceeds thereof and accessions
and upgrades thereto) and (3) such Liens shall attach to such Property or assets
within 120 days of the date of the completion of the construction or acquisition
of such Property or assets; (j) Liens securing Capital Lease Obligations,
provided, that such Liens secure Capital Lease Obligations which, when combined
with (1) the outstanding secured Indebtedness of the Company and its
Subsidiaries (other than Indebtedness secured by Liens described under clauses
(b) and (i) hereof) and (2) the aggregate principal amount of all other Capital
Lease Obligations of the Company and Subsidiaries, does not exceed $5,000,000 at
any one time outstanding; (k) Liens to secure any extension, renewal,
refinancing or refunding (or successive extensions, renewals, refinancings or
refundings), in whole or in part, of any Indebtedness secured by Liens referred
to in the foregoing clauses (a), (c) and (d), provided, that such Lien does not
extend to any other Property or assets of the Company or any Subsidiary and the
principal amount of the Indebtedness secured by such Lien is not increased; (l)
any charter or maritime lease; (m) leases or subleases of real property to other
Persons; (n) judgment liens not giving rise to an Event of Default so long as
any appropriate legal proceedings which may have been initiated for the review
of such judgment shall not have been finally terminated or the period within
which such proceeding may be initiated shall not have expired; (o) rights of
off-set of banks and other Persons; (p) liens in favor of the Company; and (q)
Liens securing Indebtedness described under clause (b) of the definition of
Permitted Indebtedness and the Term Loan.
"Permitted Refinancing Indebtedness" means Indebtedness of the Company,
incurred in exchange for, or the net proceeds of which are used to renew,
extend, refinance, refund or repurchase, outstanding Indebtedness of the Company
which outstanding Indebtedness was incurred in accordance with, or is otherwise
permitted by, the terms of clauses (a) and (e) of the definition of "Permitted
Indebtedness", provided that (i) if the Indebtedness being renewed, extended,
refinanced, refunded or repurchased is pari passu with or subordinated in right
of payment (without regard to its being secured) to the Senior Notes, then such
new Indebtedness is pari passu with or subordinated in right of payment (without
regard to its being secured) to, as the case may be, the Senior Notes at least
to the same extent as the Indebtedness being renewed, extended, refinanced,
refunded or repurchased, (ii) such new Indebtedness is scheduled to mature later
than the Indebtedness being renewed, extended, refinanced, refunded or
repurchased, (iii) such new Indebtedness has an Average Life at the time such
Indebtedness is incurred that is greater than the Average Life of the
Indebtedness being renewed, extended, refinanced, refunded or repurchased, and
(iv) such new Indebtedness is in aggregate principal amount (or, if such
Indebtedness is issued at a price less than the principal amount thereof, the
aggregate amount of gross proceeds therefrom is) not in excess of the aggregate
principal amount then outstanding of the Indebtedness being renewed, extended,
refinanced, refunded or repurchased (or if the Indebtedness being renewed,
extended, refinanced, refunded or repurchased was issued at a price less than
the principal amount thereof, then not in excess of the amount of liability in
respect thereof determined in accordance with GAAP) plus the amount of
reasonable fees, expenses, and premium, if any, incurred by the Company or such
Subsidiary in connection therewith.
"Permitted Subsidiary Refinancing Indebtedness" means Indebtedness of
any Subsidiary, incurred in exchange for, or the net proceeds of which are used
to renew, extend, refinance, refund or repurchase, outstanding Indebtedness of
such Subsidiary which outstanding Indebtedness was incurred in accordance with,
or is otherwise permitted by, the terms of clauses (e) and (f) of the definition
of Permitted Indebtedness, provided that (i) if the Indebtedness being renewed,
extended, refinanced, refunded or repurchased is pari passu with or subordinated
in right of payment (without regard to its being secured) to the Guarantee of
such Subsidiary, then such new Indebtedness is pari passu with or subordinated
in right of payment (without regard to its being secured) to, as the case may
be, the Guarantee of such Subsidiary at least to the same extent as the
Indebtedness being renewed, extended, refinanced, refunded or repurchased, (ii)
such new Indebtedness is scheduled to mature later than the Indebtedness being
renewed, extended, refinanced, refunded or repurchased, (iii) such new
Indebtedness has an Average Life at the time such Indebtedness is incurred that
is greater than the Average Life of the Indebtedness being renewed, extended,
refinanced, refunded or repurchased, and (iv) such new Indebtedness is in an
aggregate principal amount (or, if such Indebtedness is issued at a price less
than the principal amount thereof, the aggregate amount of gross proceeds
therefrom is) not in excess of the aggregate principal amount then outstanding
of the Indebtedness being renewed, extended, refinanced, refunded or repurchased
(or if the Indebtedness being renewed, extended, refinanced, refunded or
repurchased was issued at a price less than the principal amount thereof, then
not in excess of the amount of liability in respect thereof determined in
accordance with GAAP) plus the amount of reasonable fees, expenses, and premium,
if any, incurred by the Company or such Subsidiary in connection therewith.
"Person" means any individual, corporation, partnership, joint venture,
incorporated or unincorporated association, joint stock company, trust,
unincorporated organization or government or other agency or political
subdivision thereof or other entity of any kind.
"Preferred Stock" of any Person means Capital Stock of such Person of
any class or classes (however designated) that ranks prior, as to the payment of
dividends and/or as to the distribution of assets upon any voluntary or
involuntary liquidation, dissolution or winding up of such Person, to shares of
Capital Stock of at least one other class of such Person.
"Property" means, with respect to any Person, any interest of such
Person in any kind of property or asset, whether real, personal or mixed, or
tangible or intangible, excluding Capital Stock in any other Person.
"Public Equity Offering" means an offering of Capital Stock (other than
Redeemable Stock) of the Company for cash pursuant to an effective registration
statement (other than on a Form S-4 or a Form S-8 or any other form relating to
securities issuable under any employee benefit plan of the Company) under the
Securities Act resulting in aggregate gross proceeds to the Company of at least
$25,000,000.
"Qualified Institutional Buyer" or "QIB" shall have the meaning
specified in Rule 144A under the Securities Act.
"Record Date" means, for the interest payment on any Interest Payment
Date, the date specified in Section 2.12 hereof.
"Redeemable Stock" means, with respect to any Person, any equity
security that by its terms or otherwise is required to be redeemed, or is
redeemable at the option of the holder thereof, at any time prior to one year
following the Stated Maturity of the Senior Notes or is exchangeable into
Indebtedness of such Person or any of its subsidiaries.
"Redemption Date" means, when used with respect to any Senior Note or
part thereof to be redeemed hereunder, the date fixed for redemption of such
Senior Notes pursuant to the terms of the Senior Notes and this Indenture.
"Redemption Price" means, when used with respect to any Senior Note or
part thereof to be redeemed hereunder, the price fixed for redemption of such
Senior Note pursuant to the terms of the Senior Notes and this Indenture, plus
accrued and unpaid interest, if any, and Special Interest, if any, thereon, to
the Redemption Date.
"Registration Rights Agreement" means the Registration Rights
Agreement, dated as of the date of this Indenture, by and among the Company and
Initial Purchasers, as such agreement may be amended, modified or supplemented
from time to time.
"Regulation S" means Regulation S under the Securities Act (including
any successor regulation thereto), as it may be amended from time to time.
"Regulation S Global Note" means a permanent global senior note that
contains the paragraph referred to in footnote 1 and the additional schedule
referred to in footnote 4 to the form of the Senior Note attached hereto as
Exhibit A, and that is deposited with the Senior Note Custodian and registered
in the name of the Depository or its nominee, representing the Initial Senior
Notes sold in reliance on Regulation S.
"Related Business" means the offshore energy services and marine
transportation services business and activities incidental thereto and any
business related or ancillary thereto.
"Replacement Asset" means a Property or asset that, as determined by
the Board of Directors of the Company as evidenced by a Board Resolution, is
used or is useful in a Related Business.
"Restricted Investment" means any Investment in any Person, including
an Unrestricted Subsidiary or the designation of a Subsidiary as an Unrestricted
Subsidiary, other than a Permitted Investment.
"Restricted Payment" means to (i) declare or pay any dividend on, or
make any distribution in respect of, or purchase, redeem, retire or otherwise
acquire for value, any Capital Stock of the Company or any Affiliate of the
Company, or warrants, rights or options to acquire such Capital Stock, other
than (x) dividends payable solely in the Capital Stock (other than Redeemable
Stock) of the Company or such Affiliate, as the case may be, or in warrants,
rights or options to acquire such Capital Stock and (y) dividends or
distributions by a Subsidiary to the Company or to a Wholly Owned Subsidiary;
(ii) make any principal payment on, or redeem, repurchase, defease (including an
in-substance or legal defeasance) or otherwise acquire or retire for value
(including pursuant to mandatory repurchase covenants), prior to any scheduled
principal payment, scheduled sinking fund payment or other stated maturity,
Indebtedness of the Company or any Subsidiary which is subordinated (whether
pursuant to its terms or by operation of law) in right of payment to the Senior
Notes or the Guarantees, as applicable; or (iii) make any Restricted Investment
in any Person.
"Rule 144A" means Rule 144A under the Securities Act (including any
successor regulation thereto), as it may be amended from time to time.
"S&P" means Standard & Poor's Ratings Services, a division of
XxXxxx-Xxxx, Inc., or if Standard & Poor's Ratings Services shall cease rating
the specified debt securities and such ratings business with respect thereto
shall have been transferred to a successor Person, such successor Person.
"Sale and Lease-Back Transaction" means, with respect to any Person,
any direct or indirect arrangement pursuant to which Property is sold or
transferred by such Person or a subsidiary of such Person and is thereafter
leased back from the purchaser or transferee thereof by such Person or one of
its subsidiaries.
"Securities Act" means the U.S. Securities Act of 1933, as amended.
"Senior Debt" means any Indebtedness incurred by the Company, unless
the instrument under which such Indebtedness is incurred expressly provides that
it is subordinated in right of payment to the Senior Notes, provided that Senior
Debt will not include (a) any liability for federal, state, local or other taxes
owed or owing, (b) any Indebtedness owing to any Subsidiaries of the Company,
(c) any trade payables, (d) the Debentures, the Debenture Indenture or the Trust
Preferred Securities Guarantee, or (e) any Indebtedness that is incurred in
violation of this Indenture.
"Senior Note Custodian" means the Trustee, as custodian for the
Depository with respect to the Senior Notes in global form, or any successor
entity thereto.
"Senior Notes" has the meaning set forth in the Recitals of this
Indenture and more particularly means any of the Senior Notes authenticated and
delivered under this Indenture.
"Shelf Registration Statement" means the Shelf Registration Statement
as defined in the Registration Rights Agreement.
"Significant Subsidiary" means any Guarantor or any other Subsidiary
that is a "significant subsidiary" as defined in Rule 1-02(w) of Regulation S-X
under the Securities Act and the Exchange Act.
"Special Record Date" means a date fixed by the Trustee pursuant to Section
2.12 hereof for the payment of Defaulted Interest.
"Stated Maturity" when used with respect to a Senior Note or any
installment of interest thereon, means the date specified in such Senior Note as
the fixed date on which the principal of such Senior Note or such installment of
interest is due and payable.
"Subordinated Indebtedness" means any Indebtedness of the Company or
any Guarantor that is subordinated in right of payment to the Senior Notes or
the Guarantees, as the case may be, and does not mature prior to one year
following the Stated Maturity of the Senior Notes.
"Subsidiary" means a subsidiary of the Company other than an
Unrestricted Subsidiary or Hvide Capital Trust, a statutory business trust
created under the laws of the State of Delaware.
"subsidiary" means, with respect to any Person, (i) any corporation
more than 50% of the outstanding Voting Stock of which is owned, directly or
indirectly, by such Person, or by one or more other subsidiaries of such Person,
or by such Person and one or more other subsidiaries of such Person, (ii) any
general partnership, joint venture or similar entity, more than 50% of the
outstanding partnership or similar interest of which is owned, directly or
indirectly, by such Person, or by one or more other subsidiaries of such Person,
or by such Person and one or more other subsidiaries of such Person and (iii)
any limited partnership of which such Person or any subsidiary of such Person is
a general partner.
"Term Loan" means a staged advance term loan of up to a maximum
aggregate principal amount of $300,000,000 pursuant to a Term Loan Agreement
dated November 26, 1997 among the Company, the lenders party thereto, and
BankBoston, N.A. as Agent, as such may be amended, supplemented, modified,
revised or extended from time to time.
"Transfer Restricted Senior Notes" means Senior Notes that bear or are
required to bear the Private Placement Legend.
"Transaction Date" has the meaning specified within the definition of
Consolidated Interest Coverage Ratio.
"Trust Indenture Act" or "TIA" means the U.S. Trust Indenture Act of
1939 (15 U.S.C. xx.xx. 77aaa-77bbbb) as in effect on the date on which this
Indenture is qualified under the Trust Indenture Act except as required by
Section 9.3 hereof, provided that if the Trust Indenture Act of 1939 is amended
after such date, "Trust Indenture Act" or "TIA" means, if so required by such
amendment, the Trust Indenture Act of 1939, as so amended.
"Trust Preferred Securities" means the 6 1/2% Trust Convertible Preferred
Securities of Hvide Capital Trust.
"Trust Preferred Securities Guarantee" means that certain Guarantee
dated as of June 27, 1997 executed and delivered by the Company to the guarantee
trustee named therein for the benefit of the holders of the Trust Preferred
Securities whereby the Company guarantees on a subordinated basis certain
payments by Hvide Capital Trust to the extent that Hvide Capital Trust has funds
on hand available therefor.
"Trustee" means the party named as such above until a successor
replaces it in accordance with the applicable provisions of this Indenture and
thereafter means the successor serving hereunder.
"U.S. Global Note" means a permanent Global Note that contains the
paragraph referred to in footnote 1 and the additional schedule referred to in
footnote 4 to the form of the Senior Note attached hereto as Exhibit A, and that
is deposited with the Senior Note Custodian and registered in the name of the
Depositary or its nominee, representing Senior Notes sold in reliance on Rule
144A or in reliance on another exemption from the registration requirements of
the Securities Act.
"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; (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
clauses (i) or (ii) above, are not callable or redeemable at the option of the
issuers thereof; or (iii) depository receipts issued by a bank or trust company
as custodian with respect to any such U.S. Government Obligations or a specific
payment of interest on or principal of any such U.S. Government Obligation held
by such custodian for the account of the holder of a Depository receipt,
provided that (except as required by law) such custodian is not authorized to
make any deduction from the amount payable to the holder of such Depository
receipt from any amount received by the custodian in respect of the U.S.
Government Obligation evidenced by such Depository receipt.
"U.S. Person" means (i) any individual resident in the United States,
(ii) any partnership or corporation organized or incorporated under the laws of
the United States, (iii) any estate of which an executor or administrator is a
U.S. Person (other than an estate governed by foreign law and of which at least
one executor or administrator is a non-U.S. Person who has sole or shared
investment discretion with respects to its assets), (iv) any trust of which any
trustee is a U.S. Person (other than a trust of which at least one trustee is an
non-U.S. Person who has sole or shared investment discretion with respect to its
assets and no beneficiary of the trust (and no settler, if the trust is
revocable) is a U.S. Person), (v) any agency or branch of a foreign entity
located in the United States, (vi) any non-discretionary or similar account
(other than an estate or trust) held by a dealer or other fiduciary for the
benefit or account of a U.S. person, (vii) any discretionary or similar account
(other than an estate or trust) held by a dealer or other fiduciary organized,
incorporated or (if an individual) resident in the United States (other than
such an account held for the benefit or account of a non-U.S. Person), (viii)
any partnership or corporation organized or incorporated under the laws of a
foreign jurisdiction and formed by a U.S. Person principally for the purpose of
investing in securities not registered under the Securities Act (unless it is
organized or incorporated and owned, by "accredited investors" within the
meaning of Rule 501(a) under the Securities Act who are not natural persons,
estates or trusts); provided, however, that the term "U.S. Person" shall not
include (A) a branch or agency of a U.S. Person that is located and operating
outside the United States for valid business purposes as a locally regulated
branch or agency engaged in the banking or insurance business, (B) any employee
benefit plan established and administered in accordance with the law, customary
practices and documentation of a foreign country and (C) the international
organizations set forth in Section 902(o)(7) of Regulation S and any other
similar international organizations, and their agencies, affiliates and pension
plans.
"Unrestricted Subsidiary" means any subsidiary of the Company that the
Company has classified as an Unrestricted Subsidiary, and that has not been
reclassified as a Subsidiary, pursuant to the terms herein.
"Voting Stock" means with respect to any Person, securities of any
class or classes of Capital Stock in such Person entitling the holder thereof
(whether at all times or at the times that such class of Capital Stock has
voting power by reason of the happening of any contingency) to vote in the
election of members of the board of directors or comparable body of such Person.
"Wholly Owned Subsidiary" means any Subsidiary to the extent (i) all of
the Capital Stock or other ownership interests in such Subsidiary, other than
any directors' qualifying shares mandated by applicable law, is owned directly
or indirectly by the Company or (ii) such Subsidiary is organized in a foreign
jurisdiction and is required by the applicable laws and regulations of such
foreign jurisdiction to be partially owned by the government of such foreign
jurisdiction or individual or corporate citizens of such foreign jurisdiction in
order for such Subsidiary to transact business in such foreign jurisdiction,
provided that the Company, directly or indirectly, owns the remaining Capital
Stock or ownership interest in such Subsidiary and, by contract or otherwise,
controls the management and business of such Subsidiary and derives the economic
benefits of ownership of such Subsidiary to substantially the same extent as if
such Subsidiary were a wholly owned Subsidiary.
SECTION 1.2 Other Definitions .
Defined
Term in Section
"Act" 11.6
"Asset Sale Offer" 4.15
"Asset Sale Offer Amount" 4.15
"Asset Sale Offer Period" 4.15
"Asset Sale Offer Purchase Price" 4.15
"Asset Sale Purchase Date" 4.9
"Change of Control Offer" 4.9
"Change of Control Purchase Price" 4.9
"Change of Control Offer Period" 4.6
"Change of Control Payment Date" 4.9
"Covenant Defeasance" 9.3
"DTC" 2.3
"Defaulted Interest" 2.12
"Defeasance" 9.2
"Event of Default" 6.1
"Excess Proceeds" 4.15
"40-day restricted period" 2.1
"Guaranteed Indebtedness" 12.8
"Interest Payment Date" 2.12
"Paying Agent" 2.3
"Private Placement Legend" 2.6
"Process Agent" 11.10
"Registrar" 2.3
"Required Filing Dates" 4.6
"Securities Register" 2.3
"Surviving Entity" 5.1
.ECTION 1.3 Incorporation By Reference of Trust Indenture Act
Whenever this Indenture refers to a provision of the Trust
Indenture Act, the provision is incorporated by reference in and made a part of
this Indenture.
The following Trust Indenture Act terms used in this Indenture
have the following meanings:
"indenture securities" means the Senior Notes;
"indenture security holder" means a Holder of a Senior Note;
"indenture to be qualified" means this Indenture;
"indenture trustee" or "institutional trustee" means the
Trustee;
"obligor" on the Senior Notes means the Company or any other
obligor on the Senior Notes.
All other terms used in this Indenture that are defined by the
Trust Indenture Act, defined by the Trust Indenture Act reference to another
statute or defined by Commission rule under the Trust Indenture Act have the
meanings so assigned to them.
SECTION 1.4 Rules of Construction.
Unless the context otherwise requires:
(1) 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;
(2) a term has the meaning assigned to it;
(3) an accounting term not otherwise defined has the
meaning assigned to it in accordance with GAAP;
(4) "or" is not exclusive;
(5) words in the singular include the plural, and in the
plural include the singular;
(6) provisions apply to successive events and transactions;
(7) references to sections of or rules under the Securities
Act shall be deemed to include substitute, replacement of successor sections or
rules adopted by the Commission from time to time;
(8) the principal amount of any non-interest bearing or other
discount security at any date shall be the principal amount thereof that would
be shown on a balance sheet of the issuer dated such date prepared in accordance
with generally accepted accounting principles;
(9) when used with respect to the Senior Notes, the term
"principal amount" shall mean the principal amount thereof at Maturity;
(10) unless otherwise expressly provided herein, the principal
amount of any preferred stock shall be greater of (i) the maximum liquidation
value of such preferred stock or (ii) the maximum mandatory redemption or
mandatory repurchase price with respect to such preferred stock; and
(11) all references to amounts of money or $ mean U.S. Dollars.
ARTICLE 2
THE SENIOR NOTES
SECTION 2.1 Form and Dating.
(a) General. The Senior Notes, together with the Trustee's
certificate of authentication and the Guarantors' notation of Guarantees, shall
be substantially in the form set forth in Exhibit A hereto. The Senior Notes may
have notations, legends or endorsements required by law, stock exchange rule or
usage. Each Senior Note shall be dated the date of its authentication. The
Senior Notes shall be in denominations of $1,000 and integral multiples thereof.
The Initial Senior Notes and the Exchange Notes will be the same except that the
Private Placement Legend and paragraph 18 will be omitted from the Exchange
Notes.
The terms and provisions contained in the Senior Notes shall
constitute, and are hereby expressly made, a part of this Indenture and the
Company, the Guarantors and the Trustee, by their execution and delivery of this
Indenture, expressly agree to such terms and provisions and to be bound thereby.
(b) Initial Senior Notes. Initial Senior Notes, with the
notations of the Guarantees endorsed thereon, shall be issued in the form of one
or more permanent Global Notes in definitive fully registered form without
coupons. Senior Notes offered and sold to QIBs in reliance on Rule 144A, shall
be issued initially in the form of the U.S. Global Notes, which shall be
deposited on behalf of the purchasers of the Senior Notes represented thereby
with the Senior Note Custodian, and registered in the name of the Depository or
a nominee of the Depository, duly executed by the Company and authenticated by
the Trustee as hereinafter provided. The aggregate principal amount of the U.S.
Global Notes may from time to time be increased or decreased by adjustments made
on the records of the Trustee and the Depository or its nominee as hereinafter
provided. Initial Senior Notes offered and sold in reliance on Regulation S
shall be issued initially in the form of the Regulation S Global Note, which
shall be deposited on behalf of the purchasers of the Senior Notes represented
thereby with the Senior Note Custodian, and registered in the name of the
Depository or the nominee of the Depository for the accounts of designated
agents holding on behalf of Euroclear or Cedel, duly executed by the Company and
authenticated by the Trustee as hereinafter provided. During the "40-day
restricted period" (as defined in Regulation S) beneficial interests in the
Regulation S Global Note shall be held only through Euroclear or Cedel, and,
pursuant to the Depository's procedures, Indirect Participants that hold a
beneficial interest in the Regulation S Global Note shall not be able to
transfer such interest to a person that takes delivery thereof in the form of an
interest in the U.S. Global Notes. Following the termination of the 40-day
restricted period, beneficial interests in the Regulation S Global Notes shall
be exchanged for beneficial interests in U.S. Global Notes and beneficial
interests in the U.S. Global Notes shall be exchanged for beneficial interests
in the Regulation S Global Notes, pursuant to the Applicable Procedures. The
aggregate principal amount of the Regulation S Global Notes may from time to
time be increased or decreased by adjustments made on the records of the Trustee
and the Depository or its nominee, as the case may be, in connection with
transfers of interest as hereinafter provided.
Each Global Note shall represent such of the outstanding
Senior Notes as shall be specified therein and each shall provide that it shall
represent the aggregate amount of outstanding Senior Notes from time to time
endorsed on Schedule A thereto and that the aggregate amount of outstanding
Senior Notes represented thereby may from time to time be reduced or increased,
as appropriate, to reflect exchanges, redemptions and transfers of interests.
Any endorsement of Schedule A of a Global Note to reflect the amount of any
increase or decrease in the amount of outstanding Senior Notes represented
thereby shall be made by the Trustee or the Senior Note Custodian, at the
direction of the Trustee, in accordance with instructions given by the Holder
thereof as required by Section 2.6 hereof.
The provisions of the "Operating Procedures of the Euroclear
System" and "Terms and Conditions Governing Use of Euroclear" and the
"Management Regulations" and "Instructions to Participants" of Cedel shall be
applicable to interests in the Regulation S Global Notes that are held by
Participants through Euroclear or Cedel. The Trustee shall have no obligation to
notify Holders of any such procedures or to monitor or enforce compliance with
the same.
Except as set forth in Section 2.6 hereof, the Global Notes
may be transferred, in whole and not in part, only to another nominee of the
Depository or to a successor of the Depository or its nominee.
(c) Book-Entry Provisions. This Section 2.1(c) shall apply
only to Global Notes deposited with or on behalf of the Depository.
The Company shall execute and the Trustee shall, in accordance
with this Section 2.1(c), authenticate and deliver the Global Notes that (i)
shall be registered in the name of the Depository or the nominee of the
Depository and (ii) shall be delivered by the Trustee to the Depository or
pursuant to the Depository's instructions or held by the Senior Note Custodian.
Participants shall have no rights either under this Indenture
with respect to any Global Note held on their behalf by the Depository or by the
Senior Note Custodian as custodian for the Depository or under such Global Note,
and the Depository may be treated by the Company, the Trustee and any agent of
the Company or the Trustee as the absolute owner of such Global Note 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 Depository or impair, as between the Depository and its Participants, the
operation of customary practices of such Depository governing the exercise of
the rights of an owner of a beneficial interest in any Global Note.
(d) Certificated Senior Notes. Senior Notes issued in
certificated form shall be substantially in the form of Exhibit A attached
hereto (but without including the text referred to in footnotes 1, 3 and 4
thereto) and shall be printed, typewritten, lithographed or engraved or produced
by any combination of these methods or may be produced by any other method
permitted by the rules of any securities exchange on which the Senior Notes may
be listed, as evidenced by the execution of such Senior Notes.
(e) Provisions Applicable to Forms of Notes. The Senior Notes
may also have such additional provisions, omissions, variations or substitutions
as are not inconsistent with the provisions of this 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 this Indenture,
any applicable law or with any rules made pursuant thereto or with the rules of
any securities exchange or governmental agency or as may be determined
consistently herewith by the Officers of the Company executing such Senior
Notes, as conclusively evidenced by their execution of such Senior Notes. All
Senior Notes will be otherwise substantially identical except as provided
herein.
Subject to the provisions of this Article 2, a Holder of a
Global Note may grant proxies and otherwise authorize any Person to take any
action that a Holder is entitled to take under this Indenture or the Senior
Notes.
SECTION 2.2 Execution and Authentication.
One Officer shall sign the Senior Notes for the Company by
manual or facsimile signature.
If an Officer whose signature is on a Senior Note no longer
holds that office at the time a Senior Note is authenticated, the Senior Note
shall nevertheless be valid.
A Senior Note shall not be valid until authenticated by the
manual signature of the Trustee. The signature shall be conclusive evidence that
the Senior Note has been authenticated under this Indenture. The form of
Trustee's certificate of authentication to be borne by the Senior Notes shall be
substantially as set forth in Exhibit A hereto.
The Trustee shall authenticate (i) Initial Senior Notes for
original issue in an aggregate principal amount not to exceed $300,000,000 and
(ii) Exchange Notes for issue only in the Exchange Offer pursuant to the
Exchange Offer Registration Statement for a like principal amount of Initial
Senior Notes exchanged in such Exchange Offer, in each case upon the receipt of
a Company Order directing the Trustee to authenticate such Senior Notes and
certifying that all conditions precedent to the issuance of the relevant Senior
Notes contained herein have been complied with. The aggregate principal amount
of Senior Notes outstanding at any time may not exceed $300,000,000, except as
provided in Section 2.7 hereof.
The Trustee may appoint an authenticating agent acceptable to
the Company to authenticate Senior Notes. Unless limited by the terms of such
appointment, an authenticating agent may authenticate Senior Notes whenever the
Trustee may do so. Each reference in this Indenture to authentication by the
Trustee includes authentication by such agent. An authenticating agent has the
same rights as an Agent to deal with the Company or an Affiliate of the Company.
SECTION 2.3 Registrar and Paying Agent.
The Company shall maintain (i) an office or agency where
Senior Notes may be presented for registration of transfer or for exchange
("Registrar"), (ii) an office or agency where Senior Notes may be presented for
payment ("Paying Agent"), and (iii) and an office or agency where notices or
demands to or upon the Company and the Guarantors in respect of the Senior Notes
and this Indenture may be saved. The Registrar shall keep a register of the
Senior Notes and of their transfer and exchange (the "Securities Register"). The
Company may appoint one or more co-registrars and one or more additional paying
agents except as otherwise provided in this Indenture. The term "Registrar"
includes any co-registrar and the term "Paying Agent" includes any additional
paying agent. The Company may change any Paying Agent or Registrar without
notice to any Holder. The Company shall notify the Trustee in writing of the
name and address of any Agent not a party to this Indenture. If the Company
fails to appoint or maintain another entity as Registrar or Paying Agent, the
Trustee shall act as such. The Company or any of its Subsidiaries may act as
Paying Agent or Registrar.
The Company initially appoints The Depository Trust Company
("DTC") to act as Depository with respect to the Global Notes.
The Company initially appoints the Trustee (at the Corporate
Trust Office of the Trustee) to act as the Registrar and Paying Agent and to act
as Senior Note Custodian with respect to the Global Notes.
SECTION 2.4 Paying Agent to Hold Money in Trust.
The Company shall require each Paying Agent other than the
Trustee to agree in writing that the Paying Agent will hold in trust for the
benefit of Holders or the Trustee all money held by the Paying Agent for the
payment of principal of, premium, if any, on, interest on, and Special Interest,
if any, on, the Senior Notes, and shall notify the Trustee of any default by the
Company in making any such payment. While any such default continues, the
Trustee may require a Paying Agent to pay all money held by it to the Trustee.
The Company at any time may require a Paying Agent to pay all money held by it
to the Trustee. Upon payment over to the Trustee, the Paying Agent (if other
than the Company or a Subsidiary) shall have no further liability for the money.
If the Company or a Subsidiary acts as Paying Agent, it shall segregate and hold
in a separate trust fund for the benefit of the Holders all money held by it as
Paying Agent. Upon any bankruptcy or reorganization proceedings relating to the
Company, the Trustee shall serve as Paying Agent for the Senior Notes.
SECTION 2.5 Holder Lists.
The Trustee shall preserve in as current a form as is
reasonably practicable the most recent list available to it of the names and
addresses of all Holders and shall otherwise comply with TIA ss. 312(a). If the
Trustee is not the Registrar, the Company shall furnish to the Trustee at least
seven Business Days before each Interest Payment Date and at such other times as
the Trustee may request in writing, a list in such form and as of such date as
the Trustee may reasonably require of the names and addresses of the Holders of
Senior Notes, and the Company shall otherwise comply with TIA ss. 312(a).
.ECTION 2.6 Transfer and Exchange
(a) Transfer and Exchange of Global Notes. The transfer and
exchange of beneficial interests in Global Notes shall be effected through the
Depository, in accordance with this Indenture and the Applicable Procedures,
which shall include restrictions on transfer comparable to those set forth
herein to the extent required by the Securities Act. Beneficial interests in a
Global Note may be transferred to Persons who take delivery thereof in the form
of a beneficial interest in the same Global Note in accordance with the transfer
restrictions set forth in the legend in subsection (e) of this Section 2.6.
Transfers of beneficial interests in the Global Notes to Persons required to
take delivery thereof in the form of an interest in another Global Note shall be
permitted as follows:
(i) U.S. Global Note to Regulation S Global Note. Prior to the expiration of
the 40-day restricted period, an owner of a beneficial interest in a U.S.
Global Note deposited with the Depository (or the Senior Note Custodian)
will not be permitted to transfer its interest to a Person who wishes to
take delivery thereof in the form of an interest in the Regulation S Global
Note. If, at any time after the expiration of the 40-day restricted period,
an owner of a beneficial interest in a U.S. Global Note deposited with the
Depository (or the Senior Note Custodian) wishes to transfer its beneficial
interest in such U.S. Global Note to a Person who is required or permitted
to take delivery thereof in the form of an interest in a Regulation S
Global Note, such owner shall, subject to the Applicable Procedures,
exchange or cause the exchange of such interest for an equivalent
beneficial interest in a Regulation S Global Note as provided in this
Section 2.6(a)(i). Upon receipt by the Trustee of (1) instructions given in
accordance with the Applicable Procedures from a Participant directing the
Trustee to credit or cause to be credited a beneficial interest in the
Regulation S Global Note in an amount equal to the beneficial interest in
the U.S. Global Note to be exchanged, (2) a written order given in
accordance with the Applicable Procedures containing information regarding
the Participant account of the Depository and the Euroclear or Cedel
account to be credited with such increase, and (3) a certificate in the
form of Exhibit B-1 hereto given by the owner of such beneficial interest
stating that the transfer of such interest has been made in compliance with
the transfer restrictions applicable to the Global Notes and pursuant to
and in accordance with Rule 903 or Rule 904 of Regulation S, then the
Trustee, as Registrar, shall instruct the Depository to reduce or cause to
be reduced the aggregate principal amount at Maturity of the applicable
U.S. Global Note and to increase or cause to be increased the aggregate
principal amount at Maturity of the applicable Regulation S Global Note by
the principal amount at Maturity of the beneficial interest in the U.S.
Global Note to be exchanged or transferred, to credit or cause to be
credited to the account of the Person specified in such instructions, a
beneficial interest in the Regulation S Global Note equal to the reduction
in the aggregate principal amount at Maturity of the U.S. Global Note, and
to debit, or cause to be debited, from the account of the Person making
such exchange or transfer the beneficial interest in the U.S. Global Note
that is being exchanged or transferred.
(ii) Regulation S Global Note to U.S. Global Note. Prior to the expiration of
the 40-day restricted period, an owner of a beneficial interest in a
Regulation S Global Note deposited with the Depository (or the Senior Note
Custodian) will not be permitted to transfer its interest to a Person who
wishes to take delivery thereof in the form of an interest in a U.S. Global
Note. If, at any time, after the expiration of the 40-day restricted
period, an owner of a beneficial interest in a Regulation S Global Note
deposited with the Depository or with the Senior Note Custodian wishes to
transfer its beneficial interest in such Regulation S Global Note to a
Person who is required or permitted to take delivery thereof in the form of
an interest in a U.S. Global Note, such owner shall, subject to the
Applicable Procedures, exchange or cause the exchange of such interest for
an equivalent beneficial interest in a U.S. Global Note as provided in this
Section 2.6(a)(ii). Upon receipt by the Trustee of (1) instructions from
Euroclear or Cedel, if applicable, and the Depository, directing the
Trustee, as Registrar, to credit or cause to be credited a beneficial
interest in the U.S. Global Note equal to the beneficial interest in the
Regulation S Global Note to be exchanged, such instructions to contain
information regarding the Participant account with the Depository to be
credited with such increase, (2) a written order given in accordance with
the Applicable Procedures containing information regarding the participant
account of the Depository and (3) a certificate in the form of Exhibit B-2
attached hereto given by the owner of such beneficial interest stating (A)
if the transfer is pursuant to Rule 144A, that the Person transferring such
interest in a Regulation S Global Note reasonably believes that the Person
acquiring such interest in a U.S. Global Note is a QIB and is obtaining
such beneficial interest in a transaction meeting the requirements of Rule
144A and any applicable blue sky or securities laws of any state of the
United States, (B) that the transfer complies with the requirements of Rule
144 under the Securities Act, (C) if the transfer is to an Institutional
Accredited Investor that such transfer is in compliance with the Securities
Act and that a certificate in the form of Exhibit C attached hereto is
attached thereto, together with, if the Company should so request, an
Opinion of Counsel acceptable to the Company that such transfer is in
compliance with the Securities Act or (D) if the transfer is pursuant to
any other exemption from the registration requirements of the Securities
Act, that the transfer of such interest has been made in compliance with
the transfer restrictions applicable to the Global Notes and pursuant to
and in accordance with the requirements of the exemption claimed, such
statement to be supported by an Opinion of Counsel from the transferee or
the transferor in form reasonably acceptable to the Company and to the
Registrar and, in each case, in accordance with any applicable securities
laws of any state of the United States or any other applicable
jurisdiction, then the Trustee, as Registrar, shall instruct the Depository
to reduce or cause to be reduced the aggregate principal amount at maturity
of such Regulation S Global Note and to increase or cause to be increased
the aggregate principal amount at maturity of the applicable U.S. Global
Note by the principal amount at maturity of the beneficial interest in the
Regulation S Global Note to be exchanged or transferred, and the Trustee,
as Registrar, shall instruct the Depository, concurrently with such
redemption, to credit or cause to be credited to the account of the Person
specified in such instructions a beneficial interest in the applicable U.S.
Global Note equal to the reduction in the aggregate principal amount at
maturity of such Regulation S Global Note and to debit or cause to be
debited from the account of the Person making such transfer the beneficial
interest in the Regulation S Global Note that is being exchanged or
transferred.
(iii)U.S. Global Notes to Institutional Accredited Investor. If, at any time,
an owner of a beneficial interest in a U.S. Global Note deposited with the
Depository (or the Senior Note Custodian) wishes to transfer its beneficial
interest in such U.S. Global Note to a Person who is an Institutional
Accredited Investor, such owner shall, subject to the Applicable Procedures
and the other provisions of this Section 2.6, exchange or cause the
exchange of such interest for an equivalent beneficial interest in a U.S.
Global Note as provided in this Section 2.6(a)(iii). Upon receipt by the
Trustee of (1) instructions given in accordance with the Applicable
Procedures from a Participant directing the Trustee to credit or cause to
be credited a beneficial interest in the U.S. Global Note in an amount
equal to the beneficial interest in the U.S. Global Note to be exchanged,
(2) a written order given in accordance with the Applicable Procedures
containing information regarding the Participant account of the Depository
to be credited with such increase, and (3) a certificate in the form of
Exhibit C hereto given by the proposed transferee, and, if the Company
should so request, an Opinion of Counsel provided by the transferor or the
transferee (a copy of which the Transferor attaches to such certificate),
in form reasonably acceptable to the Company and to the Registrar, to the
effect that such transfer is in compliance with the Securities Act, then
the Trustee, as Registrar, shall instruct the Depository to credit or cause
to be credited to the account of the Person specified in such instructions,
a beneficial interest in the U.S. Global Note equal to the aggregate
principal amount being transferred, and to debit, or cause to be debited,
from the account of the Person making such exchange or transfer the
beneficial interest in the U.S. Global Note that is being exchanged or
transferred.
(b) Transfer and Exchange of Certificated Senior Notes. When
Certificated Senior Notes are presented by a Holder to the Registrar with a
request to register the transfer of the Certificated Senior Notes or to exchange
such Certificated Senior Notes for an equal principal amount of Certificated
Senior Notes of other authorized denominations, the Registrar shall register the
transfer or make the exchange as requested only if the Certificated Senior Notes
are presented or surrendered for registration of transfer or exchange, are
endorsed and contain a signature guarantee or are accompanied by a written
instrument of transfer in form satisfactory to the Registrar duly executed by
such Holder or by his attorney and contains a signature guarantee, duly
authorized in writing and the Registrar received the following documentation
(all of which may be submitted by facsimile):
in the case of Certificated Senior Notes that are
Transfer Restricted Senior Notes, such request shall
be accompanied by the following additional
information and documents, as applicable:
(A) if such Transfer Restricted Senior Note is
being delivered to the Registrar by a Holder
for registration in the name of such Holder,
without transfer, or such Transfer
Restricted Senior Note is being transferred
to the Company, a certification to that
effect from such Holder (in substantially
the form of Exhibit B-3 hereto); or
(B) if such Transfer Restricted Senior Note is
being transferred to a QIB in accordance
with Rule 144A under the Securities Act or
pursuant to an exemption from registration
in accordance with Rule 144 under the
Securities Act or in an offshore transaction
pursuant to and in compliance with Rule 904
under the Securities Act or pursuant to an
effective registration statement under the
Securities Act, a certification to that
effect from such Holder (in substantially
the form of Exhibit B-3 hereto); or
(C) if such Transfer Restricted Senior Note is
being transferred in reliance on any other
exemption from the registration requirements
of the Securities Act, a certification to
that effect from such Holder (in
substantially the form of Exhibit B-3
hereto) and an Opinion of Counsel from such
Holder or the transferee reasonably
acceptable to the Company and to the
Registrar to the effect that such transfer
is in compliance with the Securities Act.
(c) Transfer of a Beneficial Interests in Global Notes
for Certificated Senior Notes.
(i) The Global Notes that are Transfer Restricted Senior Notes or the Exchange
Global Notes, as the case may be, shall be exchanged by the Company for one
or more Certificated Senior Notes representing Initial Senior Notes or
Exchange Notes, as the case may be, if (x) the Depositary (i) has notified
the Company that it is unwilling or unable to continue as, or ceases to be,
a "Clearing Agency" registered under Section 17A of the Exchange Act and
(ii) a successor to the Depositary registered as a "Clearing Agency" under
Section 17A of the Exchange Act is not able to be appointed by the Company
within 90 calendar days or (y) the Depositary is at any time unwilling or
unable to continue as Depositary and a successor to the Depositary is not
able to be appointed by the Company within 90 calendar days or (iii) the
Company, at its option, delivers a notice in the form of an Officers'
Certificate that it elects to cause the issuance of Certificated Senior
Notes. If an Event of Default occurs and is continuing, the Company shall,
at the request of the Holder thereof, exchange all or part of a Global Note
that is a Transfer Restricted Senior Note or an Exchange Global Note, as
the case may be, for one or more Certificated Senior Notes representing
Initial Senior Notes or Exchange Notes, as the case may be; provided that
the principal amount of each of such Certificated Senior Notes, and such
Global Note, after such exchange, shall be $1,000 or an integral multiple
thereof. Whenever a Global Note is exchanged as a whole for one or more
Certificated Senior Notes, it shall be surrendered by the Holder thereof to
the Trustee for cancellation. Whenever a Global Note is exchanged in part
for one or more Certificated Senior Notes, it shall be surrendered by the
Holder thereof to the Trustee and the Trustee shall make the appropriate
notations to Schedule A thereof pursuant to Section 2.1 hereof. All
Certificated Senior Notes or Exchange Notes, as the case may be, issued in
exchange for a Global Note or any portion thereof shall be registered in
such names, and delivered, as the Depositary shall instruct the Trustee.
Any Certificated Senior Notes issued pursuant to this Section 2.6(c)(i)
shall include the Private Placement Legend, except as otherwise provided
for by Section 2.6 hereof. Interests in a Global Note may not be exchanged
for Certificated Senior Notes other than as provided in this Section 2.6.
If a beneficial interest in a Transfer Restricted Senior Note is being
transferred, the following additional documents and information must be
submitted (including by facsimile):
(A) if such beneficial interest is being transferred to the Person designated
by the Depository as being the beneficial owner, a certification to that
effect from such Person (in substantially the form of Exhibit B-4 hereto);
(B) if such beneficial interest is being transferred to a QIB in accordance
with Rule 144A under the Securities Act or pursuant to an exemption from
registration in accordance with Rule 144 under the Securities Act or in an
offshore transaction pursuant to and in compliance with Rule 904 under the
Securities Act or pursuant to an effective registration statement under the
Securities Act, a certification to that effect from the transferor (in
substantially the form of Exhibit B-4 hereto);
(C) if such beneficial interest is being transferred in reliance on any other
exemption from the registration requirements of the Securities Act, a
certification to that effect from the transferor (in substantially the form
of Exhibit B-4 hereto) and an Opinion of Counsel from the transferee or the
transferor reasonably acceptable to the Company and to the Registrar to the
effect that such transfer is in compliance with the Securities Act, in
which case the Trustee or the Senior Note Custodian, at the direction of
the Trustee, shall, in accordance with the standing instructions and
procedures existing between the Depository and the Senior Note Custodian,
cause the aggregate principal amount of U.S. Global Notes or Regulation S
Global Notes, as applicable, to be reduced accordingly and, following such
reduction, the Company shall execute and, the Trustee shall authenticate
and deliver to the transferee a Certificated Senior Note in the appropriate
principal amount.
(ii) Certificated Senior Notes issued in exchange for a beneficial interest in a
U.S. Global Note or Regulation S Global Note, as applicable, pursuant to
this Section 2.6(c) shall be registered in such names and in such
authorized denominations as the Depository, pursuant to instructions from
its Participants or Indirect Participants or otherwise, shall instruct the
Trustee. The Trustee shall deliver such Certificated Senior Notes to the
Persons in whose names such Senior Notes are so registered. Following any
such issuance of Certificated Senior Notes, the Trustee, as Registrar,
shall instruct the Depository to reduce or cause to be reduced the
aggregate principal amount at maturity of the applicable Global Note to
reflect the transfer.
(d) Restrictions on Transfer and Exchange of Global Notes.
Notwithstanding any other provision of this Indenture (other than the provisions
set forth in subsection (e) of this Section 2.6), a Global Note may not be
transferred as a whole except by the Depository to a nominee of the Depository
or by a nominee of the Depository to the Depository or another nominee of the
Depository or by the Depository or any such nominee to a successor Depository or
a nominee of such successor Depository. Any Holder of a beneficial interest in a
Global Note shall, by acceptance of such Global Note, agree that transfers of
beneficial interests in such Global Note may be effected only through a book
entry system maintained by the Holder of such Global Note (or its agent), and
that ownership of a beneficial interest in the Senior Notes represented hereby
shall be required to be reflected in book entry form. Interests of beneficial
owners in a Global Note may be transferred in accordance with the rules and
procedures of the Depositary (or its successors).
(e) Legends.
(i) Except as permitted by the following paragraphs (ii), (iii) and (iv), each
Senior Note certificate evidencing Global Notes and Certificated Senior
Notes (and all Senior Notes issued in exchange therefor or substitution
thereof) shall bear a legend (the "Private Placement Legend") in
substantially the following form:
THIS SENIOR NOTE (OR ITS PREDECESSOR) HAS NOT BEEN REGISTERED UNDER THE U.S.
SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), AND, ACCORDINGLY, MAY
NOT BE OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED WITHIN THE UNITED STATES
OR TO, OR FOR THE ACCOUNT OR BENEFIT OF, U.S. PERSONS, EXCEPT AS SET FORTH IN
THE THIRD SENTENCE HEREOF. BY ITS ACQUISITION HEREOF OR OF A BENEFICIAL INTEREST
HEREIN, THE HOLDER (1) REPRESENTS THAT (A) IT IS A "QUALIFIED INSTITUTIONAL
BUYER" (AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT) (A "QIB"), OR (B) IT
IS ACQUIRING THIS SENIOR NOTE IN AN OFFSHORE TRANSACTION IN COMPLIANCE WITH
REGULATION S UNDER THE SECURITIES ACT, OR (2) AGREES THAT IT WILL NOT, RESELL OR
OTHERWISE TRANSFER THIS NOTE EXCEPT (A) TO THE COMPANY OR ANY OF ITS
SUBSIDIARIES, (B) TO A PERSON WHOM THE SELLER REASONABLY BELIEVES IS A QIB
PURCHASING FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A QIB IN A TRANSACTION
MEETING THE REQUIREMENTS OF RULE 144A, (C) IN AN OFFSHORE TRANSACTION MEETING
THE REQUIREMENTS OF RULE 903 OR 904 OF THE SECURITIES ACT, (D) IN A TRANSACTION
MEETING THE REQUIREMENTS OF RULE 144 UNDER THE SECURITIES ACT, (E) IN ACCORDANCE
WITH ANOTHER EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT
(AND BASED UPON AN OPINION OF COUNSEL ACCEPTABLE TO THE COMPANY) OR (F) PURSUANT
TO AN EFFECTIVE REGISTRATION STATEMENT AND, IN EACH CASE, IN ACCORDANCE WITH THE
APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES OR ANY OTHER
APPLICABLE JURISDICTION AND (3) AGREES THAT IT WILL DELIVER TO EACH PERSON TO
WHOM THIS SENIOR NOTE OR AN INTEREST HEREIN IS TRANSFERRED A NOTICE
SUBSTANTIALLY TO THE EFFECT OF THIS LEGEND. AS USED HEREIN, THE TERMS "OFFSHORE
TRANSACTION" AND "UNITED STATES" HAVE THE MEANINGS GIVEN TO THEM BY RULE 902 OF
REGULATION S UNDER THE SECURITIES ACT. THE INDENTURE CONTAINS A PROVISION
REQUIRING THE TRUSTEE TO REFUSE TO REGISTER ANY TRANSFER OF THIS SENIOR NOTE IN
VIOLATION OF THE FOREGOING.
(ii) Upon any sale or transfer of a Transfer Restricted Senior Note (including
any Transfer Restricted Senior Note represented by a Global Note) pursuant
to Rule 144 under the Securities Act or pursuant to an effective
registration statement under the Securities Act:
(A) in the case of any Transfer Restricted Senior Note that is a Certificated
Senior Note, the Registrar shall permit the Holder thereof to exchange such
Transfer Restricted Senior Note for a Certificated Senior Note that does
not bear the legend set forth in (i) above and rescind any restriction on
the transfer of such Transfer Restricted Senior Note upon receipt of a
certification from the transferring Holder substantially in the form of
Exhibit B-4 hereto; and
(B) in the case of any Transfer Restricted Senior Note represented by a Global
Note, such Transfer Restricted Senior Note shall not be required to bear
the legend set forth in (i) above, but shall continue to be subject to the
provisions of Section 2.6(a) and (b) hereof; provided, however, that with
respect to any request for an exchange of a Transfer Restricted Senior Note
that is represented by a Global Note for a Certificated Senior Note that
does not bear the legend set forth in (i) above, which request is made in
reliance upon Rule 144, the Holder thereof shall certify in writing to the
Registrar that such request is being made pursuant to Rule 144 (such
certification to be substantially in the form of Exhibit B-4 hereto).
(iii)Upon any sale or transfer of a Transfer Restricted Senior Note (including
any Transfer Restricted Senior Note represented by a Global Note) in
reliance on any exemption from the registration requirements of the
Securities Act (other than exemptions pursuant to Rule 144A or Rule 144
under the Securities Act) in which the Holder or the transferee provides an
Opinion of Counsel to the Company and the Registrar in form and substance
reasonably acceptable to the Company and the Registrar (which Opinion of
Counsel shall also state that the transfer restrictions contained in the
legend are no longer applicable):
(A) in the case of any Transfer Restricted
Senior Note that is a Certificated Senior
Note, the Registrar shall permit the Holder
thereof to exchange such Transfer Restricted
Senior Note for a Certificated Senior Note
that does not bear the legend set forth in
(i) above and rescind any restriction on the
transfer of such Transfer Restricted Senior
Note; and
(B) in the case of any Transfer Restricted
Senior Note represented by a Global Note,
such Transfer Restricted Senior Note shall
not be required to bear the legend set forth
in (i) above, but shall continue to be
subject to the provisions of Section 2.6(a)
and (b) hereof.
(iv) By its acceptance of any Initial Senior Note represented by a certificate
bearing the Private Placement Legend, each Holder of, and beneficial owner
of an interest in, such Initial Senior Note acknowledges the restrictions
on transfer of such Initial Senior Note set forth in the Private Placement
Legend and under the heading "Notice to Investors" in the Offering
Memorandum and agrees that it will transfer such Initial Senior Note only
in accordance with the Private Placement Legend and the restrictions set
forth under the heading "Notice to Investors" in the Offering Memorandum.
(v) Notwithstanding the foregoing, upon the occurrence of the Exchange Offer in
accordance with the Registration Rights Agreement, the Company shall issue
and, upon receipt of an authentication order in accordance with Section 2.2
hereof, the Trustee shall authenticate (i) one or more unrestricted Global
Notes in aggregate principal amount equalto the principal amount of the
restricted beneficial interests validly tendered and not properly withdrawn
by Persons that certify in the letter of transmittal delivered in the
Exchange Offer that they are not (x) broker-dealers, (y) Persons
participating in the distribution of the Exchange Notes or (z) Persons who
are affiliates (as defined in Rule 144 under the Securities Act) of the
Company and accepted for exchange in the Exchange Offer and (ii)
Certificated Senior Notes that do not bear the Private Placement Legend in
an aggregate principal amount equal to the principal amount of the
Certificated Senior Notes that are Transfer Restricted Senior Notes
accepted for exchange in the Exchange Offer. Concurrently with the issuance
of such Senior Notes, the Trustee shall cause the aggregate principal
amount of the applicable Global Notes to be reduced accordingly and the
Company shall execute and the Trustee shall authenticate and deliver to the
Persons designated by the Holders of Certificated Senior Notes so accepted
Certificated Senior Notes in the appropriate principal amount.
(f) Cancellation and/or Adjustment of Global Notes. At such
time as all beneficial interests in Global Notes have been exchanged for
Certificated Senior Notes, redeemed, repurchased or cancelled, all Global Notes
shall be returned to or retained and cancelled by the Trustee in accordance with
Section 2.11 hereof. At any time prior to such cancellation, if any beneficial
interest in a Global Note is exchanged for Certificated Senior Notes, redeemed,
repurchased or cancelled, the principal amount of Senior Notes represented by
such Global Note shall be reduced accordingly and an endorsement shall be made
on such Global Note, by the Trustee or the Senior Notes Custodian, at the
direction of the Trustee, to reflect such reduction.
(g) General Provisions Relating to Transfers and Exchanges.
(i) To permit registrations of transfers and exchanges, the Company shall
execute and the Trustee shall authenticate Global Notes and Certificated
Senior Notes at the Registrar's request.
(ii) No service charge shall be made to a Holder for any registration of
transfer or exchange, but the Company may require payment of a sum
sufficient to cover any stamp or transfer tax or similar governmental
charge payable in connection therewith (other than any such stamp or
transfer taxes or similar governmental charge payable upon exchange or
transfer pursuant to Sections 2.10, 3.6, 4.9, 4.10 and 10.6 hereto).
(iii)All Global Notes and Certificated Senior Notes issued upon any
registration of transfer or exchange of Global Notes or Certificated Senior
Notes shall be the valid obligations of the Company, evidencing the same
debt, and entitled to the same benefits under this Indenture, as the Global
Notes or Certificated Senior Notes surrendered upon such registration of
transfer or exchange.
(iv) The Registrar shall not be required: (A) to issue, to register the transfer
of or to exchange Senior Notes during a period beginning at the opening of
fifteen (15) Business Days before the day of any selection of Senior Notes
for redemption under Section 3.2 hereof and ending at the close of business
on the day of selection, (B) to register the transfer of or to exchange any
Senior Note so selected for redemption in whole or in part, except the
unredeemed portion of any Senior Note being redeemed in part, or (C) to
register the transfer of or to exchange a Senior Note between a Record Date
and the next succeeding Interest Payment Date.
(v) Prior to due presentment for the registration of a transfer of any Senior
Note, the Trustee, any Agent and the Company may deem and treat the Person
in whose name any Senior Note is registered as the absolute owner of such
Senior Note for the purpose of receiving payment of principal of and
interest on such Senior Notes and for all other purposes, and neither the
Trustee, any Agent nor the Company shall be affected by notice to the
contrary.
(vi) The Trustee shall authenticate Global Notes and Certificated Senior Notes
in accordance with the provisions of Section 2.2 hereof.
SECTION 2.7 Replacement of Senior Notes.
If any mutilated Senior Note is surrendered to the Trustee, or
the Company and the Trustee receives evidence to its satisfaction of the
destruction, loss or theft of any Senior Note, the Company shall issue and the
Trustee, upon the written order of the Company signed by two Officers of the
Company, shall authenticate a replacement Senior Note if the Trustee's
requirements are met. If required by the Trustee or the Company, an indemnity
bond must be supplied by the Holder that is sufficient in the judgment of the
Trustee and the Company to protect the Company, each Guarantor, the Trustee, any
Agent and any authenticating agent from any loss that any of them may suffer if
a Senior Note is replaced. The Company may charge for its expenses in replacing
a Senior Note.
Every replacement Senior Note is an additional obligation of
the Company and shall be entitled to all of the benefits of this Indenture
equally and proportionately with all other Senior Notes duly issued hereunder.
The provisions of this Section 2.7 are exclusive and shall preclude (to the
extent lawful) all other rights and remedies with respect to the replacement of
mutilated, destroyed, lost or stolen Senior Notes.
SECTION 2.8 Outstanding Senior Notes.
The Senior Notes outstanding at any time are all the Senior
Notes authenticated by the Trustee except for those cancelled by it, those
delivered to it for cancellation, those reductions in the interest in a Global
Note effected by the Trustee in accordance with the provisions hereof, and those
described in this Section as not outstanding. Except as set forth in Section 2.9
hereof, a Senior Note does not cease to be outstanding because the Company or an
Affiliate of the Company holds the Senior Note.
If a Senior Note is replaced pursuant to Section 2.7 hereof,
it ceases to be outstanding unless the Trustee receives proof satisfactory to it
that the replaced Senior Note is held by a bona fide purchaser.
If the principal amount of any Senior Note is considered paid
under Section 4.1 hereof, it ceases to be outstanding and interest (including
Special Interest, if any) on it ceases to accrue.
If the Paying Agent (other than the Company, a Guarantor, a
Subsidiary or an Affiliate of any thereof) holds, on a Redemption Date or
Maturity, money sufficient to pay Senior Notes payable on that date, then on and
after that date such Senior Notes shall be deemed to be no longer outstanding
and shall cease to accrue interest (including Special Interest, if any).
SECTION 2.9 Treasury Senior Notes.
In determining whether the Holders of the required principal
amount of Senior Notes have concurred in any direction, waiver or consent,
Senior Notes owned by the Company or any Guarantor, or by any Person directly or
indirectly controlling or controlled by or under direct or indirect common
control with the Company or any Guarantor, shall be considered as though not
outstanding, except that for the purposes of determining whether the Trustee
shall be protected in relying on any such direction, waiver or consent, only
Senior Notes that a Responsible Officer knows are so owned shall be so
disregarded.
SECTION 2.10 Temporary Senior Notes.
Until definitive Senior Notes are ready for delivery, the
Company may prepare and the Trustee shall authenticate temporary Senior Notes
upon a written order of the Company signed by two Officers of the Company.
Temporary Senior Notes shall be substantially in the form of definitive Senior
Notes but may have variations that the Company considers appropriate for
temporary Senior Notes and as shall be reasonably acceptable to the Trustee.
Without unreasonable delay, the Company shall prepare and the Trustee shall
authenticate definitive Senior Notes in exchange for temporary Senior Notes.
Holders of temporary Senior Notes shall be entitled to all of
the benefits of this Indenture.
SECTION 2.11 Cancellation.
The Company at any time may deliver Senior Notes to the
Trustee for cancellation. The Registrar and Paying Agent shall forward to the
Trustee any Senior Notes surrendered to them for registration of transfer,
exchange or payment. The Trustee and no one else shall cancel all Senior Notes
surrendered for registration of transfer, exchange, payment, replacement or
cancellation and shall upon the written request of the Company, return such
cancelled Senior Notes to the Company. The Company may not issue new Senior
Notes to replace Senior Notes that it has paid or that have been delivered to
the Trustee for cancellation.
SECTION 2.12. Payment of Interest; Interest Rights Preserved.
Interest (including Special Interest, if any) on any Senior
Note which is payable, and is punctually paid or duly provided for, on any
February 15 or August 15 (an "Interest Payment Date"), commencing on August 15,
1998, shall be paid to the Person in whose name such Senior Note is registered
at the close of business on the Record Date for such interest payment, which
shall be the January 31 or July 31 (whether or not a Business Day) immediately
preceding such Interest Payment Date.
Any interest on any Senior Note which is payable, but is not
punctually paid or duly provided for, on any Interest Payment Date (herein
called "Defaulted Interest") shall forthwith cease to be payable to the
registered Holder on the relevant Record Date, and, except as hereinafter
provided, such Defaulted Interest and any interest payable on such Defaulted
Interest may be paid by the Company, at its election, as provided in clause (a)
or (b) below:
(a) The Company may elect to make payment of any Defaulted
Interest, and any interest payable on such Defaulted Interest, to the Persons in
whose names the Senior Notes are registered at the close of business on a
Special Record Date for the payment of such Defaulted Interest, which shall be
fixed in the following manner. The Company shall notify the Trustee in writing
of the amount of Defaulted Interest proposed to be paid on the Senior Notes and
the date 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 (including Special Interest, if any)
or shall make arrangements satisfactory to the Trustee for such deposit 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 provided
in this clause (a). Thereupon the Trustee shall fix a Special Record Date for
the payment of such Defaulted Interest which shall be not more than 15 calendar
days and not less than 10 calendar days prior to the date of the proposed
payment and not less than 10 calendar days after the receipt by the Trustee of
the notice of the proposed payment. The Trustee shall promptly notify the
Company of such Special Record Date and, in the name and at the expense of the
Company, shall cause notice of the proposed payment of such Defaulted Interest
and the Special Record Date therefor to be sent, first class mail, postage
prepaid, to each Holder at such Holder's address as it appears in the Security
Register, not less than 10 calendar days prior to such Special Record Date.
Notice of the proposed payment of such Defaulted Interest and the Special Record
Date therefor having been mailed as aforesaid, such Defaulted Interest shall be
paid to the Persons in whose names the Senior Notes are registered at the close
of business on such Special Record Date and shall no longer be payable pursuant
to the following clause (b).
(b) The Company may make payment of any Defaulted Interest
(including Special Interest, if any), and any interest payable on such Defaulted
Interest, on the Senior Notes in any other lawful manner not inconsistent with
the requirements of any securities exchange on which the Senior Notes may be
listed, and upon such notice as may be required by such exchange, if, after
notice given by the Company to the Trustee of the proposed payment pursuant to
this clause, such manner of payment shall be deemed practicable by the Trustee.
Subject to the foregoing provisions of this Section 2.12, each
Senior Note delivered under this Indenture upon registration of transfer of, or
in exchange for, or in lieu of, or in substitution for, any other Senior Note,
shall carry the rights to interest (and Special Interest, if any) accrued and
unpaid, and to accrue, which were carried by such other Senior Note.
SECTION 2.13 Computation of Interest.
Interest on the Senior Notes shall be computed on the basis of
a 360-day year comprised of twelve 30-day months.
.ECTION 2.14 CUSIP Number
The Company in issuing the Senior Notes may use a "CUSIP"
number, and if it does so, the Trustee shall use the CUSIP number 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 printed in the notice or on the Senior Notes and
that reliance may be placed only on the other identification numbers printed on
the Senior Notes. The Company shall promptly notify the Trustee of any change in
the CUSIP number.
ARTICLE 3
REDEMPTION AND PREPAYMENT
SECTION 3.1 Notices to Trustee.
If the Company elects to redeem Senior Notes pursuant to the
optional redemption provisions of Section 3.7 hereof and of the Senior Notes, it
shall furnish to the Trustee, at least 30 days (unless a shorter period is
acceptable to the Trustee) but not more than 60 days before a Redemption Date,
an Officers' Certificate setting forth (i) the clause of this Indenture pursuant
to which the redemption shall occur, (ii) the Redemption Date, (iii) the
principal amount of Senior Notes to be redeemed and (iv) the Redemption Price.
SECTION 3.2 Selection of Senior Notes to be Redeemed.
If less than all of the Senior Notes are to be redeemed at any
time, selection of the Senior Notes for redemption will be made by the Trustee
in compliance with the requirements of the principal national securities
exchange, if any, on which the Senior Notes are listed or, if the Senior Notes
are not so listed, on a pro rata basis, by lot or by such method as the Trustee
considers fair and appropriate. In the event of partial redemption by lot, the
particular Senior Notes to be redeemed shall be selected, unless otherwise
provided herein, not less than 30 nor more than 60 days prior to the Redemption
Date by the Trustee from the outstanding Senior Notes not previously called for
redemption.
The Trustee shall promptly notify the Company in writing of
the Senior Notes selected for redemption and, in the case of any Senior Note
selected for partial redemption, the portion of the principal amount thereof to
be redeemed. Senior Notes and portions of Senior Notes selected shall be in
amounts of $1,000 or integral multiples of $1,000, except that if all of the
Senior Notes of a Holder are to be redeemed, the entire outstanding amount of
Senior Notes held by such Holder, even if not an integral multiple of $1,000,
shall be redeemed. Except as provided in the preceding sentence, provisions of
this Indenture that apply to Senior Notes called for redemption also apply to
portions of Senior Notes called for redemption.
SECTION 3.3 Notice of Redemption.
At least 30 days but not more than 60 days before a Redemption
Date, the Company shall mail or cause to be mailed, by first class mail, a
notice of redemption to each Holder whose Senior Notes are to be redeemed at its
registered address as it appears in the Securities Register.
The notice shall identify the Senior Notes to be redeemed including CUSIP
number and shall state:
(a) the Redemption Date;
(b) the Redemption Price;
(c) if any Senior Note is being redeemed in part, the portion
of the principal amount of such Senior Note to be redeemed and that, after the
Redemption Date upon surrender of such Senior Note, a new Senior Note or Senior
Notes in principal amount equal to the unredeemed portion shall be issued upon
cancellation of the original Senior Note;
(d) the name and address of the Paying Agent;
(e) that Senior Notes called for redemption (other than a
Global Note) must be surrendered to the Paying Agent to collect the Redemption
Price;
(f) that, unless the Company defaults in making such
Redemption Payment, interest (and Special Interest, if any) on Senior Notes (or
portions thereof) called for redemption cease to accrue on and after the
Redemption Date;
(g) the paragraph of the Senior Notes and/or Section of this
Indenture pursuant to which the Senior Notes called for redemption are being
redeemed; and
(h) that no representation is made as to the correctness or
accuracy of the CUSIP number, if any, listed in such notice or printed on the
Senior Notes.
At the Company's request, the Trustee shall give the notice of
redemption in the Company's name and at its expense; provided, however, that the
Company shall have delivered to the Trustee, at least 30 days prior to the
Redemption Date (unless a shorter time is acceptable to the Trustee), an
Officers' Certificate requesting that the Trustee give such notice and setting
forth the information to be stated in such notice as provided in the preceding
paragraph.
SECTION 3.4 Effect of Notice of Redemption.
Once notice of redemption is mailed in accordance with Section
3.3 hereof, Senior Notes called for redemption become irrevocably due and
payable on the Redemption Date at the Redemption Price including interest and
Special Interest, if any, accrued and unpaid on the Redemption Date. Upon
surrender to the Paying Agent, such Senior Notes shall be paid at the Redemption
Price stated in such notice. Failure to give notice or any defect in the notice
to any Holder shall not affect the validity of the notice to any other Holder. A
notice of redemption may not be conditional.
SECTION 3.5 Deposit of Redemption Price.
On or prior to the Redemption Date, the Company shall deposit
with the Trustee or with the Paying Agent immediately available funds sufficient
to pay the Redemption Price of and accrued and unpaid interest, if any, on (and
Special Interest, if any), on all Senior Notes to be redeemed on that date. The
Trustee or the Paying Agent shall promptly return to the Company any money
deposited with the Trustee or the Paying Agent by the Company in excess of the
amounts necessary to pay the Redemption Price of, and accrued interest
(including Special Interest, if any) on, all Senior Notes to be redeemed.
If the Company complies with the provisions of the preceding
paragraph, on and after the Redemption Date, interest (and Special Interest, if
any) shall cease to accrue on the Senior Notes or the portions of Senior Notes
called for redemption. If a Senior Note is redeemed on or after a Record Date
but on or prior to the related Interest Payment Date, then any accrued and
unpaid interest (and Special Interest, if any) shall be paid to the Person in
whose name such Senior Note was registered at the close of business on such
Record Date. If any Senior Note called for redemption shall not be so paid upon
surrender for redemption because of the failure of the Company to comply with
the preceding paragraph, interest (and Special Interest, if any) shall be paid
on the unpaid principal, from the Redemption Date until such principal is paid,
and to the extent lawful on any interest not paid on such unpaid principal, in
each case at the rate provided in the Senior Notes and in Section 4.1 hereof.
SECTION 3.6 Senior Notes Redeemed in Part.
Upon surrender of a Senior Note that is redeemed in part, the
Company shall issue and, upon the Company's written request, the Trustee shall
authenticate for the Holder at the expense of the Company a new Senior Note
equal in principal amount to the unredeemed portion of the Senior Note
surrendered. The records of the Registrar and the Depositary shall reflect any
partial redemption of any Global Note.
SECTION 3.7 Optional Redemption.
(a) Except as set forth in clause (b) of this Section 3.7, the
Senior Notes shall not be redeemable at the Company's option prior to February
15, 2003. On or after such date, the Senior Notes shall be redeemable at the
option of the Company, in whole at any time or in part from time to time, at the
following prices (expressed in percentages of the principal amount thereof) if
redeemed during the twelve-month period beginning after February 15 of each of
the years indicated below, in each case together with interest (and Special
Interest, if any) accrued to Redemption Date (subject to the right of Holders of
record on the relevant Record Date to receive interest (and Special Interest, if
any), due on the relevant Interest Payment Date):
Year Percentage
2003........................................ 104.188 %
2004........................................ 102.792 %
2005........................................ 101.396 %
2006 and thereafter......................... 100.000 %
(b) Notwithstanding the provisions of clause (a) of this
Section 3.7, at any time during the first 36 months after the Issue Date, the
Company may at its option redeem up to a maximum of 35% of the aggregate
principal amount of the Senior Notes with the net cash proceeds of one or more
Public Equity Offerings at a Redemption Price equal to 108.375% of the principal
amount thereof, plus accrued and unpaid interest (and Special Interest, if any),
thereon to the Redemption Date; provided that at least 65% of the aggregate
principal amount of the Senior Notes originally issued shall remain outstanding
immediately after the occurrence of such redemption; and provided, further, that
such redemption shall occur within 90 days of the date of the closing of such
Public Equity Offering.
(c) Any redemption pursuant to this Section 3.7 shall be made pursuant to
the provisions of Section 3.1 through 3.6 hereof.
ARTICLE 4
COVENANTS
SECTION 4.1 Payment of Senior Notes.
The Company shall pay or cause to be paid the principal of,
premium, if any, and interest (and Special Interest, if any) on, the Senior
Notes on the dates and in the manner provided in the Senior Notes and in this
Indenture. Principal, premium, if any, and interest (and Special Interest, if
any) shall be considered paid on the date due if the Trustee or the Paying
Agent, if other than the Company or a Subsidiary thereof, holds as of 12:00
noon, New York Time, on the due date money deposited by the Company in
immediately available funds and designated for and sufficient to pay all
principal, premium, if any, and interest (and Special Interest, if any), then
due. The Company shall pay all Special Interest, if any, in the same manner on
the dates and in the amounts set forth in the Registration Rights Agreement. The
Company will promptly notify the Trustee of a Registration Default (as defined
in the Registration Rights Agreement) under the Registration Rights Agreement
and any cure thereof.
The Company shall pay interest (including post-petition
interest in any proceeding under any Bankruptcy Law) on Defaulted Interest and
Special Interest, if any (without regard to any applicable grace period) at the
same rate to the extent lawful.
SECTION 4.2 Maintenance of Office or Agency.
The Company shall maintain in the Borough of Manhattan, The
City of New York, an office or agency (which may be an office of the Trustee or
an affiliate of the Trustee, Registrar or co-registrar) where Senior Notes may
be surrendered for registration of transfer or for exchange and where notices
and demands to or upon the Company in respect of the Senior Notes and this
Indenture may be served. The Company shall give prompt written notice to the
Trustee of the location, and any change in the location, of such office or
agency. If at any time the Company shall fail to maintain any such required
office or agency or shall fail to furnish the Trustee with the address thereof,
such presentations, surrenders, notices and demands may be made or served at the
Corporate Trust Office of the Trustee.
The Company may also from time to time designate one or more
other offices or agencies where the Senior Notes may be presented or surrendered
for any or all such purposes and may from time to time rescind such
designations; provided, however, that no such designation or rescission shall in
any manner relieve the Company of its obligation to maintain an office or agency
in the Borough of Manhattan, The City of New York for such purposes. The Company
shall give prompt written notice to the Trustee of any such designation or
rescission and of any change in the location of any such other office or agency.
The Company hereby designates the Corporate Trust Office of
the Trustee as one such office or agency of the Company in accordance with
Section 2.3 hereof.
SECTION 4.3 Corporate Existence.
Subject to the provisions of Article 5 hereof, the Company
shall do or cause to be done all things necessary to preserve and keep in full
force and effect (i) its corporate existence, and the corporate, partnership or
other existence of each of its Subsidiaries, in accordance with the respective
organizational documents (as the same may be amended from time to time) of each
of the Company or any such Subsidiary and (ii) the rights (charter and
statutory), licenses and franchises of each of the Company and its Subsidiaries;
provided, however, that the Company shall not be required to preserve any such
right, license or franchise, or the corporate, partnership or other existence of
any of its Subsidiaries, if the Board of Directors of the Company shall
determine that the preservation thereof is no longer desirable in the conduct of
the business of the Company and its Subsidiaries taken as a whole and that the
loss thereof is not adverse in any material respect to the Holders of the Senior
Notes.
SECTION 4.4 Maintenance of Properties and Insurance.
(a) The Company shall cause all material Properties owned by
or leased by it or any of its Subsidiaries useful and necessary to the conduct
of its business or the business of any of its Subsidiaries to be maintained and
kept in good condition, repair and working order (reasonable wear and tear
excepted) and shall cause to be made all necessary repairs, renewals,
replacements, betterments and improvements thereof, all as in its judgment may
be necessary, so that the business carried on in connection therewith may be
properly conducted at all times; provided, however, that nothing in this Section
4.4 shall prevent the Company or any of its Subsidiaries from discontinuing the
use, operation or maintenance of any of such Properties, or disposing of any of
them, if such discontinuance or disposal is, in the judgment of the Board of
Directors of the Company or the Subsidiary of the Company so concerned, or of an
officer (or other agent employed by the Company or of the Subsidiary so
concerned) of the Company or a Subsidiary having managerial responsibility for
any such property, desirable in the conduct of the business of the Company or
such Subsidiary of the Company, and if such discontinuance or disposal is not
adverse in any material respect to the Holders.
(b) To the extent available at commercially reasonable rates,
the Company shall maintain, and shall cause its Subsidiaries, to the extent such
Subsidiaries maintain operations, to maintain, insurance with responsible
carriers against such risks and in such amounts, and with such deductibles,
retentions, self-insured amounts and co-insurance provisions, as are customarily
carried by similar businesses, of similar size.
SECTION 4.5 Compliance With Laws.
The Company shall comply, and shall cause each of its
Subsidiaries to comply, with all applicable statutes, rules, regulations, orders
and restrictions in respect of the conduct of their respective businesses and
the ownership of their respective properties, except for such noncompliances as
would not in the aggregate have a material adverse effect on the financial
condition or results of operations of the Company and its Subsidiaries taken as
a whole.
SECTION 4.6 Reports.
(a) Whether or not the Company is subject to Section 13(a) or
15(d) of the Exchange Act, or any successor provision thereto, the Company shall
file with the Commission the annual reports, quarterly reports and other
documents which the Company would have been required to file with the Commission
pursuant to such Section 13(a) or 15(d) or any successor provision thereto if
the Company were subject thereto, such documents to be filed with the Commission
on or prior to the respective dates (the "Required Filing Dates") by which the
Company would have been required to file them. The Company shall also (whether
or not it is required to file reports with the Commission), within 30 days of
each Required Filing Date, (i) transmit by mail to all Holders of Senior Notes,
as their names and addresses appear in the applicable Securities Register,
without cost to such Holders or Persons, and (ii) file with the Trustee, copies
of the annual reports, quarterly reports and other documents (without exhibits)
which the Company has filed or would have filed with the Commission pursuant to
Section 13(a) or 15(d) of the Exchange Act, any successor provisions thereto or
this covenant. The Company shall not be required to file any report with the
Commission if the Commission does not permit such filing.
(b) For so long as any Senior Notes remain outstanding, the
Company shall furnish to all Holders and to securities analysts and prospective
investors, upon their request, the information required to be delivered pursuant
to Rule 144A(d)(4) under the Securities Act.
SECTION 4.7 Taxes and Other Claims.
The Company shall pay, and shall cause each of its
Subsidiaries to pay, prior to delinquency, (a) all material taxes, assessments,
and governmental charges levied or imposed upon the Company or any of its
Subsidiaries or upon the income, profits or property or assets of the Company or
any of its Subsidiaries and (b) all lawful claims for labor, materials and
supplies, which, if unpaid, might by law become a Lien upon the property or
assets of the Company or any of its Subsidiaries, except such as are contested
in good faith and by appropriate proceedings or where the failure to effect such
payment is not adverse in any material respect to the Holders of the Senior
Notes and for which adequate reserves in accordance with GAAP or other
appropriate provisions have been made.
SECTION 4.8 Stay, Extension and Usury Laws.
The Company and each of the Guarantors covenant (to the extent
that they may lawfully do so) that they shall not at any time insist upon,
plead, or in any manner whatsoever claim or take the benefit or advantage of,
any stay, extension or usury law wherever enacted, now or at any time hereafter
in force, that may affect the covenants or the performance of this Indenture;
and the Company and each of the Guarantors (to the extent that they may lawfully
do so) hereby expressly waive all benefit or advantage of any such law, and
covenant that they shall not, by resort to any such law, hinder, delay or impede
the execution of any power herein granted to the Trustee, but shall suffer and
permit the execution of every such power as though no such law has been enacted.
SECTION 4.9 Change of Control.
(a) Upon the occurrence of a Change of Control, each Holder
shall have the right to require the Company to repurchase such Holder's Senior
Notes in whole or in part (the "Change of Control Offer") at a purchase price
(the "Change of Control Purchase Price") in cash equal to 101% of the aggregate
principal amount thereof, plus accrued and unpaid interest thereon, if any, and
Special Interest, if any, to the Change of Control Payment Date. The Change of
Control Offer will remain open for a period of at least 30 days following its
commencement but no longer than 60 days, except to the extent that a longer
period is required by applicable law (the "Change of Control Offer Period"). On
the first Business Day after the termination of the Change of Control Offer
Period (the "Change of Control Payment Date"), the Company will purchase all
Senior Notes validly tendered and not properly withdrawn pursuant to the Change
of Control Offer. Payment for any Senior Notes so purchased will be made in the
same manner as interest payments are made on the Senior Notes. If the Change of
Control Purchase Date is on or after a Record Date and on or before the related
Interest Payment Date, any accrued and unpaid interest and Special Interest (to
the extent involving interest that is due and payable on such Interest Payment
Date), if any, shall be paid to the Person in whose name a Senior Note is
registered at the close of business on such Record Date, and no additional
interest (or Special Interest, if any) (to the extent involving interest that is
due and payable on such Interest Payment Date)) shall be payable to Holders who
validly tender Senior Notes pursuant to the Change of Control Offer.
(b) Within 30 days following any Change of Control, the
Company or the Trustee (at the expense of the Company) shall mail by first class
mail, a notice to each Holder, with a copy of such notice to the Trustee. The
notice, which shall govern the terms of the Change of Control Offer, shall
state, among other things:
(i) that a Change of Control has occurred and a
Change of Control Offer is being made as provided for herein, and that,
although Holders are not required to tender their Senior Notes, all
Senior Notes that are validly tendered shall be accepted for payment;
(ii) the Change of Control Purchase Price and the
Change of Control Payment Date, which will be no earlier than 30 days
and no later than 60 days after the date such notice is mailed;
(iii) that any Senior Note accepted for payment
pursuant to the Change of Control Offer (and duly paid for on the
Change of Control Payment Date) shall cease to accrue interest and
Special Interest, if applicable, after the Change of Control Payment
Date;
(iv) that any Senior Notes (or portions thereof) not
validly tendered shall continue to accrue interest and Special
Interest, if applicable;
(v) that any Holder electing to have a Senior Note
purchased pursuant to any Change of Control Offer shall be required to
surrender the Senior Note, with the form entitled "Option of Holder to
Elect Purchase" on the reverse of the Senior Note completed, or
transfer by book-entry transfer, to the Company, a depositary, if
appointed by the Company, or a Paying Agent at the address specified in
the notice at least three days before the Change of Control Purchase
Date;
(vi) that Holders shall be entitled to withdraw their
election if the Company, the depositary or the Paying Agent, as the
case may be, receives, not later than the expiration of the Change of
Control Offer Period, a telegram, facsimile transmission or letter
setting forth the name of the Holder, the principal amount of the
Senior Note the Holder delivered for purchase and a statement that such
Holder is withdrawing his election to have such Senior Note purchased;
and
(vii) the instructions and any other information
necessary to enable Holders to tender their Senior Notes (or portions
thereof) and have such Senior Notes (or portions thereof) purchased
pursuant to the Change of Control Offer.
(c) On or before the Change of Control Payment Date, the
Company shall, to the extent lawful, (1) accept for payment all Senior Notes or
portions thereof validly tendered and not properly withdrawn pursuant to the
Change of Control Offer, (2) deposit by 12:00 noon, New York City time, on such
date with the Paying Agent an amount equal to the Change of Control Purchase
Price in respect of all Senior Notes or portions thereof so validly tendered and
not properly withdrawn and (3) deliver or cause to be delivered to the Trustee
the Senior Notes so accepted together with an Officers' Certificate stating the
aggregate principal amount of Senior Notes or portions thereof being purchased
by the Company. The Paying Agent shall promptly (but in any case not later than
five days after the Change of Control Payment Date) mail to each Holder of
Senior Notes so validly tendered and not properly withdrawn the Change of
Control Purchase Price for such Senior Notes.
(d) Upon surrender and cancellation of a Certificated Senior
Note that is purchased in part pursuant to the Change of Control Offer, the
Company shall promptly issue and the Trustee shall authenticate and mail (or
cause to be transferred by book entry) to the surrendering Holder of such
Certificated Senior Note, a new Certificated Senior Note equal in principal
amount to the unpurchased portion of such surrendered Certificated Senior Note;
provided that each such new Certificated Senior Note shall be in a principal
amount of $1,000 or an integral multiple thereof.
Upon surrender of a Global Note that is purchased in part
pursuant to a Change of Control Offer, the Paying Agent shall forward such
Global Note to the Trustee who shall make a notation on Schedule A thereof to
reduce the principal amount of such Global Note to an amount equal to the
unpurchased portion of such Global Note, as provided in Section 2.6 hereof. The
Company shall publicly announce the results of the Change of Control Offer on
the Change of Control Payment Date. For purposes of this Section 4.9, the
Trustee shall act as the Paying Agent.
(e) The Company shall comply with the requirements of Rule
14e-1 under the Exchange Act and any other securities laws and regulations
thereunder to the extent such laws and regulations are applicable in connection
with the repurchase of the Senior Notes as a result of a Change of Control.
SECTION 4.10 Transactions With Affiliates.
Subsequent to the Issue Date, the Company shall not, and shall
not permit any Subsidiary to, directly or indirectly, enter into or permit to
exist any transaction or series of related transactions (including, but not
limited to, the purchase, sale or exchange of Property, the making of any
Investment, the giving of any guarantee or the rendering of any service with any
Affiliate of the Company, other than transactions among the Company and any
Subsidiaries) unless (i) such transaction or series of related transactions is
on terms no less favorable to the Company or such Subsidiary than those that
could be obtained in a comparable arm's length transaction with a Person that is
not such an Affiliate, and (ii) (a) with respect to a transaction or series of
related transactions that has a Fair Market Value in excess of $2,000,000, the
transaction or series of related transactions is approved by a majority of the
Board of Directors of the Company (including a majority of the disinterested
directors), which approval is set forth in a Board Resolution certifying that
such transaction or series of transactions complies with clause (a)(i) of this
Section, and (b) with respect to a transaction or series of related transactions
that has a Fair Market Value in excess of $10,000,000, the Company delivers an
opinion as to the fairness from a financial point of view to the Company or such
Subsidiary issued by an investment banking firm of nationally recognized
standing or other independent appraisal firm or expert of nationally recognized
standing that is qualified, in the reasonable and good faith judgment of the
Board of Directors, to perform the task for which it has been engaged. The
foregoing provisions shall not be applicable to (i) reasonable and customary
compensation, indemnification and other benefits paid or made available to an
officer, director or employee of the Company or a Subsidiary for services
rendered in such person's capacity as an officer, director or employee
(including reimbursement or advancement of reasonable out-of-pocket expenses and
provisions of directors' and officers' liability insurance) or (ii) the making
of any Restricted Payment otherwise permitted herein.
SECTION 4.11 Limitation on Restricted Payments.
(a) The Company shall not, and shall not permit any Subsidiary
to, make any Restricted Payment, unless at the time of and after giving effect
to the proposed Restricted Payment, (i) no Default shall have occurred and be
continuing (or would result therefrom), (ii) the Company could incur at least
$1.00 of additional Indebtedness under the test described in the first sentence
of Section 4.13 and (iii) the aggregate amount of all Restricted Payments
declared or made on or after the Issue Date by the Company or any Subsidiary
shall not exceed the sum of (A) $15,000,000, plus (B) 50% (or if such
Consolidated Net Income shall be a deficit, minus 100% of such deficit) of the
aggregate Consolidated Net Income accrued during the period beginning on the
first day of the fiscal quarter in which the Issue Date falls and ending on the
last day of the fiscal quarter ending immediately prior to the date of such
proposed Restricted Payment, minus 100% of the amount of any writedowns,
write-offs and other negative extraordinary charges not otherwise reflected in
Consolidated Net Income during such period, plus (C) an amount equal to the
aggregate net cash proceeds received by the Company, subsequent to the Issue
Date, from the issuance or sale (other than to a Subsidiary) of shares of its
Capital Stock (excluding Redeemable Stock, but including Capital Stock issued
upon the exercise of options, warrants or rights to purchase Capital Stock
(other than Redeemable Stock) of the Company) and the liability (expressed as a
positive number) as expressed on the face of a balance sheet in accordance with
GAAP in respect of any Indebtedness of the Company or any of its Subsidiaries,
or the carrying value of Redeemable Stock, which has been converted into,
exchanged for or satisfied by the issuance of shares of Capital Stock (other
than Redeemable Stock) of the Company, subsequent to the Issue Date, plus (D)
100% of the net reduction in Restricted Investments, subsequent to the Issue
Date, in any Person, resulting from payments of interest on Indebtedness,
dividends, repayments of loans or advances, or other transfers of Property (but
only to the extent such interest, dividends, repayments or other transfers of
Property are not included in the calculation of Consolidated Net Income), in
each case to the Company or any Subsidiary from any Person (including, without
limitation, from Unrestricted Subsidiaries) or from redesignations of
Unrestricted Subsidiaries as Subsidiaries (valued in each case as provided in
the definition of "Investments"), not to exceed in the case of any Person the
amount of Restricted Investments previously made by the Company or any
Subsidiary in such Person and in each such case which was treated as a
Restricted Payment.
(b) The provisions of Section 4.11(a) above shall not prevent
(A) the payment of any dividend on Capital Stock of any class within 60 days
after the date of its declaration if at the date of declaration such payment
would be permitted by this Indenture; (B) any repurchase or redemption of
Capital Stock or Subordinated Indebtedness of the Company or a Subsidiary made
by exchange for Capital Stock of the Company (other than Redeemable Stock), or
out of the net cash proceeds from the substantially concurrent issuance or sale
(other than to a Subsidiary) of Capital Stock of the Company (other than
Redeemable Stock), provided that the net cash proceeds from such sale are
excluded from computations under clause (a)(iii)(C) of this Section above to the
extent that such proceeds are applied to purchase or redeem such Capital Stock
or Subordinated Indebtedness; (C) so long as no Default shall have occurred and
be continuing or should occur as a consequence thereof, any repurchase or
redemption of Subordinated Indebtedness of the Company or a Subsidiary solely in
exchange for, or out of the net cash proceeds from the substantially concurrent
sale of, new Subordinated Indebtedness of the Company or a Subsidiary, so long
as such Subordinated Indebtedness is permitted under the covenant described in
Section 4.12 and (x) is subordinated to the Senior Notes at least to the same
extent as the Subordinated Indebtedness so exchanged, purchased or redeemed, (y)
has a stated maturity later than the stated maturity of the Subordinated
Indebtedness so exchanged, purchased or redeemed and (z) has an Average Life at
the time incurred that is greater than the remaining Average Life of the
Subordinated Indebtedness so exchanged, purchased or redeemed; and (D)
Investments in any Joint Ventures in an aggregate amount not to exceed $25.0
million. Notwithstanding the foregoing, the amount available for Investments in
Joint Ventures pursuant to clause (D) of the preceding sentence may be increased
by the aggregate amount received by the Company and its Subsidiaries from a
Joint Venture on or before such date resulting from payments of interest on
Indebtedness, dividends, repayments of loans or advances or other transfers of
Property made to such Joint Venture (but only to the extent such interest,
dividends, repayments or other transfers of Property are not included in the
calculation of Consolidated Net Income). Restricted Payments permitted to be
made as described in the first sentence of this Section 4.11(b) shall be
excluded in calculating the amount of Restricted Payments thereafter, except
that any such Restricted Payments permitted to be made pursuant to clause (D)
shall be included in calculating the amount of Restricted Payments made pursuant
to such clause (D) thereafter.
(c) For purposes of this covenant, if a particular Restricted
Payment involves a non-cash payment, including a distribution of assets, then
such Restricted Payment shall be deemed to be an amount equal to the cash
portion of such Restricted Payment, if any, plus an amount equal to the Fair
Market Value of the non-cash portion of such Restricted Payment.
(d) If the Board of Directors of the Company designates a
subsidiary (including a newly formed or newly acquired subsidiary) of the
Company or any of the Subsidiaries as an Unrestricted Subsidiary pursuant to
Section 4.19, all outstanding Investments by the Company and its Subsidiaries in
the subsidiary so designated will be deemed to be Restricted Payments at the
time of such designation and will reduce the amount available for Restricted
Payments under Section 4.11(a)(iii) above.
SECTION 4.12 Limitation on Indebtedness.
The Company shall not, and shall not permit any Subsidiary to, directly
or indirectly, incur any Indebtedness (including Acquired Indebtedness), unless
after giving pro forma effect to the incurrence of such Indebtedness, the
Consolidated Interest Coverage Ratio for the Determination Period preceding the
Transaction Date is at least 2.25 to 1.0. Notwithstanding the foregoing, the
Company or any Subsidiary may incur Permitted Indebtedness which such Person is
permitted thereby to incur. Any Indebtedness of a Person existing at time at
which such Person becomes a Subsidiary (whether by merger, consolidation,
acquisition or otherwise) shall be deemed to be incurred by such Subsidiary at
the time at which it becomes a Subsidiary.
.ECTION 4.13 Limitation on Subsidiary Indebtedness and Preferred Stock
The Company shall not permit any Subsidiary to, directly or
indirectly, incur any Indebtedness or issue any Preferred Stock except:
(a) Indebtedness or Preferred Stock issued to and held by the
Company or a Subsidiary, so long as any transfer of such Indebtedness
or Preferred Stock to a Person other than the Company or a Subsidiary
shall be deemed to constitute an incurrence of such Indebtedness or
Preferred Stock by the issuer thereof as of the date of such transfer;
(b) Acquired Indebtedness or Preferred Stock of a Subsidiary
issued and outstanding prior to the date on which such Subsidiary was
acquired by the Company (other than Indebtedness or Preferred Stock
issued in connection with or in anticipation of such acquisition);
(c) Indebtedness or Preferred Stock outstanding on the Issue
Date and listed in Schedule 4.13 attached hereto;
(d) Indebtedness permitted to be incurred by the first
sentence of the covenant described in Section 4.12 and Indebtedness
described in clauses (b), (c), (d), (e), (f), (g), and (h) under the
definition of "Permitted Indebtedness";
(e) Permitted Subsidiary Refinancing Indebtedness of such
Subsidiary; and
(f) Indebtedness of a Subsidiary which represents the
assumption by such Subsidiary of Indebtedness of another Subsidiary in
connection with a merger of such Subsidiaries, provided that no
Subsidiary or any successor (by way of merger) thereto existing on the
Issue Date shall assume or otherwise become responsible for any
Indebtedness of an entity which is not a Subsidiary on the Issue Date,
except to the extent that a Subsidiary would be permitted to incur such
Indebtedness under this Section 4.13.
SECTION 4.14 Limitation on Dividends and Other Payment Restrictions Affecting
Subsidiaries
The Company shall not, and shall not permit any Subsidiary,
directly or indirectly, to create, enter into any agreement with any Person or
otherwise cause or suffer to exist or become effective any consensual
encumbrance or restriction of any kind which by its terms restricts the ability
of any Subsidiary to (a) pay dividends, in cash or otherwise, or make any other
distributions on its Capital Stock to the Company or any Subsidiary, (b) pay any
Indebtedness owed to the Company or any Subsidiary, (c) make loans or advances
to the Company or any Subsidiary or (d) transfer any of its Property or assets
to the Company or any Subsidiary except any encumbrance or restriction contained
in any agreement or instrument:
(i) existing on the Issue Date;
(ii) relating to any Property or assets acquired after the
Issue Date, so long as such encumbrance or restriction relates only to
the Property or assets so acquired and is not and are not created in
anticipation of such acquisition;
(iii) relating to any Acquired Indebtedness of any Subsidiary
at the date on which such Subsidiary was acquired by the Company or any
Subsidiary (other than Indebtedness incurred in anticipation of such
acquisition);
(iv) effecting a refinancing of Indebtedness incurred pursuant
to an agreement referred to in clauses (i) through (iii) of this
Section, so long as the encumbrances and restrictions contained in any
such refinancing agreement are no more restrictive than the
encumbrances and restrictions contained in such agreements;
(v) constituting customary provisions restricting subletting
or assignment of any lease of the Company or any Subsidiary or
provisions in license agreements or similar agreements that restrict
the assignment of such agreement or any rights thereunder;
(vi) constituting restrictions on the sale or other
disposition of any Property securing Indebtedness as a result of a
Permitted Lien on such Property;
(vii) constituting any temporary encumbrance or restriction
with respect to a Subsidiary pursuant to an agreement that has been
entered into for the sale or disposition of all or substantially all of
the Capital Stock of, or Property and assets of, such Subsidiary; or
(viii) governing Senior Debt permitted to be incurred
hereunder, provided that the terms and conditions of any such
restrictions and encumbrances are not materially more restrictive than
those contained in this Indenture.
SECTION 4.15 Limitation on Asset Sales.
(a) The Company shall not engage in, and shall not permit any
Subsidiary to engage in, any Asset Sale unless (i) except in the case of an
Asset Sale resulting from the requisition of title to, seizure or forfeiture of
any Property or assets or any actual or constructive total loss or an agreed or
compromised total loss, the Company or such Subsidiary, as the case may be,
receives consideration at the time of such Asset Sale at least equal to the Fair
Market Value of the Property; (ii) at least 75% of such consideration consists
of Cash Proceeds (or the assumption of Indebtedness of the Company or such
Subsidiary relating to the Capital Stock or Property or asset that was the
subject of such Asset Sale and the unconditional release of the Company or such
Subsidiary from such Indebtedness); (iii) after giving effect to such Asset
Sale, the total non-cash consideration held by the Company from all such Asset
Sales does not exceed $10,000,000; and (iv) the Company delivers to the Trustee
an Officers' Certificate certifying that such Asset Sale complies with clauses
(i), (ii) and (iii). The Company or such Subsidiary, as the case may be, may
apply the Net Available Proceeds from each Asset Sale (x) to the acquisition of
one or more Replacement Assets, or (y) to repurchase or repay Senior Debt (with
a permanent reduction of availability in the case of revolving credit
borrowings); provided that such acquisition or such repurchase or repayment
shall be made within 365 days after the consummation of the relevant Asset Sale;
provided, further, that any such Net Available Proceeds that are applied to the
acquisition of Replacement Assets pursuant to any binding agreement to construct
any new marine vessel useful in the business of the Company or any of its
Subsidiaries shall be deemed to have been applied for such purpose within such
365-day period so long as they are so applied within 18 months of the effective
date of such agreement but no later than two years after the date of receipt of
such Net Available Proceeds.
(b) Any Net Available Proceeds from any Asset Sale that are
not used to so acquire Replacement Assets or to repurchase or repay Senior Debt
within 365 days after consummation of the relevant Asset Sale constitute "Excess
Proceeds." When the aggregate amount of Excess Proceeds exceeds $15,000,000, the
Company shall within 30 days thereafter, or at any time after receipt of Excess
Proceeds but prior to there being $15,000,000 of Excess Proceeds, the Company
may, at its option, make a pro rata offer (an "Asset Sale Offer") to all holders
of Senior Notes and holders of Senior Debt, if and to the extent the Company is
required by the instruments governing such Senior Debt to make such an offer, to
purchase Senior Notes and such Senior Debt in an aggregate amount equal to the
Excess Proceeds, at a price in cash (the "Asset Sale Offer Purchase Price")
equal to 100% of the outstanding principal of the Senior Notes plus accrued
interest and Special Interest, if any, to the date of purchase and, in the case
of such other Senior Debt, 100% of the principal amount thereof, plus accrued
and unpaid interest, if any, thereon to the date of purchase, in accordance with
the procedures set forth in this Section 4.15. Upon completion of such Asset
Sale Offer, the amount of Excess Proceeds shall be reset to zero and the Company
may use any remaining amount for general corporate purposes.
(c) The Asset Sale Offer will remain open for a period of at
least 30 days following its commencement but no longer than 60 days, except to
the extent that a longer period is required by applicable law (the "Asset Sale
Offer Period"). On the Business Day following the termination of the Asset Sale
Offer Period (the "Asset Sale Purchase Date"), the Company will purchase the
principal amount of Senior Notes required to be purchased pursuant to this
Section 4.10 (the "Asset Sale Offer Amount") or, if less than the Asset Sale
Offer amount has been so validly tendered and not properly withdrawn, all Senior
Notes validly tendered and not properly withdrawn in response to the Asset Sale
Offer. Payment for any Senior Notes so purchased will be made in the same manner
as interest payments are made on the Senior Notes. If the Asset Sale Purchase
Date is on or after a Record Date and on or before the related Interest Payment
Date, any accrued and unpaid interest and Special Interest, if any, shall be
paid to the Person in whose name a Senior Note is registered at the close of
business on such Record Date, and no additional interest (or Special Interest
(to the extent involving interest that is due and payable on such Interest
Payment Date), if any) shall be payable to Holders who tender Senior Notes
pursuant to the Asset Sale Offer.
(d) Upon the commencement of an Asset Sale Offer, the Company
shall send, by first class mail, a notice to the Trustee and each of the
Holders. The notice shall contain all instructions and materials necessary to
enable such Holders to tender Senior Notes pursuant to the Asset Sale Offer. The
Asset Sale Offer shall be made to all Holders. The notice, which shall govern
the terms of the Asset Sale Offer, shall state:
(i) that the Asset Sale Offer is being made pursuant
to this Section 4.15 and the Asset Sale Offer Period during which the
Asset Sale Offer shall remain open;
(ii) the Asset Sale Offer Amount, the Asset Sale
Offer Purchase Price and the Asset Sale Purchase Date;
(iii) that any Senior Notes which are not validly
tendered or are not otherwise accepted for payment shall continue to
accrue interest and Special Interest, if applicable;
(iv) that, unless the Company defaults in making such
payment, any Senior Note accepted for payment pursuant to the Asset
Sale Offer shall cease to accrue interest and Special Interest, if
applicable, after the Asset Sale Purchase Date;
(v) that any Holder electing to have a Senior Note
purchased pursuant to any Asset Sale Offer shall be required to
surrender the Senior Note, with the form entitled "Option of Holder to
Elect Purchase" on the reverse of the Senior Note completed, or
transfer by book-entry transfer, to the Company, a depositary, if
appointed by the Company, or a Paying Agent at the address specified in
the notice at least three days before the Asset Sale Purchase Date;
(vi) that Holders shall be entitled to withdraw their
election if the Company, the Depositary or the Paying Agent, as the
case may be, receives, no later than the expiration of the Asset Sale
Offer Period, a telegram, facsimile transmission or letter setting
forth the name of the Holder, the principal amount of the Senior Note
the Holder delivered for purchase and a statement that such Holder is
withdrawing his election to have such Senior Note purchased;
(vii) that, if the aggregate principal amount of
Senior Notes surrendered by Holders exceeds the Asset Sale Offer
Amount, the Company shall select the Senior Notes to be purchased on a
pro rata basis (with such adjustments as may be deemed appropriate by
the Company so that only Senior Notes in denominations of $1,000, or
integral multiples thereof, shall be purchased); and
(viii) that Holders whose Senior Notes were purchased
only in part shall be issued new Senior Notes equal in principal amount
to the unpurchased portion of the Senior Notes surrendered (or
transferred by book-entry transfer).
(e) On or before the Asset Sale Purchase Date, the Company
shall, to the extent lawful, (1) accept for payment, on a pro rata basis to the
extent necessary, the Asset Sale Offer Amount of Senior Notes or portions
thereof so validly tendered and not properly withdrawn pursuant to the Asset
Sale Offer, or if less than the Asset Sale Offer Amount has been so validly
tendered and not properly withdrawn, all Senior Notes validly tendered and not
properly withdrawn, (2) deposit by 12:00 noon New York City time, on such date
with the Paying Agent an amount equal to Asset Sale Offer Amount, plus accrued
and unpaid interest, and Special Interest, if any, in respect of all Senior
Notes, or portions thereof, so accepted and (3) shall deliver to the Trustee an
Officers' Certificate stating that such Senior Notes or portions thereof were
accepted for payment by the Company in accordance with the terms of this Section
4.15. The Company, the Depositary or the Paying Agent, as the case may be, shall
promptly (but in any case not later than five days after the Asset Sale Purchase
Date) mail or deliver to each tendering Holder an amount equal to the Asset Sale
Offer Purchase Price of the Senior Notes validly tendered and not properly
withdrawn by such Holder and accepted by the Company for purchase. Upon
surrender and cancellation of a Certificated Senior Note that is purchased in
part, the Company shall promptly issue and the Trustee shall authenticate and
deliver to the surrendering Holder of such Certificated Senior Note a new
Certificated Senior Note equal in principal amount to the unpurchased portion of
such surrendered Certificated Senior Note; provided that each such new
Certificated Senior Note shall be in a principal amount at Maturity of $1,000 or
an integral multiple thereof. Upon surrender of a Global Note that is purchased
in part pursuant to an Asset Sale Offer, the Paying Agent shall forward such
Global Note to the Trustee who shall make a notation on Schedule A thereof to
reduce the principal amount of such Global Note to an amount equal to the
unpurchased portion of such Global Note, as provided in Section 2.6 hereof. Any
Senior Note not so accepted shall be promptly mailed or delivered by the Company
to the Holder thereof. The Company shall publicly announce the results of the
Asset Sale offer on the Asset Sale Purchase Date. For purposes of this Section
4.15, the Trustee shall act as the Paying Agent.
(f) The Company shall comply with any applicable tender offer
rules (including, without limitation, any applicable requirements of Rule 14e-1
under the Exchange Act) in the event that an Asset Sale Offer is required under
the circumstances described herein.
SECTION 4.16 Limitation on Sale and Lease-Back Transactions.
The Company shall not, and shall not permit any Subsidiary to,
directly or indirectly, enter into, assume, guarantee or otherwise become liable
with respect to any Sale and Lease-Back Transaction unless (i) the proceeds from
such Sale and Lease-Back Transaction are at least equal to the Fair Market Value
of such Property being transferred and (ii) the Company or such Subsidiary would
have been permitted to enter into such transaction under the covenants described
in Sections 4.12, 4.13 and 4.17.
SECTION 4.17 Limitation on Liens.
The Company shall not, and shall not permit any Subsidiary to,
directly or indirectly, create, affirm, incur, assume or suffer to exist any
Liens of any kind other than Permitted Liens on or with respect to any Property
or assets of the Company or such Subsidiary or any interest therein or any
income or profits therefrom, whether owned at the Issue Date or thereafter
acquired, without effectively providing that the Senior Notes shall be secured
equally and ratably with (or prior to) the Indebtedness so secured for so long
as such obligations are so secured.
.ECTION 4.18 Limitation on Guarantees by Subsidiaries
The Company shall not permit any Subsidiary to guarantee the
payment of any Subordinated Indebtedness of the Company unless such Subsidiary
becomes a Guarantor and such guarantee is subordinated to such Guarantor's
Guarantee at least to the same extent as such Subordinated Indebtedness is
subordinated to the Senior Notes; provided that this covenant shall not be
applicable to any guarantee of any Guarantor that (i) existed at the time at
which such Person became a Subsidiary of the Company and (ii) was not incurred
in connection with, or in contemplation of, such Person's becoming a Subsidiary
of the Company.
SECTION 4.19 Unrestricted Subsidiaries.
(a) The Company may designate a subsidiary (including a newly
formed or newly acquired subsidiary) of the Company or any of its Subsidiaries
as an Unrestricted Subsidiary; provided that (i) immediately after giving effect
to the transaction, the Company could incur $1.00 of additional Indebtedness
pursuant to the first sentence of Section 4.12 and (ii) such designation is at
the time permitted under Section 4.11. Notwithstanding any provisions of this
covenant all subsidiaries of an Unrestricted Subsidiary shall be Unrestricted
Subsidiaries.
(b) The Company shall not, and shall not permit any of its
Subsidiaries to, take any action or enter into any transaction or series of
transactions that would result in a Person (other than a newly formed subsidiary
having no outstanding Indebtedness (other than Indebtedness to the Company or a
Subsidiary) at the date of determination) becoming a Subsidiary (whether through
an acquisition, the redesignation of an Unrestricted Subsidiary or otherwise)
unless, after giving effect to such action, transaction or series of
transactions on a pro forma basis, (i) the Company could incur at least $1.00 of
additional Indebtedness pursuant to the first sentence of Section 4.12 and (ii)
no Default or Event of Default would occur.
(c) Subject to the preceding provisions of this Section 4.19,
an Unrestricted Subsidiary may be redesignated as a Subsidiary. The designation
of a subsidiary as an Unrestricted Subsidiary or the designation of an
Unrestricted Subsidiary as a Subsidiary in compliance with the preceding
provisions of this Section 4.19 shall be made by the Board of Directors pursuant
to a Board Resolution delivered to the Trustee and shall be effective as of the
date specified in such Board Resolution, which shall not be prior to the date
such Board Resolution is delivered to the Trustee. Any Unrestricted Subsidiary
shall become a Subsidiary if it incurs any Indebtedness other than Non-Recourse
Indebtedness. If at any time Indebtedness of an Unrestricted Subsidiary which
was Non-Recourse Indebtedness no longer so qualifies, such Indebtedness shall be
deemed to have been incurred when such Non-Recourse Indebtedness becomes
Indebtedness.
SECTION 4.20 Limitations on Line of Business.
Neither the Company nor any of its Subsidiaries shall directly
or indirectly engage to any substantial extent in any line or lines of business
activity other than a Related Business.
.ECTION 4.21 Compliance Certificate; Notice of Default or Event of Default
(a) The Company and each Guarantor shall deliver to the
Trustee, within 90 days after the end of each fiscal year, an Officers'
Certificate (which shall be signed by Officers satisfying the requirements of
Section 314 of the Trust Indenture Act) stating that a review of the activities
of the Company and its Subsidiaries during the preceding fiscal year has been
made under the supervision of the signing Officers with a view to determining
whether the Company has kept, observed, performed and fulfilled its obligations
under this Indenture, and further stating, as to each such Officer signing such
certificate, that to the best of his or her knowledge the Company has kept,
observed, performed and fulfilled each and every covenant contained in this
Indenture and is not in default in the performance or observance of any of the
terms, provisions and conditions of this Indenture (or, if a Default or Event of
Default shall have occurred, describing all such Defaults or Events of Default
of which he or she may have knowledge and what action the Company is taking or
proposes to take with respect thereto) and that to the best of his or her
knowledge no event has occurred and remains in existence by reason of which
payments on account of the principal of, interest, if any, or Special Interest,
if any, on the Senior Notes is prohibited or if such event has occurred, a
description of the event and what action the Company is taking or proposes to
take with respect thereto.
(b) The year-end financial statements delivered pursuant to
Section 4.6(a) hereof shall be accompanied by a written statement of the
independent public accountants of the Company (who shall be a firm of
established national reputation) that in making the examination necessary for
certification of such financial statements, nothing has come to their attention
that would lead them to believe that the Company has violated any provisions of
Article 4 or Article 5 hereof (except that, such written statement need not
address the Company's compliance with the provisions of Sections 4.2, 4.5, 4.6,
4.8, 4.9, 4.10 or 4.22 hereof) or, if any such violation has occurred,
specifying the nature and period of existence thereof, it being understood that
such accountants shall not be liable directly or indirectly to any Person for
any failure to obtain knowledge of any such violation.
(c) The Company shall, so long as any of the Senior Notes are
outstanding, deliver to the Trustee, forthwith upon, but in any event within
five Business Days after, any Officer's becoming aware of any Default or Event
of Default, an Officers' Certificate specifying such Default or Event of Default
and what action the Company is taking or proposes to take with respect thereto.
(d) For purposes of this Section 4.21, compliance shall be
determined without required by any period of grace or requirement of notice
under this Indenture.
SECTION 4.22 Prohibition on Company and Guarantors Becoming an Investment
Company.
None of the Company or the Subsidiary Guarantors shall become
an "Investment Company" as defined in the Investment Company Act of 1940, as
amended.
ARTICLE 5
CONSOLIDATION, MERGER, CONVEYANCE, LEASE OR TRANSFER
SECTION 5.1 Consolidation, Merger, Conveyance, Lease or Transfer
(a) The Company shall not, in any transaction or series of
transactions, consolidate with or merge into any other Person (other than a
merger of a Wholly Owned Subsidiary into the Company in which the Company is the
continuing corporation), continue in a new jurisdiction or sell, convey, assign,
transfer, lease or otherwise dispose of all or substantially all of the Property
and assets of the Company and the Subsidiaries, taken as a whole, to any Person,
unless:
(i) either (a) the Company shall be the continuing
corporation or (b) the corporation (if other than the Company) formed
by such consolidation or into which the Company is merged, or the
Person which acquires, by sale, assignment, conveyance, transfer, lease
or disposition, all or substantially all of the Property and assets of
the Company and the Subsidiaries, taken as a whole (such corporation or
Person, the "Surviving Entity"), shall be a corporation organized and
validly existing under the laws of the United States of America, any
political subdivision thereof or any state thereof or the District of
Columbia, and shall expressly assume, by a supplemental indenture, the
due and punctual payment of the principal of (and premium, if any) and
interest (including Special Interest, if any) on all the Senior Notes
and the performance of the Company's covenants and obligations under
this Indenture;
(ii) immediately before and after giving effect to
such transaction or series of transactions on a pro forma basis
(including, without limitation, any Indebtedness incurred or
anticipated to be incurred in connection with or in respect of such
transaction or series of transactions), no Event of Default or Default
shall have occurred and be continuing or would result therefrom;
(iii) immediately after giving effect to such
transaction or series of transactions on a pro forma basis (including,
without limitation, any Indebtedness incurred or anticipated to be
incurred in connection with or in respect of such transaction or series
of transactions), the Company (or the Surviving Entity if the Company
is not continuing) shall have a Consolidated Net Worth equal to or
greater than the Consolidated Net Worth of the Company immediately
prior to such transactions; and
(iv) immediately after giving effect to any such
transaction or series of transactions on a pro forma basis as if such
transaction or series of transactions had occurred on the first day of
the Determination Period, the Company (or the Surviving Entity if the
Company is not continuing) would be permitted to incur $1.00 of
additional Indebtedness pursuant to the test described in the first
sentence of Section 4.12.
The provision of clause (iv) shall not apply to any merger or
consolidation into or with, or any such transfer of all or substantially all of
the Property and assets of the Company and the Subsidiaries taken as a whole
into, the Company.
(b) In connection with any consolidation, merger, continuance,
transfer of assets or other transactions contemplated by this provision, the
Company shall deliver, or cause to be delivered, to the Trustee, in form and
substance reasonably satisfactory to the Trustee, an Officers' Certificate and
an Opinion of Counsel, each stating that such consolidation, merger,
continuance, sale, assignment, conveyance or transfer and the supplemental
indenture in respect thereto comply with the provisions of this Indenture and
that all conditions precedent in this Indenture relating to such transactions
have been complied with.
(c) Upon any transaction or series of transactions that are of
the type described in, and are effected in accordance with, this Section 5.1,
the Surviving Entity shall succeed to, and be substituted for, and may exercise
every right and power of, the Company under this Indenture and the Senior Notes
with the same effect as if such Surviving Entity had been named as the Company
in this Indenture; and when a Surviving Person duly assumes all of the
obligations and covenants of the Company pursuant to this Indenture and the
Senior Notes, except in the case of a lease, the predecessor Person shall be
relieved of all such obligations.
SECTION 5.2 Successor Corporation Substituted.
Upon any consolidation, amalgamation or merger by the Company
with or into any other corporation, or any sale, assignment, transfer, lease,
conveyance or other disposition of all or substantially all of the assets of the
Company in accordance with Section 5.1 hereof, the successor corporation formed
by such consolidation or amalgamation into or with which the Company is merged
or to which such sale, assignment, transfer, lease, conveyance or other
disposition is made shall succeed to, and be substituted for (so that from and
after the date of such consolidation, amalgamation, merger, sale, lease,
conveyance or other disposition, the provisions of this Indenture referring to
"the Company" shall refer instead to the successor corporation and not to the
Company), and may exercise every right and power of the Company under this
Indenture with the same effect as if such successor Person had been named as the
Company herein; provided, however, that the predecessor of the Company shall not
be relieved from the obligation to pay the principal, premium, if any, and
interest and Special Interest, if any, on the Senior Notes except in the case of
a sale of all of the Company's assets that meets the requirements of Section 5.1
hereof.
If the successor corporation shall have succeeded to and been
substituted for the Company, such successor corporation may cause to be signed,
and may issue either in its own name or in the name of the Company prior to such
succession any or all of the Senior Notes issuable hereunder which theretofore
shall not have been signed by the Company and delivered to the Trustee; and,
upon the order of such successor corporation, instead of the Company, and
subject to all the terms, conditions and limitations in this Indenture
prescribed, the Trustee shall authenticate and shall deliver any Senior Notes
which previously shall have been signed and delivered by the Officers of the
Company to the Trustee for authentication, and any Senior Notes which such
successor corporation thereafter shall cause to be signed and delivered to the
Trustee for that purpose (in each instance with notations of Guarantees thereon
by the Guarantors). All of the Senior Notes so issued and so endorsed shall in
all respects have the same legal rank and benefit under this Indenture as the
Senior Notes theretofore or thereafter issued and endorsed in accordance with
the terms of this Indenture and the Guarantees as though all such Notes had been
issued and endorsed at the date of the execution hereof.
In case of any such consolidation, merger, continuance, sale,
transfer, conveyance or other disposal, such changes in phraseology and form
(but not in substance) may be made in the Senior Notes thereafter to be issued
or the Guarantees to be endorsed thereon as may be appropriate.
For all purposes of this Indenture and the Senior Notes,
Subsidiaries of any successor corporation will, upon such transaction or series
of transactions, become Subsidiaries or Unrestricted Subsidiaries as provided
pursuant to this Indenture and all Indebtedness, and all Liens on Property or
assets, of the successor corporation and its Subsidiaries immediately prior to
such transaction or series of transactions shall be deemed to have been incurred
upon such transaction or series of transactions.
ARTICLE 6.
DEFAULTS AND REMEDIES
SECTION 6.1 Events of Default.
Each of the following is an "Event of Default" hereunder:
(a) default in the payment of interest on, or Special Interest
with respect to, any Senior Note issued pursuant to this Indenture when
the same becomes due and payable, and the continuance of such default
for a period of 30 days;
(b) default in the payment of the principal of (or premium, if
any, on) any Senior Note issued pursuant to this Indenture at its
Maturity, whether upon optional redemption, required repurchase
(including pursuant to a Change of Control Offer or an Asset Sale
Offer) or otherwise or the failure to make an offer to purchase any
such Senior Note as required;
(c) the Company fails to comply with any of its covenants or
agreements contained in Sections 4.9, 4.11, 4.12, 4.13, 4.15, 4.16,
4.21(c) and 5. 1;
(d) default in the performance, or breach, of any covenant or
warranty of the Company in this Indenture (other than a covenant or
warranty addressed in clause (a), (b) or (c) above) and continuance of
such Default or breach for a period of 30 days after written notice
thereof has been given to the Company by the Trustee or to the Company
and the Trustee by Holders of at least 25% of the aggregate principal
amount at Stated Maturity of the outstanding Senior Notes;
(e) Indebtedness of the Company or any Subsidiary is not paid
when due within the applicable grace period, if any, or is accelerated
by the holders thereof and, in either case, the principal amount of
such unpaid or accelerated Indebtedness exceeds $10,000,000;
(f) the entry by a court of competent jurisdiction of one or
more final judgments against the Company or any Subsidiary in an
uninsured or unindemnified aggregate amount in excess of $5,000,000
which is not discharged, waived, appealed, stayed, bonded or satisfied
for a period of 60 consecutive days;
(g) the entry by a court having jurisdiction in the premises
of (i) a decree or order for relief in respect of the Company or any
Significant Subsidiary in an involuntary case or proceeding under U.S.
bankruptcy laws, as now or hereafter constituted, or any other
applicable Federal, state, or foreign bankruptcy, insolvency, or other
similar law or (ii) a decree or order adjudging the Company or any
Significant Subsidiary a bankrupt or insolvent, or approving as
properly filed a petition seeking reorganization, arrangement,
adjustment or composition of or in respect of the Company or any
Significant Subsidiary under U.S. bankruptcy laws, as now or hereafter
constituted, or any other applicable Federal, state or foreign
bankruptcy, insolvency, or similar law, or appointing a custodian,
receiver, liquidator, assignee, trustee, sequestrator or other similar
official of the Company or any Significant Subsidiary or of any
substantial part of the Property or assets of the Company or any
Significant Subsidiary, or ordering the winding up or liquidation of
the affairs of the Company or any Significant Subsidiary, and the
continuance of any such decree or order for relief or any such other
decree or order unstayed and in effect for a period of 60 consecutive
days;
(h) (i) the commencement by the Company or any Significant
Subsidiary of a voluntary case or proceeding under U.S. bankruptcy
laws, as now or hereafter constituted, or any other applicable Federal,
state or foreign bankruptcy, insolvency or other similar law or of any
other case or proceeding to be adjudicated a bankrupt or insolvent; or
(ii) the consent by the Company or any Significant Subsidiary to the
entry of a decree or order for relief in respect of the Company or any
Significant Subsidiary in an involuntary case or proceeding under U.S.
bankruptcy laws, as now or hereafter constituted, or any other
applicable Federal, state, or foreign bankruptcy, insolvency or other
similar law or to the commencement of any bankruptcy or insolvency case
or proceeding against the Company or any Significant Subsidiary; or
(iii) the filing by the Company or any Significant Subsidiary of a
petition or answer or consent seeking reorganization or relief under
U.S. bankruptcy laws, as now or hereafter constituted, or any other
applicable Federal, state or foreign bankruptcy, insolvency or other
similar law; or (iv) the consent by the Company or any Significant
Subsidiary to the filing of such petition or to the appointment of or
taking possession by a custodian, receiver, liquidator, assignee,
trustee, sequestrator or similar official of the Company or any
Significant Subsidiary or of any substantial part of the Property or
assets of the Company or any Significant Subsidiary, or the making by
the Company or any Significant Subsidiary of an assignment for the
benefit of creditors; or (v) the admission by the Company or any
Significant Subsidiary in writing of its inability to pay its debts
generally as they become due; or (vi) the taking of corporate action by
the Company or any Significant Subsidiary in furtherance of any such
action; or
(i) any Guarantee shall for any reason cease to be, or be
asserted by the Company or any Guarantor, as applicable, not to be, in
full force and effect (except pursuant to the release of any such
Guarantee in accordance with this Indenture).
SECTION 6.2 Acceleration.
If any Event of Default (other than an Event of Default
specified in clause (g) or (h) of Section 6.1) occurs and is continuing, then
and in every such case the Trustee or the Holders of not less than 25% of the
outstanding aggregate principal amount at Stated Maturity of the Senior Notes,
may declare the principal amount at Stated Maturity, premium, if any, and any
accrued and unpaid interest (and Special Interest, if any) on all such Senior
Notes then outstanding to be immediately due and payable by a notice in writing
to the Company (and to the Trustee if given by holders of such Senior Notes),
and upon any such declaration all amounts payable in respect of the Senior Notes
will become and be immediately due and payable. If any Event of Default
specified in clause (g) or (h) of Section 6.1 occurs, the principal amount at
Stated Maturity, premium, if any, and any accrued and unpaid interest (including
Special Interest, if any) on the Senior Notes then outstanding shall become
immediately due and payable without any declaration or other act on the part of
the Trustee or any holder of such Senior Notes. In the event of a declaration of
acceleration because an Event of Default set forth in clause (e) of Section 6.1
has occurred and is continuing, such declaration of acceleration shall be
automatically rescinded and annulled if the event of default triggering such
Event of Default pursuant to clause (e) of Section 6.1 shall be remedied or
cured or waived by the holders of the relevant Indebtedness within 30 days after
such event of default; provided that no judgment or decree for the payment of
the money due on the Senior Notes has been obtained by the Trustee as provided
in this Indenture.
After any such acceleration, but before a judgment or decree
based on acceleration, Holders of a majority in principal amount at Stated
Maturity of the outstanding Senior Notes by notice to the Company and the
Trustee may rescind an acceleration and its consequences if:
(a) the Company or any Guarantor has paid or deposited with the Trustee a
sum sufficient to pay
(i) all money paid or advanced by the Trustee hereunder and the reasonable
compensation, expenses, disbursement and advances of the Trustee, its
agents and counsel, and any other amounts due to the Trustee under Section
7.7;
(ii) all overdue installments of interest and Special Interest, if any, on, and
any other amounts due in respect of, all Senior Notes;
(iii)the principal of (and premium, if any, on) any Senior Notes that have
become due otherwise than by such declaration of acceleration and interest
thereon at the rate or rates prescribed therefor in the Senior Notes and
this Indenture; and
(iv) to the extent that payment of such interest is lawful, interest upon
Defaulted Interest at the rate or rates prescribed therefor in the Senior
Notes and this Indenture;
(b) all Events of Default, other than the nonpayment of
principal of Senior Notes which have become due solely by such declaration of
acceleration, have been cured or waived as provided in Section 6.4;
(c) the annulment of such acceleration would not conflict with
any judgment or decree of a court of competent jurisdiction; and
(d) the Company has delivered an Officers' Certificate to the
Trustee to the effect of clauses (b) and (c) of this sentence.
No such recission shall affect any subsequent Default or
impair any right consequent thereto.
SECTION 6.3 Other Remedies.
If an Event of Default occurs and is continuing, the Trustee
may pursue any available remedy to collect the payment of principal of, premium,
on, if any, any interest on, Special Interest, if any, on, and any other amounts
owing and unpaid on, the Senior Notes or to enforce the performance of any
provision of the Senior Notes or this Indenture.
The Trustee may maintain a proceeding even if it does not
possess any of the Senior Notes or does not produce any of them in the
proceeding. A delay or omission by the Trustee or any Holder of a Senior Note in
exercising any right or remedy accruing upon an Event of Default shall not
impair the right or remedy or constitute a waiver of or acquiescence in the
Event of Default. All remedies are cumulative to the extent permitted by law.
SECTION 6.4 Waiver of Past Defaults.
Subject to Section 6.7 hereof, Holders of not less than a
majority in aggregate principal amount of the then outstanding Senior Notes by
notice to the Trustee may on behalf of the Holders of all of the Senior Notes
waive an existing Default or Event of Default and its consequences hereunder,
except (i) an existing Default or Event of Default in the payment of the
principal of, premium, if any, on, or interest and Special Interest, if any, on,
the Senior Notes (including in connection with an offer to purchase) or (ii) an
existing Default or Event of Default in respect of a provision that under
Section 10.2 cannot be amended without the consent of each Holder affected
thereby. Upon any such waiver, such Default shall cease to exist, and any Event
of Default arising therefrom shall be deemed to have been cured for every
purpose of this Indenture; but no such waiver shall extend to any subsequent or
other Default or impair any right consequent thereon.
SECTION 6.5 Control By Majority.
The Holders of a majority in aggregate principal amount of the
Senior Notes then outstanding may direct the time, method and place of
conducting any proceeding for exercising any remedy available to the Trustee or
exercising any trust or power conferred on it. However, the Trustee may refuse
to follow any direction that conflicts with law or this Indenture or, subject to
Section 7.1 hereof, that the Trustee determines may be unduly prejudicial to the
rights of other Holders of Senior Notes or that may involve the Trustee in
personal liability; provided that the Trustee may take any other action deemed
by the Trustee that is not inconsistent with such direction. Prior to taking any
action hereunder, the Trustee shall be entitled to indemnification satisfactory
to it in its sole discretion against all losses and expenses caused by taking or
not taking such action.
SECTION 6.6 Limitation on Suits.
No Holder of any Senior Note shall have the right to institute
any proceeding, judicial or otherwise, with respect to this Indenture, the
Guarantees or the Senior Notes, or for the appointment of a receiver or a
trustee, or for any other remedy, unless:
(a) the Holder of a Senior Note has given to the Trustee
written notice of a continuing Event of Default;
(b) a Holder or Holders of at least 25% in principal amount of
the then outstanding Senior Notes make a written request to the Trustee
to pursue the remedy;
(c) such Holder of a Senior Note or Holders of Senior Notes
offer and, if requested, provide to the Trustee indemnity satisfactory
to the Trustee against any loss, liability or expense;
(d) the Trustee does not comply with the request within 60
days after receipt of the request and the offer and, if requested, the
provision of indemnity; and
(e) during such 60-day period the Holders of a majority in
principal amount of the Senior Notes then outstanding do not give the
Trustee a direction inconsistent with the request.
A Holder of a Senior Note may not use this Indenture to prejudice the rights of
another Holder of a Senior Note or to obtain a preference or priority over
another Holder of a Senior Note.
SECTION 6.7 Rights of Holders of Senior Notes to Receive Payment.
Notwithstanding any other provision of this Indenture, the
right of any Holder to receive payment of principal of, premium, if any, on, and
interest and Special Interest, if any, on, the Senior Notes held by such Holder,
on or after the respective due dates expressed in the Senior Note or this
Indenture (including in connection with an offer to purchase), or to bring suit
for the enforcement of any such payment on or after such respective dates, shall
not be impaired or affected without the consent of such Holder.
SECTION 6.8 Collection Suit by Trustee.
If an Event of Default specified in Section 6.1(a) or (b)
occurs and is continuing, the Trustee is authorized to recover judgment in its
own name and as trustee of an express trust against the Company for the whole
amount of principal of, premium, if any, on, interest and Special Interest, if
any, remaining unpaid on, the Senior Notes and interest on overdue principal
and, to the extent lawful, interest and such further amount as shall be
sufficient to cover the costs and expenses of collection, including the
reasonable compensation, expenses, disbursements and advances of the Trustee,
its agents and counsel, and any other amounts due to the Trustee under Section
7.7.
SECTION 6.9 Trustee May File Proofs of Claim.
The Trustee shall be entitled and empowered, without regard to
whether the Trustee or any Holder shall have made any demand or performed any
other act pursuant to the provisions of this Article and without regard to
whether the principal of the Senior Notes shall then be due and payable as
therein expressed or by declaration or otherwise, by intervention in any
proceedings relative to the Company or any Obligor upon the Senior Notes, or to
the creditors or property or assets of the Company, any Guarantor or any other
Obligor or otherwise, to take any and all actions authorized under the Trust
Indenture Act in order to have claims of the Holders and the Trustee allowed in
any such proceeding. In particular, the Trustee shall be entitled and empowered
in such instances:
(a) to file and prove a claim or claims for the whole amount
of principal (and premium, if any), interest, Special Interest, if any, and any
other amounts owing and unpaid in respect of the Senior Notes, and to file such
other papers or documents as may be necessary or advisable in order to have the
claims of the Trustee (including all amounts owing to the Trustee and each
predecessor Trustee pursuant to Section 7.7 hereof) and of the Holders allowed
in any judicial proceedings relative to the Company or other obligor upon the
Senior Notes, or to the creditors or property of the Company, any Guarantor, or
any such other Obligor,
(b) unless prohibited by applicable law and regulations, to
vote on behalf of the Holders of the Senior Notes in any election of a trustee
or a standby trustee in arrangement, reorganization, liquidation or other
bankruptcy or insolvency proceedings or Person performing similar functions in
comparable proceedings, and
(c) to collect and receive any moneys or other property or
assets payable or deliverable on any such claims, and to distribute all amounts
received with respect to the claims of the Holders and of the Trustee on their
behalf; and any trustee, receiver, or liquidator, custodian or other similar
official is hereby authorized by each of the Holders to make payments to the
Trustee, and, in the event that the Trustee shall consent to the making of
payments directly to the Holders, to pay to the Trustee such amounts as shall be
sufficient to cover all amounts owing to the Trustee and each predecessor
Trustee pursuant to Section 7.7 hereof.
Nothing herein contained shall be deemed to authorize the
Trustee to authorize or consent to or vote for or accept or adopt on behalf of
any Holder any plan of reorganization, arrangement, adjustment or composition
affecting the Senior Notes 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
except, as aforesaid, to vote for the election of a trustee in bankruptcy or
similar person.
In any proceedings brought by the Trustee (and also any
proceedings involving the interpretation of any provision of this Indenture to
which the Trustee shall be a party), the Trustee shall be held to represent all
the Holders of the Senior Notes, and it shall not be necessary to make any
Holders of the Senior Notes parties to any such proceedings.
SECTION 6.10 Priorities.
If the Trustee collects any money or property pursuant to this
Article, it shall pay out the money or property in the following order:
First: to the Trustee, its agents and attorneys for amounts due under
Section 7.7 hereof, including payment of all compensation, expense and
liabilities incurred, and all advances made, by the Trustee and the costs and
expenses of collection;
Second: to Holders of Senior Notes for amounts due and unpaid on the Senior
Notes for principal, premium, if any, interest, and Special Interest, if any,
ratably, without preference or priority of any kind, according to the amounts
due and payable on the Senior Notes for principal (premium, if any), interest,
and Special Interest , if any, respectively; and
Third: to the Company or to the Guarantors or to such other party as a
court of competent jurisdiction shall direct.
The Trustee may fix a record date and payment date for any
payment to Holders of Senior Notes pursuant to this Section 6.10. At least 15
days before such record date, the Company shall mail to each Holder and the
Trustee a notice that states the record date, the payment date and amount to be
paid. The Trustee may mail such notice in the name and at the expense of the
Company.
SECTION 6.11 Undertaking For Costs.
In any suit for the enforcement of any right or remedy under
this Indenture or in any suit against the Trustee for any action taken or
omitted by it as a Trustee, a court in its discretion may require the filing by
any party litigant in the suit of an undertaking to pay the costs of the suit,
and the court in its discretion may assess reasonable costs, including
reasonable attorneys' fees, against any party litigant in the suit, having due
regard to the merits and good faith of the claims or defenses made by the party
litigant. This Section does not apply to a suit by the Trustee, a suit by a
Holder of a Senior Note pursuant to Section 6.7 hereof, or a suit by Holders of
more than 10% in aggregate principal amount of the then outstanding Senior
Notes.
SECTION 6.12 Restoration of Rights and Remedies.
If the Trustee or any Holder of Senior Notes has instituted
any proceeding to enforce any right or remedy under this Indenture and such
proceeding has been discontinued or abandoned for any reason, or has been
determined adversely to the Trustee or to such Holder, then and in every such
case the Company, the Guarantors, the Trustee and the Holders shall, subject to
any determination in such proceeding, be restored severally and respectively to
their former positions hereunder, and thereafter all rights and remedies of the
Trustee and the Holders shall continue as though no such proceeding has been
instituted.
SECTION 6.13 Rights and Remedies Cumulative.
Except as otherwise provided in Section 2.7 hereof, no right
or remedy conferred herein, upon or reserved to the Trustee or to the Holders is
intended to be exclusive of any other right or remedy, and every right and
remedy shall, to the extent permitted by law, be cumulative and in addition to
every other right and remedy given hereunder or now or hereafter existing at law
or in equity or otherwise. The assertion or employment of any right or remedy
hereunder, or otherwise, shall not prevent the concurrent assertion or
employment of any other appropriate right or remedy.
SECTION 6.14 Delay or Omission Not Waiver.
No delay or omission of the Trustee or of any Holder of any
Senior Note to exercise any right or remedy accruing upon any Event of Default
shall impair any such right or remedy or constitute a waiver of any such Event
of Default or an acquiescence therein. Every right and remedy given by this
Article 6 or by law to the Trustee or to the Holders may be exercised from time
to time, and as often as may be deemed expedient, by the Trustee or by the
Holders, as the case may be.
ARTICLE 7
TRUSTEE
SECTION 7.1 Duties of Trustee.
(a) If an Event of Default has occurred and is continuing, the
Trustee shall exercise such of the rights and powers vested in it by this
Indenture, and use the same degree of care and skill in their exercise, as a
prudent Person would exercise or use under the circumstances in the conduct of
such Person's own affairs.
(b) Except during the continuance of an Event of Default:
(i) the duties of the Trustee shall be determined
solely by the express provisions of this Indenture and the
Trustee need perform only those duties that are specifically
set forth in this Indenture and no others, and no implied
covenants or obligations shall be read into this Indenture
against the Trustee; and
(ii) in the absence of bad faith on its part, the
Trustee may conclusively rely, as to the truth of the
statements and the correctness of the opinions expressed
therein, upon certificates or opinions furnished to the
Trustee and conforming to the requirements of this Indenture.
However, the Trustee shall examine the certificates and
opinions to determine whether or not they conform to the
requirements of this Indenture.
(c) The Trustee may not be relieved from liabilities for its
own negligent action, its own negligent failure to act, or its own willful
misconduct, except that:
(i) this paragraph does not limit the effect of
paragraph (b) of this Section;
(ii) the Trustee shall not be liable for any error of
judgment made in good faith by a Responsible Officer, unless
it is proved that the Trustee was negligent in ascertaining
the pertinent facts; and
(iii) the Trustee shall not be liable with respect to
any action it takes or omits to take in good faith in
accordance with a direction received by it pursuant to Section
6.5 hereof.
(d) Whether or not therein expressly so provided, every
provision of this Indenture that in any way relates to the Trustee is subject to
paragraphs (a), (b), and (c) of this Section.
(e) No provision of this Indenture shall require the Trustee
to expend or risk its own funds or incur any liability. The Trustee shall be
under no obligation to exercise any of its rights and powers under this
Indenture at the request of any Holders, unless such Holder shall have offered
to the Trustee security and indemnity satisfactory to it against any loss,
liability or expense.
(f) The Trustee shall not be liable for interest on any money
received by it except as the Trustee may agree in writing with the Company.
Money held in trust by the Trustee need not be segregated from other funds
except to the extent required by law.
(g) Every provision of this Indenture relating to the conduct
or affecting the liability of or affording protection to the Trustee shall be
subject to the provisions of this Section and to the provisions of the Trust
Indenture Act.
SECTION 7.2 Rights of Trustee.
(a) Subject to the provisions of Section 7.1(a) hereof, the
Trustee may rely upon any document believed by it to be genuine and to have been
signed or presented by the proper Person. The Trustee need not investigate any
fact or matter stated in the document.
(b) Before the Trustee acts or refrains from acting, it may
require an Officers' Certificate or an Opinion of Counsel or both. The Trustee
shall not be liable for any action it takes or omits to take in good faith in
reliance on such Officers' Certificate or Opinion of Counsel. The Trustee may
consult with counsel and the written advice of such counsel or any Opinion of
Counsel with respect to legal matters relating to this Indenture and the Senior
Notes shall be full and complete authorization and protection from liability in
respect of any action taken, suffered or omitted by it hereunder in good faith
and in accordance with the advice or opinion of such counsel.
(c) The Trustee may act through its attorneys and agents and
shall not be responsible for the misconduct or negligence of any attorney or
agent appointed with due care.
(d) The Trustee shall not be liable for any action it takes or
omits to take in good faith that it believes to be authorized or within the
rights or powers conferred upon it by this Indenture; provided, however, that
the Trustee's conduct does not constitute willful misconduct or negligence.
(e) The Trustee shall be under no obligation to exercise any
of the rights or powers vested in it by this Indenture at the request or
direction of any of the Holders unless such Holders shall have offered to the
Trustee reasonable security or indemnity against the costs, expenses and
liabilities that might be incurred by it in compliance with such request or
direction.
(f) Except with respect to Section 4.1 hereof, the Trustee
shall have no duty to inquire as to the performance of the Company's covenants
in Article 4 hereof. In addition, the Trustee shall not be deemed to have
knowledge of any Default or Event of Default except (i) any Event of Default
occurring pursuant to Sections 6.1(a) (except that the Trustee shall not be
deemed to have knowledge of a default in the payment of Special Interest) or
6.1(b), or (ii) any Default or Event of Default of which a Responsible Officer
of the Trustee shall have received written notification or obtained actual
knowledge; provided that the Trustee shall comply with the "automatic stay"
provisions contained in U.S. bankruptcy laws, if applicable.
(g) Prior to the occurrence of an Event of Default hereunder
and after the curing and waiving of all Events of Default, the Trustee shall not
be bound to make any investigation into the facts or matters stated in any
resolution, certificate, statement, instrument, opinion, report, notice,
request, direction, consent, order, bond, debenture, note, other evidence of
indebtedness or other paper or document unless requested in writing to do so by
the Holders of not less than a majority in aggregate principal amount of the
Senior Notes then outstanding; provided that if the payment within a reasonable
time to the Trustee of the costs, expenses or liabilities likely to be incurred
by it in the making of such investigation is, in the opinion of the Trustee, not
reasonably assured to the Trustee by the security afforded to it by the terms of
this Indenture, the Trustee may require reasonable indemnity against such
expenses or liabilities as a condition to proceeding; the reasonable expenses of
every such examination shall be paid by the Company or, if advanced by the
Trustee, shall be repaid by the Company upon demand. The Trustee shall not be
bound to ascertain or inquire as to the performance or observance of any
covenants, conditions, or agreements on the part of the Company, except as
otherwise set forth herein, but the Trustee may, in its discretion, make such
further inquiry or investigation into such facts or matters as it may see fit
and if the Trustee shall determine to make such further inquiry or
investigation, it shall be entitled to examine the books, records and premises
of the Company personally or by agent or attorney.
(h) The Trustee shall not be required to give any bond or
surety in respect of the performance of its powers and duties hereunder.
(i) The permissive rights of the Trustee to do things
enumerated in this Indenture shall not be construed as a duty.
SECTION 7.3 Individual Rights of Trustee.
The Trustee in its individual or any other capacity may become
the owner or pledgee of Senior Notes and may otherwise deal with the Company or
any Affiliate of the Company with the same rights it would have if it were not
Trustee. However, in the event that the Trustee acquires any conflicting
interest (as defined in the Trust Indenture Act) it must eliminate such conflict
within 90 days, apply to the Commission for permission to continue as Trustee or
resign. Any Agent may do the same with like rights and duties. The Trustee is
also subject to Sections 7.10 and 7.11 hereof.
SECTION 7.4 Trustee's Disclaimer.
The Trustee shall not be responsible for and makes no
representation as to the validity or adequacy of this Indenture, any Guarantee
or the Senior Notes, it shall not be accountable for the Company's use of the
proceeds from the Senior Notes or any money paid to the Company or upon the
Company's direction under any provision of this Indenture, it shall not be
responsible for the use or application of any money received by any Paying Agent
other than the Trustee, and it shall not be responsible for any statement or
recital herein or any statement in the Senior Notes or any other document in
connection with the sale of the Senior Notes or pursuant to this Indenture other
than its certificate of authentication.
SECTION 7.5 Notice of Defaults.
If a Default or Event of Default occurs and is continuing and
if it is known to the Trustee, the Trustee shall mail to Holders of Senior Notes
a notice of the Default or Event of Default within 90 days after it occurs.
Except in the case of a Default or Event of Default in payment of principal of,
premium, if any, or interest on any Senior Note (including payments pursuant to
the mandatory repurchase provisions of such Senior Notes, if any), the Trustee
may withhold the notice if and so long as a committee of its Responsible
Officers in good faith determines that withholding the notice is in the
interests of the Holders of the Senior Notes.
SECTION 7.6 Reports by Trustee to Holders of the Senior Notes.
Within 60 days after each May 15 beginning with the May 15
following the date of this Indenture, and for so long as Senior Notes remain
outstanding, the Trustee shall mail to the Holders of the Senior Notes a brief
report dated as of such reporting date that complies with TIA ss. 313(a) (but if
no event described in TIA ss. 313(a) has occurred within the twelve months
preceding the reporting date, no report need be transmitted). The Trustee also
shall comply with TIA ss. 313(b). The Trustee shall also transmit by mail all
reports as required by TIA ss. 313(c).
A copy of each report at the time of its mailing to the
Holders of Senior Notes shall be mailed to the Company and filed with the
Commission and each stock exchange on which the Senior Notes are listed in
accordance with TIA ss. 313(d). The Company shall promptly notify the Trustee
whenever the Senior Notes become listed on any stock exchange and of any
delisting thereof.
SECTION 7.7 Compensation and Indemnity.
The Company shall pay to the Trustee promptly from time to
time such compensation for its acceptance of this Indenture and services
hereunder as agreed to by the parties from time to time. The Trustee's
compensation shall not be limited by any law on compensation of a trustee of an
express trust. The Company shall reimburse the Trustee promptly upon request for
all reasonable disbursements, advances and expenses incurred or made by it,
including the costs of collection, in addition to the compensation for its
services. Such expenses shall include the reasonable compensation, disbursements
and expenses of the Trustee's agents and counsel.
The Company shall indemnify the Trustee against any and all
losses, liabilities or expenses (including reasonable attorneys' fees) incurred
by it arising out of or in connection with the acceptance or administration of
its duties under this Indenture, including the costs and expenses of enforcing
this Indenture against the Company (including this Section 7.7) and defending
itself against any claim (whether asserted by the Company or any Holder or any
other Person) or liability in connection with the exercise or performance of any
of its powers or duties hereunder, except to the extent any such loss, liability
or expense may be attributable to its negligence or bad faith. The Trustee shall
notify the Company promptly of any claim for which it may seek indemnity.
Failure by the Trustee to so notify the Company shall not relieve the Company of
its obligations hereunder. The Company shall defend the claim and the Trustee
shall cooperate in the defense. The Trustee may have separate counsel and the
Company shall pay the reasonable fees and expenses of such counsel. The Company
need not pay for any settlement made without its consent, which consent shall
not be unreasonably withheld.
The obligations of the Company under this Section 7.7 shall
survive the resignation or removal of the Trustee and the satisfaction and
discharge of this Indenture.
To secure the Company's payment obligations in this Section,
the Trustee shall have a Lien prior to the Senior Notes on all money or property
held or collected by the Trustee, except that held in trust to pay principal and
interest on particular Senior Notes. Such Lien shall be a Permitted Lien and
survive the satisfaction and discharge of this Indenture.
When the Trustee incurs expenses or renders services after an
Event of Default specified in Sections 6.1(g) or 6.1(h) hereof occurs, the
expenses and the compensation for the services (including the fees and expenses
of its agents and counsel) are intended to constitute expenses of administration
under any applicable bankruptcy laws.
The Trustee shall comply with the provisions of TIA ss.
313(b)(2) to the extent applicable.
SECTION 7.8 Replacement of Trustee.
A resignation or removal of the Trustee and appointment of a
successor Trustee shall become effective only upon the successor Trustee's
acceptance of appointment as provided in this Section.
The Trustee may resign in writing at any time and be
discharged from the trust hereby created by so notifying the Company. The
Holders of Senior Notes of a majority in principal amount of the then
outstanding Senior Notes may remove the Trustee by so notifying the Trustee and
the Company in writing. If at any time:
(a) the Trustee shall fail to comply with Section 310(b) of
the Trust Indenture Act after written request thereof by the Company or
by any Holder who has been a bona fide Holder of a Senior Note for at
least six months, unless the Trustee's duty to resign is stayed in
accordance with the provisions of TIA Section 310(b); or
(b) the Trustee shall cease to be eligible under Section 7.10
hereof and shall fail to resign after written request therefor by the
Company or by any Holder; or
(c) the Trustee shall become incapable of acting or a decree
or order for relief by a court having jurisdiction in the premises
shall have been entered in respect of the Trustee in an involuntary
case under the U.S. bankruptcy laws, as now or hereinafter constituted,
or a decree or order by a court having jurisdiction in the premises
shall have been entered for the appointment of a receiver, custodian,
liquidator, assignee, trustee, sequestrator (or other similar official)
of the Trustee or of its property and assets or affairs, or any public
officer shall take charge or control of the Trustee or of its property
and assets or affairs for the purpose of rehabilitation, conservation,
winding-up or liquidation; or
(d) the Trustee shall commence a voluntary case under the U.S.
bankruptcy laws, as now or hereafter constituted, or shall consent to
the appointment of or taking possession by a receiver, custodian,
liquidator, assignee, trustee, sequestrator (or other similar official)
of the Trustee or of its property and assets or affairs, or shall make
an assignment for the benefit of creditors, or shall admit in writing
its inability to pay its debts generally as they become due, or shall
take corporate action in furtherance of any such action; or
(e) the Trustee becomes incapable of acting,
then, in any such case, (i) the Company by a Board Resolution may remove the
Trustee with respect to the Senior Notes, or (ii) subject to Section 6.11
hereof, any Holder who has been a bona fide Holder of a Senior Note for at least
six months may, on behalf of such Holder and all others similarly situated,
petition any court of competent jurisdiction for the removal of the Trustee and
the appointment of a successor Trustee for the Securities.
If the Trustee resigns or is removed or if a vacancy exists in
the office of Trustee for any reason, the Company shall promptly appoint a
successor Trustee. Within one year after the successor Trustee takes office, the
Holders of a majority in principal amount of the then outstanding Senior Notes
may appoint a successor Trustee to replace the successor Trustee appointed by
the Company.
If a successor Trustee does not take office within 60 days
after the retiring Trustee notifies the Company of its resignation is removed,
the retiring Trustee, the Company, or the Holders of Senior Notes of at least
10% in principal amount of the then outstanding Senior Notes may petition any
court of competent jurisdiction for the appointment of a successor Trustee.
If the Trustee, after written request by any Holder of a
Senior Note who has been a Holder of a Senior Note for at least six months,
fails to comply with Section 7.10, such Holder of a Senior Note may petition any
court of competent jurisdiction for the removal of the Trustee and the
appointment of a successor Trustee.
A successor Trustee shall deliver a written acceptance of its
appointment to the retiring Trustee and to the Company. Thereupon, the
resignation or removal of the retiring Trustee shall become effective, and the
successor Trustee shall have all the rights, powers and duties of the Trustee
under this Indenture. The successor Trustee shall mail a notice of its
succession to Holders of the Senior Notes. The retiring Trustee shall promptly
transfer all property held by it as Trustee to the successor Trustee, provided
all sums owing to the Trustee hereunder have been paid and subject to the Lien
provided for in Section 7.7 hereof. Notwithstanding replacement of the Trustee
pursuant to this Section 7.8, the Company's obligations under Section 7.7 hereof
shall continue for the benefit of the retiring Trustee.
SECTION 7.9 Successor Trustee by Merger, Etc.
If the Trustee consolidates, merges or converts into, or
transfers all or substantially all of its corporate trust business to, another
corporation, the successor corporation without any further act shall be the
successor Trustee.
In case at the time such successor or successors by merger,
conversion or consolidation to the Trustee shall succeed to the trusts created
by this Indenture any of the Senior Notes 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 Senior Notes so
authenticated; and in case at that time any of the Senior Notes shall not have
been authenticated, any successor to the Trustee may authenticate such Senior
Notes either in the name of any predecessor hereunder or in the name of the
successor to the Trustee; and in all such cases such certificates shall have the
full force which it is anywhere in the Senior Notes or in this Indenture
provided that the certificate of the Trustee shall have.
SECTION 7.10 Eligibility; Disqualification.
There shall at all times be a Trustee hereunder that is a
corporation organized and doing business under the laws of the United States of
America or of any state thereof that is authorized under such laws to exercise
corporate trustee power, that is subject to supervision or examination by
federal or state authorities and that has a combined capital and surplus of at
least $100,000,000 as set forth in its most recent published annual report of
condition.
This Indenture shall always have a Trustee who satisfies the
requirements of TIA ss. 310(a)(1), (2) and (5). The Trustee shall comply with
TIA Section 310(b); provided, however, that there shall be excluded from the
operation of TIA Section 310(b)(1) any indenture or indentures under which other
securities or certificates of interest or participation in other securities of
the Company are outstanding if the requirements for such exclusion set forth in
TIA Section 310(b)(1) are met.
SECTION 7.11 Preferential Collection of Claims Against the Company.
The Trustee is subject to TIA ss.311(a), excluding any
creditor relationship listed in TIA ss.311(b). A Trustee who has resigned or
been removed shall be subject to TIA ss.311(a) to the extent indicated therein.
ARTICLE 8
SATISFACTION AND DISCHARGE
SECTION 8.1 Satisfaction and Discharge.
This Indenture shall upon the request of the Company cease to
be of further effect (except as to surviving rights of registration of transfer
or exchange of Senior Notes herein expressly provided for, the Company's
obligations under Sections 7.7 and 8.4 hereof, the Company's rights of optional
redemption under Article 3 hereof, and the Company's, the Trustee's and the
Paying Agent's obligations under Section 8.3 hereof) and the Trustee, at the
expense of the Company, shall execute proper instruments acknowledging
satisfaction and discharge of this Indenture when:
(a) either
(i) all outstanding Notes have been delivered to the
Trustee for cancellation, or
(ii) all such Notes not therefore delivered to the
Trustee for cancellation have become due and payable, will become due
and payable within one year or are to be called for redemption within
one year under irrevocable 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 has irrevocably deposited
or caused to be deposited with the Trustee funds in an amount
sufficient to pay and discharge the entire indebtedness on the Senior
Notes not theretofore delivered to the Trustee for cancellation, for
principal of (premium, if any, on) and interest (including Special
Interest, if any) to the date of deposit or Maturity or date of
redemption;
(b) the Company has paid or caused to be paid all sums then
due and payable by the Company under this Indenture; and
(c) the Company has delivered an Officers' Certificate and an
Opinion of Counsel relating to compliance with the conditions set forth in this
Indenture.
Notwithstanding the satisfaction and discharge of this
Indenture, the Company's obligations in Sections 2.3, 2.4, 2.6, 2.7, 2.11, 2.13,
7.7, 7.8, 8.2, 8.3 and 8.4, and the Trustee's and Paying Agent's obligations in
Section 8.3 shall survive until the Senior Notes are no longer outstanding.
Thereafter, only the Company's obligations in Sections 7.7, 8.3 and 8.4 and the
Trustee's and Paying Agent's obligations in Section 8.3 shall survive.
In order to have money available on a payment date to pay
principal (and premium, if any, on) or interest (and Special Interest, if any)
on the Senior Notes, the U.S. Government Obligations shall be payable as to
principal (and premium, if any) or interest (and Special Interest, if any) at
least one Business Day before such payment date in such amounts as will provide
the necessary money. U.S. Government Obligations shall not be callable at the
issuer's option.
SECTION 8.2 Application of Trust Money.
All money deposited with the Trustee pursuant to Section 8.1
shall be held in trust and, at the written direction of the Company, be invested
prior to maturity in non-callable U.S. Government Obligations, and applied by
the Trustee in accordance with the provisions of the Senior Notes and this
Indenture, to the payment, either directly or through any Paying Agent as the
Trustee may determine, to the Persons entitled thereto, of the principal (and
premium, if any) and interest (and Special Interest, if any) for the payment of
which money has been deposited with the Trustee; but such money need not be
segregated from other funds except to the extent required by law.
SECTION 8.3 Repayment of the Company.
The Trustee and the Paying Agent shall promptly pay to the
Company upon written request any excess money or securities held by them at any
time.
The Trustee and the Paying Agent shall pay to the Company upon
written request any money held by them for the payment of principal or interest
that remains unclaimed for two years after the date upon which such payment
shall have become due; provided that the Company shall have either caused notice
of such payment to be failed to each Holder of the Senior Notes entitled thereto
no less than 30 days prior to such repayment or within such period shall have
published such notice in a financial newspaper of widespread circulation
published in The City of New York, including, without limitation, The Wall
Street Journal. After payment to the Company, Holders entitled to the money must
look to the Company for payment as general creditors unless an applicable
abandoned property law designates another Person, and all liability of the
Trustee and such Paying Agent with respect to such money shall cease.
SECTION 8.4 Reinstatement.
If the Trustee or Paying Agent is unable to apply any money or
U.S. Government Obligations in accordance with Section 8.1 by reason of any
legal proceeding or by reason of any order or judgment of any court of
governmental authority enjoining, restraining or otherwise prohibiting such
application, the Company's and Guarantors' obligations under this Indenture, the
Senior Notes and the Guarantees shall be revived and reinstated as though no
deposit has occurred pursuant to Section 8.1 until such time as the Trustee or
Paying Agent is permitted to apply all such money or Government Securities in
accordance with Section 8.2; provided, however, that if the Company or the
Guarantors have made any payment of interest on or principal of any Senior Notes
because of the reinstatement of their Obligations, the Company or such
Guarantors shall be subrogated to the rights of the Holders of such Senior Notes
to receive such payment from the money or U.S. Government Obligations held by
the Trustee or Paying Agent.
ARTICLE 9
DEFEASANCE AND COVENANT DEFEASANCE
.ECTION 9.1 Option to Effect Defeasance or Covenant Defeasance
The Company may, at the option of its Board of Directors
evidenced by a Board Resolution, at any time, elect to have either Section 9.2
or 9.3 hereof be applied to all outstanding Senior Notes upon compliance with
the conditions set forth below in this Article 9.
SECTION 9.2 Defeasance and Discharge.
Upon the Company's exercise under Section 9.1 hereof of the
option applicable to this Section 9.2, the Company and the Guarantors shall,
subject to the satisfaction of the conditions set forth in Section 9.4 hereof,
be deemed to have been discharged from their respective obligations with respect
to all outstanding Senior Notes, this Indenture and the Guarantees on the date
the conditions set forth below are satisfied (hereinafter, "Defeasance"). For
this purpose, Defeasance means that the Company shall be deemed to have paid and
discharged the entire Indebtedness represented by the outstanding Senior Notes
and the Company and the Guarantors shall be deemed to have satisfied all of
their obligations under such Senior Notes, this Indenture and the Guarantees
(and the Trustee, at the expense of the Company, shall execute proper
instruments acknowledging the same), subject to the following which shall
survive until otherwise terminated or discharged hereunder:
(a) the rights of Holders of such Senior Notes to receive,
solely from the trust fund described in Section 9.4 hereof and as more fully set
forth in Section 9.4, payments in respect of the principal and of and any
premium and interest (including Special Interest, if any), on such Senior Notes
when payments are due,
(b) the Company's obligations with respect to such Senior
Notes under Sections 2.6, 2.8, 2.10, and 4.2 hereof,
(c) the rights, powers, trusts, duties and immunities of the
Trustee under this Indenture,
(d) Article 3 hereof, and
(e) this Article 9.
Subject to compliance with this Article 9, the Company may exercise its option
under this Section 9.2 notwithstanding the prior exercise of its option under
Section 9.3 hereof.
SECTION 9.3 Covenant Defeasance.
Upon the Company's exercise under Section 9.1 hereof of the
option applicable to this Section 9.3, (i) the Company and the Guarantors shall,
subject to the satisfaction of the conditions set forth in Section 9.4 hereof,
be released from its obligations under the covenants contained in Sections 4.4,
4.6, 4.7, 4.9, 4.10, 4.11, 4.12, 4.13, 4.14, 4.15, 4.16, 4.17, 4.18, 4.19 and
4.20 and Section 5.1(iv) hereof and any covenant added to this Indenture
subsequent to the Issue Date pursuant to Section 10.1 hereof with respect to the
outstanding Senior Notes and (ii) the occurrence of any event specified in
Section 6.1(c) or 6.1(d) hereof, with respect to any of Sections 4.4, 4.6, 4.7,
4.9, 4.10, 4.11, 4.12, 4.12, 4.14, 4.15, 4.16, 4.17, 4.18, 4.19 and 4.20 and
Section 5.1(iv) hereof, and any covenant added to this Indenture subsequent to
the Issue Date pursuant to Section 10.1 hereof, shall be deemed not to be or
result in an Event of Default, in each case with respect to such Senior Notes as
provided in this Section 9.3 on and after the date on which the conditions set
forth in Section 9.4 hereof are satisfied, and the Senior Notes shall thereafter
be deemed not "outstanding" for the purposes of any direction, waiver, consent
or declaration or act of Holders (and the consequences of any thereof) in
connection with such covenants, but shall continue to be deemed "outstanding"
for all other purposes hereunder (it being understood that such Senior Notes
shall not be deemed outstanding for accounting purposes). For this purpose,
"Covenant Defeasance" means that, with respect to the outstanding Senior Notes,
the Company and the Guarantors may omit to comply with and shall have no
liability in respect of any term, condition or limitation set forth in any such
covenant (to the extent so specified in the case of Section 6.1(c) or 6.1(d)
hereof), whether directly or indirectly, by reason of any reference elsewhere
herein to any such covenant or by reason of any reference in any such covenant
to any other provision herein or in any other document and such omission to
comply shall not constitute a Default or an Event of Default under Section 6.1
hereof, but, except as specified above, the remainder of this Indenture, the
Guarantees and the Senior Notes shall be unaffected thereby.
SECTION 9.4 Conditions to Defeasance or Covenant Defeasance.
The following shall be the conditions to the application of
either Section 9.2 or 9.3 hereof to the outstanding Senior Notes:
In order to exercise either Defeasance or Covenant Defeasance:
(a) the Company shall irrevocably have deposited or caused to
be deposited with the Trustee as trust funds in trust for the purpose of making
the following payments, specifically pledged as security for, and dedicated
solely to the benefits of the Holders of such Senior Notes, (i) money in an
amount, or (ii) U.S. Government Obligations which through the scheduled payment
of principal and interest in respect thereof in accordance with their terms will
provide, not later than one Business Day before the due date of any payment,
money in an amount, or (iii) a combination thereof, in each case sufficient, in
the opinion of a nationally recognized firm of independent public accountants
expressed in a written certification thereof delivered to the Trustee, to pay
and discharge the principal of (premium, if any, on) and any installment of
interest on and Special Interest, if any, on the Senior Notes at the Maturity
thereof or Redemption Date therefor in accordance with the terms of this
Indenture and the Senior Notes.
(b) in the case of an election under Section 9.2 hereof, the
Company shall have delivered to the Trustee an Opinion of Counsel confirming
that (A) the Company has received from, or there has been published by, the
Internal Revenue Service a ruling or (B) since the date of this Indenture, there
has been a change in the applicable U.S. federal income tax law, in either case
to the effect that, and based thereon such Opinion of Counsel shall confirm
that, the Holders of the outstanding Senior Notes will not recognize income,
gain or loss for U.S. federal income tax purposes as a result of such Defeasance
and will be subject to U.S. 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;
(c) in the case of an election under Section 9.3 hereof, the
Company shall have delivered to the Trustee an Opinion of Counsel confirming
that the Holders of the outstanding Senior Notes will not recognize income, gain
or loss for U.S. federal income tax purposes as a result of such Covenant
Defeasance and will be subject to U.S. federal income tax on the same amounts,
in the same manner and at the same times as would have been the case if such
Covenant Defeasance had not occurred;
(d) no Default or Event of Default shall have occurred and be
continuing on the date of such deposit (other than a Default or Event of Default
resulting from the incurrence of Indebtedness all or a portion of the proceeds
of which will be used to defease the Senior Notes pursuant to this Article 9
concurrently with such incurrence) or insofar as Sections 6.1(g) or 6.1(h)
hereof is concerned, shall have occurred at any time on or prior to the 91st day
after the date of such deposit and be continuing on such 91st day (it being
understood that this condition shall not be deemed satisfied until after such
91st day);
(e) such Defeasance or Covenant Defeasance shall not result in
a breach or violation of, or constitute a default under, any material agreement
or instrument (other than this Indenture) to which the Company or any of its
Subsidiaries is a party or by which the Company or any of its Subsidiaries is
bound;
(f) such Defeasance or Covenant Defeasance shall not cause the
Trustee to have a conflicting interest within the meaning of the Trust Indenture
Act (assuming for the purpose of this clause (f) that all Senior Notes are in
default within the meaning of such Act);
(g) such Defeasance or Covenant Defeasance shall not result in
the trust arising from such deposit constituting an investment company within
the meaning of the Investment Company Act of 1940, as amended, unless such trust
shall be registered under such Act or exempt from registration thereunder;
(h) the Company shall have delivered to the Trustee an Opinion
of Counsel to the effect that on the 91st day following the deposit, the trust
funds will not be subject to the effect of any applicable bankruptcy,
insolvency, reorganization or similar laws affecting creditors' rights
generally;
(i) the Company shall have delivered to the Trustee an
Officers' Certificate stating that the deposit was not made by the Company with
the intent of preferring the Holders over any other creditors of the Company or
with the intent of defeating, hindering, delaying or defrauding any other
creditors of the Company; and
(j) the Company shall have delivered to the Trustee an
Officers' Certificate and an Opinion of Counsel, each stating that all
conditions precedent provided for or relating to the Defeasance or the Covenant
Defeasance have been complied with.
SECTION 9.5 Deposited Money and U.S. Government Obligations To Be Held in
Trust; Other Miscellaneous Provisions.
Subject to Section 9.6 hereof, all money and U.S. Government
Obligations (including the proceeds thereof) deposited with the Trustee (or
other qualifying trustee, collectively for purposes of this Section 9.5, the
"Trustee") pursuant to Section 9.4 hereof in respect of the outstanding Senior
Notes shall be held in trust and applied by the Trustee, in accordance with the
provisions of such Senior Notes and this Indenture, to the payment, either
directly or through any such Paying Agent as the Trustee may determine, to the
Holders of such Senior Notes of all sums due and to become due thereon in
respect of principal, premium, if any, and interest (including Special Interest,
if any), but such money need not be segregated from other funds except to the
extent required by law.
The Company shall pay and indemnify the Trustee against any
tax, fee or other charge imposed on or assessed against the cash or U.S.
Government Obligations deposited pursuant to Section 9.4 hereof or the principal
and interest received in respect thereof.
Anything in this Article 9 to the contrary notwithstanding,
the Trustee shall deliver or pay to the Company from time to time upon the
request of the Company any money or U.S. Government Obligations held by it as
provided in Section 9.4 hereof which, in the opinion of a nationally recognized
firm of independent public accountants expressed in a written certification
thereof delivered to the Trustee (which may be the opinion delivered under
Section 9.4(a) hereof), are in excess of the amount thereof that would then be
required to be deposited to effect an equivalent Defeasance or Covenant
Defeasance.
SECTION 9.6 Repayment to 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, Special Interest, if any, or interest on any Senior Note and remaining
unclaimed for two years after such principal, and premium, if any Special
Interest, if any, or interest has become due and payable shall be paid to the
Company on its request or (if then held by the Company) shall be discharged from
such trust; and the Holder of such Senior Note shall thereafter, as a 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 30 days from the date of such notification or publication, any
unclaimed balance of such money then remaining will be repaid to the Company.
SECTION 9.7 Reinstatement.
If the Trustee or Paying Agent is unable to apply any United
States dollars or U.S. Government Obligations in accordance with Section 9.2 or
9.3 hereof, as the case may be, by reason of any order or judgment of any court
or governmental authority enjoining, restraining or otherwise prohibiting such
application, then the Company's obligations under this Indenture and the Senior
Notes shall be revived and reinstated as though no deposit had occurred pursuant
to Section 9.2 or 9.3 hereof until such time as the Trustee or Paying Agent is
permitted to apply all such money in accordance with Section 9.2 or 9.3 hereof,
as the case may be; provided, however, that, if the Company makes any payment of
principal of, premium, if any, interest, Special Interest, if any, on any Senior
Note following the reinstatement of its obligations, the Company shall be
subrogated to the rights of the Holders of such Senior Notes to receive such
payment from the money held by the Trustee or Paying Agent.
ARTICLE 10
AMENDMENT, SUPPLEMENT AND WAIVER
SECTION 10.1 Without Consent of Holders of Senior Notes.
Notwithstanding Section 9.2 of this Indenture, the Company,
the Guarantors and the Trustee may amend or supplement this Indenture or the
Senior Notes without the consent of any Holder of a Senior Note:
(a) to evidence the succession of another Person to the
Company and the Guarantors and the assumption by such successor of the covenants
and Obligations of the Company under this Indenture and contained in the Senior
Notes and of the Guarantors contained in this Indenture and the Guarantees,
(b) to add to the covenants of the Company, for the benefit of
Holders, or to surrender any right or power conferred upon the Company or the
Guarantors by this Indenture,
(c) to add any additional Events of Default,
(d) to provide for uncertificated Notes in addition to or
in place of Certificated Notes,
(e) to evidence and provide for the acceptance of appointment
under this Indenture by the successor Trustee,
(f) to secure the Senior Notes and/or the Guarantees,
(g) to cure any ambiguity, to correct or supplement any
provision in this Indenture which may be inconsistent with any other provision
herein or to add any other provisions with respect to matters or questions
arising under this Indenture, provided that such actions will not adversely
affect the interests of Holders in any material respect,
(h) to add or release any Guarantor pursuant to the terms
of this Indenture, or
(i) to comply with the requirements of the Commission to
effect or maintain the qualification of the Indenture under the Trust Indenture
Act.
Upon the request of the Company accompanied by a Board
Resolution authorizing the execution of any such amended or supplemental
Indenture, and upon receipt by the Trustee of the documents described in Section
10.7 hereof, the Trustee shall join with the Company in the execution of any
amended or supplemental Indenture authorized or permitted by the terms of this
Indenture and to make any further appropriate agreements and stipulations that
may be therein contained, but the Trustee shall not be obligated to enter into
such amended or supplemental Indenture that affects its own rights, duties or
immunities under this Indenture or otherwise.
SECTION 10.2 With Consent of Holders of Senior Notes.
Except as provided below in this Section 10.2, the Company,
the Guarantors and the Trustee may amend or supplement this Indenture and the
Senior Notes may be amended or supplemented with the consent of the Holders of
at least a majority in aggregate principal amount of the Senior Notes then
outstanding (including consents obtained in connection with a tender offer or
exchange offer for the Senior Notes), and, subject to Sections 6.4 and 6.7
hereof, any existing Default or Event of Default (other than a Default or Event
of Default in the payment of the principal of, premium, if any, or, interest on,
or Special Interest, if any, on, the Senior Notes, except a payment default
resulting from an acceleration that has been rescinded) or compliance with any
provision of this Indenture or the Senior Notes may be waived with the consent
of the Holders of a majority in aggregate principal amount of the then
outstanding Senior Notes (including consents obtained in connection with a
tender offer or exchange offer for the Senior Notes).
Upon the request of the Company accompanied by a Board
Resolution authorizing the execution of any such amended or supplemental
Indenture, and upon the filing with the Trustee of evidence satisfactory to the
Trustee of the consent of the Holders of Senior Notes as aforesaid, and upon
receipt by the Trustee of the documents described in Section 10.7 hereof, the
Trustee shall join with the Company and the Guarantors in the execution of such
amended or supplemental Indenture unless such amended or supplemental Indenture
affects the Trustee's own rights, duties or immunities under this Indenture or
otherwise, in which case the Trustee may in its discretion, but shall not be
obligated to, enter into such amended or supplemental Indenture.
It shall not be necessary for the consent of the Holders of
Senior Notes under this Section 10.2 to approve the particular form of any
proposed amendment or waiver, but it shall be sufficient if such consent
approves the substance thereof.
After an amendment, supplement or waiver under this Section
becomes effective, the Company shall mail to the Holders of Senior Notes
affected thereby a notice briefly describing the amendment, supplement or
waiver. Any failure of the Company to mail such notice, or any defect therein,
shall not, however, in any way impair or affect the validity of any such amended
or supplemental Indenture or waiver. Subject to Sections 6.4 and 6.7 hereof, the
Holders of a majority in aggregate principal amount of the Senior Notes then
outstanding may waive compliance in a particular instance by the Company with
any provision of this Indenture or the Senior Notes. However, without the
consent of each Holder affected, an amendment or waiver may not (with respect to
any Senior Notes held by a non-consenting Holder):
(a) change the Stated Maturity of the principal of, or any
installment of interest on, any Senior Note, or reduce the principal amount
thereof (or premium, if any), or the interest thereon that would be due and
payable upon Maturity thereof, or change the place of payment where, or the coin
or currency in which, any Senior Note or any premium or interest thereon is
payable, or impair the right to institute suit for the enforcement of any such
payment on or after the Stated Maturity thereof;
(b) reduce the percentage in principal amount at Stated
Maturity of the outstanding Senior Notes, the consent of whose Holders is
necessary for any such supplemental indenture or required for any waiver of
compliance with certain provisions of this Indenture, or certain Defaults
thereunder;
(c) modify the Obligations of the Company to make offers to
purchase Senior Notes upon a Change of Control or from the proceeds of Asset
Sales;
(d) subordinate in right of payment, or otherwise subordinate,
the Senior Notes or the Guarantees to any other Indebtedness;
(e) amend, supplement or otherwise modify the provisions of
this Indenture relating to Guarantees or
(f) make any change in Sections 6.4 or 6.7 or modify
any of the provisions of this Section 10.2 (except to increase any percentage
set forth herein).
Upon the request of the Company accompanied by a Board
Resolution authorizing the execution of any such amended or supplemental
Indenture, and upon the filing with the Trustee of evidence satisfactory to the
Trustee of the consent of the Holders of Senior Notes as aforesaid, and upon
receipt by the Trustee of the documents described in Section 7.2 hereof, the
Trustee shall join with the Company in the execution of such amended or
supplemental Indenture unless such amended or supplemental Indenture affects the
Trustee's own rights, duties or immunities under this Indenture or otherwise, in
which case the Trustee may in its discretion, but shall not be obligated to,
enter into such amended or supplemental Indenture.
It shall not be necessary for the consent of the Holders of
Senior Notes under this Section 10.2 to approve the particular form of any
proposed amendment or waiver, but it shall be sufficient if such consent
approves the substance thereof.
SECTION 10.3 Effect of Supplemental Indentures.
Upon the execution of any supplemental indenture under this
Article 10, 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 Senior Notes theretofore or thereafter authenticated and
delivered hereunder shall be bound thereby. After a supplemental indenture
becomes effective, the Company shall mail to Holders a notice briefly describing
such amendment. The failure to give such notice to all Holders, or any defect
therein, shall not impair or affect the validity of an amendment under this
Section.
SECTION 10.4 Compliance with Trust Indenture Act.
Every amendment or supplement to this Indenture or the Senior
Notes shall be set forth in an amended or supplemental Indenture that complies
with the Trust Indenture Act as then in effect.
SECTION 10.5 Revocation and Effect of Consents.
(a) Until an amendment, supplement or waiver becomes
effective, a consent to it by a Holder of a Senior Note is a continuing consent
by the Holder of a Senior Note and every subsequent Holder of a Senior Note or
portion of a Senior Note that evidences the same debt as the consenting Holder's
Senior Note, even if notation of the consent is not made on any Senior Note.
However, any such Holder of a Senior Note or subsequent Holder of a Senior Note
may revoke the consent as to its Senior Note if the Trustee receives written
notice of revocation before the date the waiver, supplement or amendment becomes
effective. An amendment, supplement or waiver becomes effective in accordance
with its terms and thereafter binds every Holder.
(b) The Company may, but shall not be obligated to, fix a
record date for the purpose of determining the Holders entitled to give their
consent or take any other action described above or required or permitted to be
taken pursuant to this Indenture. If a record date is fixed, then
notwithstanding the immediately preceding subsection, those Persons who were
Holders at such record date (or their duly designated proxies), and only those
Persons, shall be entitled to give such consent or to revoke any consent
previously given or to take any such action, whether or not such Persons
continue to be Holders after such record date. No such consent shall be valid or
effective for more than 120 days after such record date.
SECTION 10.6 Notation on or Exchange of Senior Notes.
The Trustee may place an appropriate notation about an
amendment, supplement or waiver on any Senior Note thereafter authenticated. The
Company in exchange for all Senior Notes may issue and the Trustee shall
authenticate new Senior Notes that reflect the amendment, supplement or waiver.
Failure to make the appropriate notation or issue a new Senior
Note shall not affect the validity and effect of such amendment, supplement or
waiver.
SECTION 10.7 Trustee to Sign Supplemental Indentures.
The Trustee shall sign any supplemental Indenture authorized
pursuant to this Article 10 if the amendment or supplement does not adversely
affect the rights, duties, liabilities or immunities of the Trustee. Neither the
Company nor a Guarantor may sign a supplemental Indenture until the Board of
Directors of such Person approves it. In executing any supplemental indenture,
the Trustee shall be entitled to receive indemnity reasonably satisfactory to it
and to receive and (subject to Section 7.1) shall be fully protected in relying
upon, in addition to the documents required by Section 11.4, an Officers'
Certificate and an Opinion of Counsel stating that:
(a) such supplemental indenture is authorized or permitted by
this Indenture and that all conditions precedent to the execution, delivery and
performance of such supplemental indenture have been satisfied;
(b) the Company and the Guarantors have all necessary
corporate power and authority to execute and deliver the supplemental indenture
and that the execution, delivery and performance of such supplemental indenture
has been duly authorized by all necessary corporate action of the Company and
the Guarantors;
(c) the execution, delivery and performance of the
supplemental indenture do not conflict with, or result in the breach of or
constitute a default under any of the terms, conditions or provisions of (i)
this Indenture, (ii) the charter documents and by-laws of the Company or any
Guarantor, or (iii) any material agreement or instrument to which the Company or
any Guarantor is subject and of which such counsel is aware;
(d) to the knowledge of legal counsel writing such Opinion of
Counsel, the execution, delivery and performance of the supplemental indenture
do not conflict with, or result in the breach of any of the terms, conditions or
provisions of (i) any law or regulation applicable to the Company or any
Guarantor, or (ii) any material order, writ, injunction or decree of any court
or governmental instrumentality applicable to the Company or any Guarantor;
(e) such supplemental indenture has been duly and validly
executed and delivered by the Company and the Guarantors, and this Indenture
together with such supplemental indenture constitutes a legal, valid and binding
obligations of the Company and the Guarantors enforceable against the Company
and the Guarantors, as applicable, in accordance with its terms, except as such
enforceability may be limited by applicable bankruptcy, insolvency,
reorganization, fraudulent conveyance or transfer, moratorium or similar laws
affecting the enforcement of creditors' rights generally and general equitable
principles (whether considered in a proceeding at law or in equity); and
(f) this Indenture together with such amendment or supplement
complies with the Trust Indenture Act.
SECTION 10.8 Payment for Consent.
Neither the Company nor any Affiliate of the Company shall,
directly or indirectly, pay or cause to be paid any consideration, whether by
way of interest, fee or otherwise, to any Holder for or as an inducement to any
consent, waiver or amendment of any of the terms or provisions of this Indenture
or the Senior Notes unless such consideration is offered to be paid to all
Holders that so consent, waive or agree to amend in the time frame set forth in
solicitation documents relating to such consent, waiver or agreement.
ARTICLE 11
MISCELLANEOUS
SECTION 11.1 Trust Indenture Act Controls.
If any provision of this Indenture limits, qualifies or
conflicts with the duties imposed by, or with another provision included in this
Indenture by operation of Sections 310 to 318, inclusive, of the Trust Indenture
Act, such imposed duties or incorporated provision shall control. If any
provision of this Indenture modifies or excludes any provision of the Trust
Indenture Act that can be so modified or excluded, the latter provision shall be
deemed to apply to this Indenture as so modified or excluded, as the case may
be.
SECTION 11.2 Notices.
Any notice or communication by the Company, the Guarantors or
the Trustee to the others is duly given if in writing and delivered in person or
mailed by first class mail (registered or certified, return receipt requested),
telecopier or overnight air courier guaranteeing next day delivery, to the
others' address:
If to the Company or any Guarantor:
Hvide Marine Incorporated
0000 Xxxxx Xxxxx
P.O. Box 13038
Ft. Xxxxxxxxxx, Xxxxxxx 00000
Telephone No.: (000) 000-0000
Attention: Chief Financial Officer
Telephone No.: (000) 000-0000 Ext. 300
Telecopier No.: (000) 000-0000
If to the Trustee:
The Bank of New York
000 Xxxxxxx Xxxxxx, Xxxxx 00 Xxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Corporate Trust Administration
Telephone No.: (000) 000-0000
Telecopier No.: (000) 000-0000
The Company, the Guarantors, or the Trustee, by notice to the
others may designate additional or different addresses for subsequent notices or
communications.
All notices and communications (other than those sent to
Holders) shall be deemed to have been duly given: at the time delivered by hand,
if personally delivered; when receipt acknowledged, if telecopied; and the next
Business Day after timely delivery to the courier, if sent by overnight air
courier guaranteeing next day delivery.
Any notice or communication to a Holder shall be mailed by
first class mail, certified or registered, return receipt requested, or by
overnight air courier guaranteeing next day delivery to its address shown on the
Securities Register kept by the Registrar and shall be given if so sent within
the time prescribed. Any notice or communication shall also be so mailed to any
Person described in TIA ss. 313(c), to the extent required by the Trust
Indenture Act. Failure to mail a notice or communication to a Holder or any
defect in it shall not affect its sufficiency with respect to other Holders.
If a notice or communication is mailed in the manner provided
above within the time prescribed, it is duly given, whether or not the addressee
receives it; a notice or communication, however, shall not be effective unless,
in the case of the Company, the Guarantors or the Trustee, actually received.
If the Company mails a notice or communication to Holders, it
shall mail a copy to the Trustee and each Agent at the same time.
In case by reason of the suspension of regular mail service or
by reason of any other cause it shall be impracticable to give notice by mail to
Holders, then such notification as shall be made with the approval of the
Trustee shall constitute a sufficient notification for every purpose hereunder.
.ECTION 11.3 Communication By Holders of Senior Notes With Other Holders of
Senior Notes
Holders may communicate pursuant to TIA ss. 312(b) with other
Holders with respect to their rights under this Indenture or the Senior Notes.
The Company, the Guarantors, the Trustee, the Registrar and anyone else shall
have the protection of TIA ss. 312(c).
SECTION 11.4 Certificate and Opinion as to Conditions Precedent.
Upon any request or application by the Company to the Trustee
to take any action under this Indenture, the Company, upon request, shall
furnish to the Trustee, to the extent required by this Indenture or the Trust
Indenture Act:
(a) an Officers' Certificate in form and substance reasonably
satisfactory to the Trustee (which shall include the statements set forth in
Section 11.5 hereof) stating that, in the opinion of the signers, all conditions
precedent and covenants, if any, provided for in this Indenture relating to the
proposed action have been satisfied; and
(b) an Opinion of Counsel in form and substance reasonably
satisfactory to the Trustee (which shall include the statements set forth in
Section 11.5 hereof) stating that, in the opinion of such counsel, all such
conditions precedent and covenants have been satisfied.
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 such Persons as to other matters, and any such Person may certify or
give an opinion as to such matters in one or several documents.
Any certificate or opinion of an officer of the Company or any
Guarantor may be based, insofar as it relates to legal matters, upon a
certificate or opinion of, or representations by, counsel, unless such officer
knows, or in the exercise of reasonable care should know, that the certificate
or opinion or representations with respect to the matters upon which his
certificate or opinion is based are erroneous. Any such certificate or opinion
of counsel may be based, and may state that it is so based, insofar as it
relates to factual matters, upon a certificate or opinion of, or representations
by, an officer or officers of the Company or such Guarantor stating that the
information with respect to such factual matters is in the possession of the
Company or such Guarantor, unless such counsel knows, or in the exercise of
reasonable care should know, that the certificate of opinion or representations
with respect to such matters are erroneous.
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 11.5 Statements Required in a Certificate or Opinion.
Each certificate or opinion with respect to compliance with a
condition or covenant provided for in this Indenture (other than a certificate
provided pursuant to TIA ss. 314(a)(4)) shall comply with the provisions of TIA
ss. 314(e) and shall include:
(a) a statement that the Persons making such certificate
or opinion have read such covenant or condition;
(b) a brief statement as to the nature and scope of the
examination or investigation upon which the statements or opinions contained in
such certificate or opinion are based;
(c) a statement that, in the opinion of such Persons, they
have made such examination or investigation as is necessary to enable them to
express an informed opinion as to whether or not such covenant or condition has
been satisfied; and
(d) a statement as to whether or not, in the opinion of such
Persons, such condition or covenant has been satisfied.
SECTION 11.6 Acts of Holders.
(a) Any request, demand, authorization, direction, notice,
consent, waiver or other action provided by this Indenture to be given or taken
by a specified percentage of Holders may be embodied in and evidenced by one or
more instruments of substantially similar tenor signed by such specified
percentage of Holders in person or by agents duly appointed in writing; and,
except as herein otherwise expressly provided, such action shall become
effective when such instrument or instruments are received by the Trustee and,
where it is hereby expressly required, by the Company and the Guarantors. Such
instrument or instruments (and the action embodied therein and evidenced
thereby) are herein sometimes referred to as the "Act" of the Holders signing
such instrument or instruments. Proof of execution of any such instrument or of
a writing appointing any such agent shall be sufficient for any purpose of this
Indenture and (subject to Sections 7.1 and 7.2) conclusive in favor of the
Trustee, the Company and the Guarantors, if made in the manner provided in this
Section.
(b) The fact and date of the execution by any Person of any
such instrument or writing may be proved by the affidavit of a witness of such
execution or by a certificate of a notary public or other officer authorized by
law to take acknowledgments of deeds, certifying that the individual signing
such instrument or writing acknowledged to him the execution thereof. Where such
execution is by a signer acting in a capacity other than his individual
capacity, such certificate or affidavit shall also constitute sufficient proof
of authority. The fact and date of the execution of any such instrument or
writing, or the authority of the Person executing the same, may also be proved
in any other manner which the Trustee deems sufficient, including the execution
of such instrument or writing without more.
(c) The ownership, principal amount and serial numbers of
Senior Notes held by any Person, and the date of holding the same, shall be
proved by the Security Register.
(d) If the Company shall solicit from the Holders of Senior
Notes any request, demand, authorization, direction, notice, consent, waiver or
other Act, the Company may, at its option, by or pursuant to Board Resolution,
fix in advance a record date for the determination of 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. Such record date shall
be the record date specified in or pursuant to such Board Resolution, which
shall be a date not earlier than the date 30 days prior to the first
solicitation is completed. If such a record date is fixed, such request, demand,
authorization, direction, notice, consent, waiver or other Act may be given
before or after such record date, but only the Holders of record at the close of
business on such record date shall be deemed to be Holders for the purposes of
determining whether Holders of the requisite proportion of outstanding Senior
Notes have authorized or agreed or consented to such request, demand,
authorization, direction, notice, consent, waiver or other Act, and for that
purpose the outstanding Senior Notes shall be computed as of such record date;
provided that no such authorization, agreement or consent by the Holders on such
record date shall be deemed effective unless it shall become pursuant to the
provisions of this Indenture not later than eleven months after the record date.
(e) Except to the extent otherwise expressly provided in this
Indenture, any request, demand, authorization, direction, notice, consent,
waiver or other Act of the Holder of any Senior Note shall bind every future
Holder of the same Senior Note and the Holder of every Senior Note issued upon
the registration of transfer thereof or in exchange therefor or in lieu thereof
in respect of anything done, omitted or suffered to be done by the Trustee or
the Company in reliance thereon, whether or not notation of such action is made
upon such Senior Note.
(f) Without limiting the foregoing, a Holder entitled
hereunder to give or take any action with regard to any particular Senior Note
may do so with regard to all or any part of the principal amount of such Senior
Note or by one or more duly appointed agents each of which may do so pursuant to
such appointment with regard to all or any different part of such principal
amount.
SECTION 11.7 Rules by Trustee and Agents.
The Trustee may make reasonable rules for action by or at a
meeting of Holders. The Registrar or Paying Agent may make reasonable rules and
set reasonable requirements for its functions; provided that no such rule shall
conflict with the terms of this Indenture or the Trust Indenture Act.
.ECTION 11.8 No Personal Liability of Directors, Officers, Employees and
Stockholders
No director, officer, employee, incorporator or stockholder of
the Company or any Guarantor, as such, shall have any liability for any
obligations of the Company or the Guarantors under the Senior Notes, this
Indenture, the Guarantees or for any claim based on, in respect of, or by reason
of, such Obligations or their creation. Each Holder by accepting a Senior Note
waives and releases all such liability. The waiver and release are part of the
consideration for issuance of the Senior Notes.
SECTION 11.9 Governing Law.
THE INTERNAL LAWS OF THE STATE OF NEW YORK SHALL GOVERN AND BE
USED TO CONSTRUE THIS INDENTURE AND THE SENIOR NOTES, WITHOUT REGARD TO THE
CONFLICTS OF LAWS PRINCIPLES THEREOF.
.ECTION 11.10 Agent for Service; Submission to Jurisdiction; Waiver of
Immunities
By the execution and delivery of this Indenture or any
amendment or supplement hereto, each of the Company and the Guarantors (i)
acknowledges that it has, by separate written instrument, designated and
appointed CT Corporation System (the "Process Agent") currently located at 0000
Xxxxxxxx, Xxx Xxxx, Xxx Xxxx 00000, as its authorized agent upon which process
may be served in any suit, action or proceeding with respect to, arising out of,
or relating to, this Indenture, the Guarantees, or the Senior Notes or brought
under U.S. federal or state securities laws, may be instituted in any U.S.
federal or state court located in The City of New York, New York, and
acknowledges that the Process Agent has accepted such designation, (ii)
irrevocably submits to the jurisdiction of any such court in any such suit,
action or proceeding and irrevocably waives, to the fullest extent that it may
effectively and lawfully do so, any obligation to the laying of venue of any
such suit, action or proceeding and the defense of an inconvenient forum to the
maintenance of any such suit action or proceeding in such court, and (iii)
agrees that service of process upon the Process Agent shall be deemed in every
respect effective service of process upon the Company in any such suit, action
or proceeding. The Company and the Guarantors further agrees to take any and all
action, including the execution and filing of any and all such documents and
instruments as may be necessary to continue such designation and appointment of
the Process Agent in full force and effect so long as this Indenture shall be in
full force and effect; provided that the Company may and shall (to the extent
the Process Agent ceases to be able to be served on the basis contemplated
herein), by written notice to the Trustee, designate such additional or
alternative agents for service of process under this Section 11.10 that (i)
maintains an office located in the Borough of Manhattan, The City of New York in
the State of New York, (ii) are either (a) counsel for the Company or (b) a
corporate service company which acts as agent for service of process for other
persons in the ordinary course of its business and for other persons in the
ordinary course of its business and (iii) agrees to act as agent for service of
process in accordance with this Section 11.10. Such notice shall identify the
name of such agent for process and the address of such agent for process in the
Borough of Manhattan, The City of New York, State of New York. Upon the request
of any Holder of a Senior Note, the Trustee shall deliver such information to
such Holder. Notwithstanding the foregoing, there shall, at all times, be at
least one agent for service of process for the Company and each Guarantor
appointed and acting in accordance with this Section 11.10.
To the extent that the Company or any Guarantor has or
hereafter may acquire any immunity from jurisdiction of any court or from any
legal process (whether through service of notice, attachment prior to judgment,
attachment in aid of execution, execution or otherwise) with respect to itself
or its property, each of the Company and the Guarantors hereby irrevocably
waives such immunity in respect of its Obligations under this Indenture, the
Guarantees and the Senior Notes, to the extent permitted by law.
SECTION 11.11 No Adverse Interpretation of Other Agreements.
This Indenture may not be used to interpret any other
indenture, loan or debt agreement of the Company, the Guarantors or the
Company's Subsidiaries or of any other Person. Any such indenture, loan or debt
agreement may not be used to interpret this Indenture.
SECTION 11.12 Successors.
All agreements of the Company and the Guarantors in this
Indenture, the Senior Notes and the Guarantors shall bind its successors. All
agreements of the Trustee in this Indenture shall bind its successors.
SECTION 11.13 Severability.
In case any provision in this Indenture or in the Senior Notes
shall be invalid, illegal or unenforceable, the validity, legality and
enforceability of the remaining provisions shall not in any way be affected or
impaired thereby.
SECTION 11.14 Counterpart Originals.
The parties may sign any number of copies of this Indenture
and by the parties thereto in separate counterparts. Each of which when signed
shall be deemed to be an original, but all of them together represent the same
agreement.
SECTION 11.15 Table of Contents, Headings, Etc.
The Table of Contents, Cross-Reference Table and headings of
the Articles and Sections of this Indenture have been inserted for convenience
of reference only, are not to be considered a part of this Indenture and shall
in no way modify or restrict any of the terms or provisions hereof.
ARTICLE 12 GUARANTEES (a) For good and valuable consideration, the receipt
and sufficiency of which are hereby acknowledged, each of the Guarantors,
together with each Subsidiary of the Company which in accordance with Sections
4.18 and 12.8(a) hereof is required in the future to guarantee the Obligations
of the Company and the Guarantors under the Senior Notes, the Guarantees and
this Indenture upon execution of a supplemental indenture, hereby jointly and
severally and irrevocably and unconditionally guarantees to the Trustee and to
each Holder irrespective of the validity or enforceability of this Indenture or
the Securities or the Obligations of the Company and the Guarantors under this
Indenture, that: (i) the principal of, premium, if any, any interest, and
Special Interest, if any, on the Senior Notes (including, without limitation,
any interest that accrues after the filing of a proceeding of the type described
in Sections 6.1(g) and (h)) and any fees, expenses and other amounts owing under
this Indenture will be duly and punctually paid in full when due, whether at
Maturity, by acceleration, call for redemption, upon a Change of Control Offer,
Asset Sale Offer, purchase or otherwise, and interest on the overdue principal
and (to the extent permitted by law) interest, if any, on the Senior Notes and
any other amounts due in respect of the Senior Notes, and all other Obligations
of the Company and the Guarantors to the Holders of the Senior Notes under this
Indenture, the Senior Notes and the Guarantees, whether now or hereafter
existing, will be promptly paid in full or performed, all strictly in accordance
with the terms hereof and of the Senior Notes; and (ii) in case of any extension
of time of payment or renewal of any Senior Notes or any of such other
Obligations, the same will be promptly paid in full when due or performed in
accordance with the terms of the extension or renewal, whether at Maturity, by
acceleration, call for redemption, upon Change of Control Offer, Asset Sale
Offer, purchase or otherwise; provided, however, that the maximum liability of
Seabulk Transmarine Partnership, Ltd. under its Guarantee shall be limited to 66
2/3% of the fair market value, from time to time, of the Seabulk America
Official No. 911357. If payment is not made when due of any amount so guaranteed
for whatever reason, each Guarantor shall be jointly and severally obligated to
pay the same individually whether or not such failure to pay has become an Event
of Default which could cause acceleration pursuant to Section 6.2. Each
Guarantor agrees that this is a guarantee of payment and not a guarantee of
collection. An Event of Default under this Indenture or the Senior Notes shall
constitute an Event of Default under each Guarantee, and shall entitle the
Holders to accelerate the Obligations of each Guarantor hereunder in the same
manner and to the same extent as the Obligations of the Company. Each Guarantee
is intended to be superior to or pari passu in right of payment with all
Indebtedness of the Guarantors and each Guarantor's Obligations are independent
of any Obligation of the Company or any other Guarantor.
(b) Each Guarantor waives presentation to, demand of, payment
from and protest to the Company of any of the Obligations under this Indenture
or the Senior Notes and also waives notice of protest for nonpayment. Each
Guarantor waives notice of any default under the Senior Notes or the
Obligations. The Obligations of each Guarantor hereunder shall not be affected
by (i) the failure of any Holder or the Trustee to assert any claim or demand or
to enforce any right or remedy against the Company or any other Person under
this Indenture, the Senior Notes or any other agreement or otherwise; (ii) any
extension or renewal of any thereof; (iii) any rescission, waiver, amendment or
modification of any of the terms or provisions of this Indenture, the Senior
Notes or any other agreement; (iv) the release of any security held by any
Holder or the Trustee for the Obligations or any of them; (v) the failure of any
Holder or the Trustee to exercise any right or remedy against any other
guarantor of the Obligations; or (f) any change in the ownership of such
Guarantor.
(c) The Obligations of each Guarantor hereunder shall not be
subject to any reduction, limitation, impairment or termination for any reason,
including any claim of waiver, release, surrender, alteration or compromise, and
shall not be subject to any defense of setoff, counterclaim, recoupment or
termination whatsoever or by reason of the invalidity, illegality or
unenforceability of the Obligations of the Company or otherwise. Without
limiting the generality of the foregoing, the Obligations of each Guarantor
herein shall not be discharged or impaired or otherwise affected by the failure
of any Holder or the Trustee to assert any claim or demand or to enforce any
remedy under this Indenture, the Senior Notes or any other agreement, by any
waiver or modification of any thereof, by any default, failure or delay, willful
or otherwise, in the performance of the Obligations of the Company, or by any
other act or thing or omission or delay to do any other act or thing which may
or might in any manner or to any extent vary the risk of such Guarantor or would
otherwise operate as a discharge of such Guarantor as a matter of law or equity.
(d) Each Guarantor further agrees that its Guarantee herein
shall continue to be effective or be reinstated, as the case may be, if at any
time payment, or any part thereof, of principal of, premium, if any, on or
interest (or Special Interest, if any) on any Obligation of the Company is
rescinded or must otherwise be restored by any Holder or the Trustee upon the
bankruptcy or reorganization of the Company or otherwise.
(e) In furtherance of the foregoing and not in limitation of
any other right which any Holder or the Trustee has at law or in equity against
any Guarantor by virtue hereof, upon the failure of the Company to pay the
principal of, premium, if any, on or interest (or Special Interest, if any) on
any Obligation when and as the same shall become due, whether at maturity, by
acceleration, by redemption or otherwise, or to perform or comply with any other
Obligation, each Guarantor hereby promises to and will, upon receipt of written
demand by the Trustee, forthwith pay, or cause to be paid, in cash, to the
Holders or the Trustee an amount equal to the sum of (i) the unpaid amount of
such Obligations, (ii) accrued and unpaid interest on such Obligations (but only
to the extent not prohibited by law) and (iii) all other monetary Obligations of
the Company to the Holders and the Trustee.
(f) Until such time as the Senior Notes and the other
Obligations of the Company guaranteed hereby have been satisfied in full, each
Guarantor hereby irrevocably waives any claim or other rights that it may now or
hereafter acquire against the Company or any other Guarantor that arise from the
existence, payment, performance or enforcement of such Guarantor's Obligations
under each Guarantee, including, without limitation, any right of subrogation,
reimbursement, exoneration, contribution or indemnification and any right to
participate in any claim or remedy of the Holders or the Trustee against the
Company or any other Guarantor or any security, 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 or
any other 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. If any amount shall be paid to such Guarantor in violation of
the preceding sentence at any time prior to the later of the payments in full of
the Senior Notes and all other amounts payable under this Indenture, each
Guarantee and the Maturity of the Senior Notes, such amount shall be held in
trust for the benefit of the Holders and the Trustee and shall forthwith be paid
to the Trustee to be credited and applied to the Senior Notes and all other
amounts payable under each Guarantee, whether matured or unmatured, in
accordance with the terms of this Indenture, or to be held as security for any
Obligations or other amounts payable under any Guarantee thereafter arising.
(g) Each Guarantor acknowledges that it will receive direct
and indirect benefits from the financing arrangements contemplated by this
Indenture and that the waiver set forth in this Section 12.1 is knowingly made
in contemplation of such benefits. Each Guarantor further agrees that, as
between it, on the one hand, and the Holders and the Trustee, on the other hand,
(x) subject to this Article 12, the maturity of the Obligations guaranteed
hereby may be accelerated as provided in Article 6 for the purposes of each
Guarantee, notwithstanding any stay, injunction or other prohibition preventing
such acceleration in respect of the Obligations guaranteed hereby, and (y) in
the event of any acceleration of such Obligations guaranteed hereby as provided
in Article 6, such Obligations (whether or not due and payable) shall further
then become due and payable by the Guarantors for the purposes of each
Guarantee.
(h) A Guarantor that makes a distribution or payment under a
Guarantee shall be entitled to contribution from each other Guarantor in a pro
rata amount based on the Adjusted Net Assets of each such other Guarantor for
all payments, damages and expenses incurred by that Guarantor in discharging the
Company's obligations with respect to the Senior Notes and this Indenture or any
other Guarantor with respect to its Guarantee, so long as the exercise of such
right does not impair the rights of the Holders of the Senior Notes under the
Guarantees.
(i) Each Guarantor also agrees to pay any and all costs and
expenses (including reasonable attorneys' fees) incurred by the Trustee or any
Holder in enforcing any rights under this Section.
SECTION 12.2 Limitation on Liability
The Obligations of each Guarantor will be limited to the
maximum amount as will, after giving effect to all other contingent and fixed
liabilities of such Guarantor and after giving effect to any collections from or
payments made by or on behalf of any other Guarantor in respect of the
Obligations of such other Guarantor under its Guarantee or pursuant to its
contribution obligations under this Indenture, result in the Obligations of such
Guarantor under its Guarantee not constituting a fraudulent conveyance or
fraudulent transfer under federal or state law or otherwise not being void,
voidable or unenforceable under any bankruptcy, reorganization, receivership,
insolvency, liquidation or other similar legislation or legal principles under
any applicable foreign law. Each Guarantor that makes a payment or distribution
under a Guarantee shall be entitled to a contribution from each other Guarantor
in a pro rata amount based on the Adjusted Net Assets of each Guarantor.
SECTION 12.3 Execution and Delivery of Guarantees.
To further evidence its Guarantee set forth in Section 12.1
hereof, each Guarantor hereby agrees that notation of such Guarantee shall be
endorsed on each Senior Note authenticated and delivered by the Trustee and
executed by either manual or facsimile signature of an authorized officer of
such Guarantor. Each Guarantor hereby agrees that its Guarantee set forth in
Section 12.1 hereof shall remain in full force and effect notwithstanding any
failure to endorse on each Senior Note a notation of such Guarantee. If an
officer of a Guarantor whose signature is on this Indenture or a Senior Note no
longer holds that office at the time the Trustee authenticates such Senior Note
or at any time thereafter, such Guarantor's guarantee of such Senior Note shall
be valid nevertheless. The delivery of any Senior Note by the Trustee, after the
authentication thereof hereunder, shall constitute due delivery of any Guarantee
set forth in this Indenture on behalf of the Guarantor.
SECTION 12.4 When A Guarantor May Merge, Etc.
Each Guarantor may consolidate with or merge into or sell or
otherwise dispose of all or substantially all of its Property and assets to the
Company or another Guarantor without limitation, except to the extent any such
transaction is subject to Section 5.1 hereof. Each Guarantor may consolidate
with or merge into or sell all or substantially all of its Property and assets
to a Person other than the Company or another Guarantor (whether or not
Affiliated with the Guarantor), provided that (a) if the surviving Person is not
the Guarantor, the surviving Person agrees to assume such Guarantor's Guarantee
and all its Obligations pursuant to this Indenture (except to the extent the
provisions of Section 12.7(a) would result in the release of such Guarantee) and
(b) such transaction does not (i) violate any of the covenants described in
Article 4 hereof or (ii) result in a Default or Event of Default being in
existence or continuing immediately thereafter.
SECTION 12.5 No Waiver.
Neither a failure nor a delay on the part of either the
Trustee or the Holders in exercising any right, power or privilege under this
Article 12 shall operate as a waiver thereof, nor shall a single or partial
exercise thereof preclude any other or further exercise of any right, power or
privilege. The rights, remedies and benefits of the Trustee and the Holders
herein expressly specified are cumulative and not exclusive of any other rights,
remedies or benefits which either may have under this Article 12 at law, in
equity, by statute or otherwise.
SECTION 12.6 Modification.
No modification, amendment or waiver of any provision of this
Article 12, nor the consent to any departure by any Guarantor therefrom, shall
in any event be effective unless the same shall be in writing and signed by the
Trustee, and then such waiver or consent shall be effective only in the specific
instance and for the purpose for which given. No notice to or demand on any
Guarantor in any case shall entitle such Guarantor to any other or further
notice or demand in the same, similar or other circumstances.
SECTION 12.7 Release of Guarantor.
(a) Upon the sale or other disposition (by merger or
otherwise) of a Guarantor (or all or substantially all of its Property and
assets) to a Person other than the Company or another Guarantor and pursuant to
a transaction that is otherwise in compliance with this Indenture (including as
described in clause (b) of Section 12.4 and as described in Section 4.15
hereof), such Guarantor (unless it otherwise remains a Subsidiary) shall be
deemed released from its Guarantee and the related Obligations set forth in this
Indenture; provided that any such termination shall occur only to the extent
that all Obligations of such Guarantor under all of its guarantees of and under
all of its pledges of assets or other security interests which secure, other
Indebtedness of the Company or any other Subsidiary shall also terminate or be
released upon such sale or other disposition. Each Guarantor that is designated
as an Unrestricted Subsidiary in accordance with this Indenture shall be
released from its Guarantee and the related Obligations set forth in this
Indenture so long as it remains an Unrestricted Subsidiary.
(b) Any Guarantee by a Subsidiary (including an Initial
Guarantor) shall be automatically and unconditionally released and discharged,
as evidenced by a supplemental indenture executed by the Company, the
Guarantors, if any, and the Trustee, upon the release or discharge of the
guarantee which resulted in the creation of such Subsidiary's Guarantee and all
other guarantees of the Obligations of any Obligor on the Senior Notes, except a
discharge or release by, or as a result of, payment under such guarantee.
.ECTION 12.8 Future Guarantors; Execution of Supplemental Indentures for Future
Guarantors
(a) The Company may not permit any Subsidiary, directly or
indirectly, to guarantee any Indebtedness of the Company or any other Obligor
("Guaranteed Indebtedness") unless (i) such Subsidiary simultaneously executes
and delivers a supplemental indenture to this Indenture providing for a
Guarantee of payment of the Senior Notes by such Subsidiary and (ii) such
Subsidiary waives and will not in any manner whatsoever claim or take the
benefit or advantage of, any rights of reimbursment, indemnity or subrogation or
any other rights against the Company or any other Subsidiary as a result of any
payment by such Subsidiary under its Guarantee. If the Guaranteed Indebtedness
is pari passu with the Senior Notes, then the guarantee of such Guaranteed
Indebtedness shall be pari passu with or subordinated to the Guarantee; and if
the Guaranteed Indebtedness is subordinated to the Senior Notes, then the
guarantee of such Guaranteed Indebtedness shall be subordinated to the Guarantee
at least to the extent that all Guaranteed Indebtedness is subordinated to the
Senior Notes.
(b) Any Subsidiary that guarantees any Indebtedness of the
Company or another Obligor is required pursuant to Section 12.8(a) or 4.18
hereof to become a Guarantor and the Company shall cause each such Subsidiary to
promptly execute and deliver to the Trustee a supplemental indenture pursuant to
which such Subsidiary shall become a Guarantor under this Article 12 and shall
guarantee the Obligations of the Company under the Senior Notes and this
Indenture. Concurrently with the execution and delivery of such supplemental
indenture, the Company shall deliver to the Trustee an Opinion of Counsel to the
effect that such supplemental indenture has been duly authorized, executed and
delivered by such Subsidiary and that, subject to the application of bankruptcy,
insolvency, moratorium, reorganization, fraudulent conveyance or transfer and
other similar laws relating to creditors' rights generally and to the principles
of equity, whether considered in a proceeding at law or in equity, the Guarantee
of such Guarantor is a legal, valid and binding obligation of such Guarantor,
enforceable against such Guarantor in accordance with its terms, and as to any
such other matters as the Trustee may reasonably request.
[Remainder of Page Intentionally Left Blank]
IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be
duly executed as of the date first written above.
HVIDE MARINE INCORPORATED
By:
Name: Xxxx Xxxxxxx
Title: Vice President - Legal, General
Counsel and Secretary
THE BANK OF NEW YORK, as Trustee
By:
Name:
Title
Each of the following entities as Guarantors:
HVIDE MARINE INTERNATIONAL, INC.
HVIDE MARINE TRANSPORT,INCORPORATED
SEABULK ALKATAR, INC
SEABULK ARABIAN, INC.
SEABULK ARCTIC EXPRESS, INC
SEABULK ARIES II, INC.
SEABULK ARZANAH, INC.
SEABULK BARRACUDA, INC.
SEABULK XXXXX, INC.
SEABULK XXXXX, INC.
SEABULK BRAVO, INC.
SEABULK BUL HANIN, INC.
SEABULK CAPRICORN, INC.
SEABULK CARDINAL, INC.
SEABULK XXXXX, INC.
SEABULK CHAMP, INC.
SEABULK CHEMICAL CARRIERS, INC.
SEABULK XXXXXXXXXXX, INC.
SEABULK CLIPPER, INC.
SEABULK COMMAND, INC.
SEABULK CONDOR, INC.
SEABULK CONSTRUCTOR, INC.
SEABULK COOT I, INC.
SEABULK COOT II, INC.
SEABULK CORMORANT, INC.
SEABULK CYGNET I, INC.
SEABULK CYGNET II, INC.
SEABULK DANAH, INC.
SEABULK XXXXX, INC.
SEABULK XXXXXX, INC.
SEABULK DEFENDER, INC.
SEABULK XXXXX, INC.
SEABULK DISCOVERY, INC.
SEABULK DUKE, INC.
SEABULK EAGLE II, INC.
SEABULK EAGLE, INC.
SEABULK EMERALD, INC.
SEABULK ENERGY, INC.
SEABULK EXPLORER, INC.
SEABULK FALCON II, INC.
SEABULK FALCON, INC.
SEABULK FREEDOM, INC.
SEABULK FULMAR, INC.
SEABULK GABRIELLE, INC.
SEABULK GANNET I, INC.
SEABULK GANNET II, INC.
SEABULK GAZELLE, INC.
SEABULK GIANT, INC.
SEABULK XXXXX, INC.
SEABULK HABARA, INC.
SEABULK HAMOUR, INC.
SEABULK HARRIER, INC.
SEABULK HATTA, INC.
SEABULK HAWK, INC.
SEABULK HERCULES, INC.
SEABULK HERON, INC.
SEABULK HORIZON, INC.
SEABULK HOUBARE, INC.
SEABULK HUNTER, INC.
SEABULK IBEX, INC.
SEABULK XXXXXX, INC.
SEABULK JEBEL ALI, INC.
SEABULK KESTREL, INC.
SEABULK KING, INC.
SEABULK KNIGHT, INC.
SEABULK LAKE EXPRESS, INC.
SEABULK LARA, INC.
SEABULK LARK, INC.
SEABULK LIBERTY, INC.
SEABULK LULU, INC.
SEABULK MAINTAINER, INC.
SEABULK MALLARD, INC.
SEABULK XXXXXXX, INC.
SEABULK XXXXXX I, INC.
SEABULK XXXXXX XX, INC.
SEABULK MASTER, INC.
SEABULK MERLIN, INC.
SEABULK MUBARRAK, INC.
SEABULK NADA, INC.
SEABULK NEPTUNE, INC.
SEABULK OCEAN SYSTEMS CORPORATION
SEABULK OCEAN SYSTEMS HOLDINGS CORPORATION
SEABULK OFFSHORE ABU DHABI, INC.
SEABULK OFFSHORE DUBAI, INC.
SEABULK OFFSHORE GLOBAL HOLDINGS, INC.
SEABULK OFFSHORE HOLDINGS, INC.
SEABULK OFFSHORE INTERNATIONAL, INC.
SEABULK OFFSHORE OPERATORS, INC.
SEABULK ORYX, INC.
SEABULK OSPREY, INC.
SEABULK PELICAN, INC.
SEABULK PENGUIN I, INC.
SEABULK PENGUIN II, INC.
SEABULK XXXXX, INC.
SEABULK PERSISTENCE, INC.
SEABULK PETREL, INC.
SEABULK PLOVER, INC.
SEABULK POWER, INC.
SEABULK PRIDE, INC.
SEABULK PRINCE, INC.
SEABULK PRINCESS, INC.
SEABULK PUFFIN, INC.
SEABULK QUEEN, INC.
SEABULK RAVEN, INC.
SEABULK ROOSTER, INC.
SEABULK RUBY, INC.
SEABULK SALIHU, INC.
SEABULK SAPPHIRE, INC.
SEABULK XXXX, INC.
SEABULK SEAHORSE, INC.
SEABULK SENGALI, INC.
SEABULK SERVICE, INC.
SEABULK XXXXX, INC.
SEABULK SHINDAGA, INC.
SEABULK SKUA I, INC.
SEABULK SNIPE, INC.
SEABULK STAR, INC.
SEABULK XXXXXX, INC.
SEABULK SWAN, INC.
SEABULK SWIFT, INC.
SEABULK TAURUS, INC.
SEABULK TENDER, INC.
SEABULK TERN, INC.
SEABULK XXXX I, INC.
SEABULK TITAN, INC.
SEABULK TOOTA, INC.
SEABULK TOUCAN, INC.
SEABULK TRANSMARINE II, INC.
SEABULK TRADER, INC.
SEABULK TREASURE ISLAND, INC.
SEABULK UMM SHAIF, INC.
SEABULK VERITAS, INC.
SEABULK VIRGO I, INC.
SEABULK VOYAGER, INC.
SEABULK ZAKUM, INC.
TAMPA BAY TOWING, INC.
By:
Name: Xxxx Xxxxxxx
Ttle: Vice President - Legal, General Counsel and Secretary
SEABULK OFFSHORE, LTD.
by its general partner
SEABULK TANKERS, LTD.
by its general partner
HVIDE MARINE TRANSPORT, INC.
By:
Name: Xxxx Xxxxxxx
Title: Vice President - Legal, General
Counsel and Secretary
SEABULK TANKERS, LTD.
by its general partner
HVIDE MARINE TRANSPORT, INC.
By:
Name: Xxxx Xxxxxxx
Title: Vice President - Legal, General
Counsel and Secretary
SEABULK AMERICA PARTNERSHIP, LTD.
by its general partner
SEABULK TANKERS, LTD.
by its general partner
HVIDE MARINE TRANSPORT, INC.
By:
Name: Xxxx Xxxxxxx
Title: Vice President - Legal, General
Counsel and Secretary
SEABULK TRANSMARINE
PARTNERSHIP, LTD.
by its general partner
SEABULK TANKERS, LTD.
by its general partner
HVIDE MARINE TRANSPORT, INC.
By:
Name: Xxxx Xxxxxxx
Title: Vice President - Legal, General
Counsel and Secretary
SUN STATE MARINE SERVICES, INC.
By:
Name: Xxxx Xxxxxxx
Title: Secretary
OCEAN SPECIALTY TANKERS CORP.
By:
Name: Xxxxxx X. Xxxxxxx
Title: President
