SUPPLEMENTAL INDENTURE
Exhibit
99.1
THIS
SUPPLEMENTAL INDENTURE, dated as of September 21, 2005, between XXXX-XxXXX
CORPORATION, a Delaware corporation (the “Company”),
and CITIBANK, N.A., a national banking association incorporated and existing
under the laws of the United States of America (the “Trustee”).
THIS
SUPPLEMENTAL INDENTURE WITNESSETH:
WHEREAS,
the Company and the Trustee are parties to that certain Indenture, dated as
of
August 1, 2001 (the “Indenture”),
providing for the issuance from time to time of its unsecured debentures, notes
or other evidences of indebtedness in one or more series (the “Securities”),
up to such principal amounts as may from time to time be authorized in or
pursuant to one or more Board Resolutions.
WHEREAS,
pursuant to Section 9.02 of the Indenture, the Holders of not less than 50%
in
aggregate principal amount of Outstanding Securities of all series issued
pursuant to the Indenture in each series affected by this Supplemental Indenture
(voting as a single class) have consented to the execution and delivery by
the
Company and the Trustee of this Supplemental Indenture to amend the provisions
of Section 8.06 of the Indenture and certain definitions related thereto;
and
WHEREAS,
the execution and delivery of this Supplemental Indenture has been duly
authorized by a Board Resolution and all acts, conditions and requirements
necessary to make this Supplemental Indenture a valid and binding agreement
in
accordance with its terms and for the purposes set forth herein have been done
and taken, including but not limited to the Company’s filing with the Trustee in
accordance with the provisions of Sections 1.04 and 9.02 of the Indenture the
above-mentioned consents of the Holders, together with the authorizing Board
Resolution, and the execution and delivery of this Supplemental Indenture has
been in all respects duly authorized.
NOW,
THEREFORE, intending to be legally bound hereby, each of the Company and the
Trustee has executed and delivered this Supplemental Indenture.
ARTICLE
I
AMENDMENT
Section
1.1. Section
8.06 of the Indenture is hereby amended and restated in its entirety as
follows:
SECTION
8.06. When
Guarantors May Consolidate or Merge; Release of Guarantors.
Except
in the case of a (i) Guarantor that is being disposed of in its entirety to
another Person; (ii) Xxxx-XxXxx Chemical Worldwide LLC (or any successor entity,
including any parent entity or other affiliate controlling Xxxx-XxXxx Chemical
Worldwide LLC) completing an Initial Public Offering; (iii) Xxxx-XxXxx Chemical
Worldwide LLC (or any successor entity, including any parent entity or other
affiliate controlling Xxxx-XxXxx Chemical Worldwide LLC) completing a Spin
Off;
or (iv) Xxxx-XxXxx Chemical Worldwide LLC (or any successor entity, including
any parent entity or other affiliate controlling Xxxx-XxXxx Chemical Worldwide
LLC) completing a Split Off,
the Company will not permit any Guarantor to consolidate with or merge with
or
into any Person unless:
(A)
the resulting, surviving or transferee Person (if not a Guarantor or the
Company) shall be a Person organized and existing under the laws of the
jurisdiction under which such Guarantor was organized or under the laws of
the
United States of America, or any State thereof or the District of Columbia,
and
such Person shall expressly assume all the obligations of such Guarantor under
each of its Guarantees hereunder;
(B)
immediately after giving effect to such transaction or transactions, no default
in the performance (i) by the Company of the covenants and conditions of this
Indenture to be performed by the Company or (ii) by any Guarantor (including
the
resulting, surviving or transferee Person in such transaction or transactions)
of the covenants and conditions of this Indenture to be performed by such
Guarantor, shall have occurred and be continuing; and
(C)
the Company delivers to the Trustee an Officers’ Certificate and an Opinion of
Counsel, each stating that such consolidation or merger, and, if applicable,
the
assumption by the resulting or surviving Person of such Guarantor’s obligations
under each of its Guarantees hereunder, complies with the
Indenture.
If
the conditions set forth in (A), (B) and (C) above are otherwise satisfied,
the
consolidation or merger of any Guarantor with or into any Person shall not
be or
be deemed to be a violation, default or breach by the Company or any Guarantor
of any of the provisions of Article XV hereof.
In
the event that a Guarantor is disposed of in its entirety (whether by merger,
consolidation, sale of its capital stock) or Xxxx-XxXxx Chemical Worldwide
LLC
(or any successor entity, including a parent entity or other affiliate
controlling Xxxx-XxXxx Chemical Worldwide LLC) completes an Initial Public
Offering, a Spin Off or a Split Off, such Guarantor shall be released from
its
obligations under each of its Guarantees with respect to each series of
Outstanding Securities issued pursuant to the provisions of this Indenture.
The
release of such Guarantor shall be effective upon delivery by the Company to
the
Trustee of an Officers’ Certificate stating that the Company has disposed of
such Guarantor in its entirety or Xxxx-XxXxx Chemical Worldwide LLC (or its
parent) has completed an Initial Public Offering, a Spin Off or a Split Off,
as
applicable, in accordance with the provisions of this Section 8.06.
Section
1.2 The
following definition in Section 1.01 of the Indenture is hereby amended and
restated in its entirety as follows:
“Eligible
Guarantors”
means Xxxx-XxXxx Chemical Worldwide, LLC and HS Resources, Inc., a Delaware
corporation (now
Xxxx-XxXxx Rocky Mountain Corporation),
and
any other Guarantor named by the Company from time to time.
Section
1.3 The
following definition is hereby added to Section 1.01 of the Indenture in the
appropriate alphabetical order:
“Initial
Public Offering”
means the first time equity securities of an entity are offered to the public
for cash consideration in a bona fide public offering.
Section
1.4 The
following definition is hereby added to Section 1.01 of the Indenture in the
appropriate alphabetical order:
“Spin
Off”
means a pro rata dividend to the Company's shareholders of shares of capital
stock of any class relating to a Subsidiary or other business unit of the
Company.
Section
1.5 The
following definition is hereby added to Section 1.01 of the Indenture in the
appropriate alphabetical order:
“Split
Off”
means an exchange between the Company and certain of the Company's shareholders
of shares of capital stock of any class relating to a Subsidiary or other
business unit of the Company in exchange for common stock of the Company held
by
such shareholder.
Section
1.6 Exhibit
A to the Indenture is hereby amended and restated in its entirety as
follows:
EXHIBIT
A
[FORM
OF NOTATION OF SECURITY RELATING TO GUARANTEE]
GUARANTEE
[Name
of Guarantor]
(hereinafter referred to as the “Guarantor”, which term includes any successor
person under the Indenture (the “Indenture”) referred to in the Security upon
which this notation is endorsed (the “Endorsed Security”)) has unconditionally
guaranteed (i) the due and punctual payment of the principal of, premium, if
any, and interest on the Endorsed Security and all other Securities of the
same
series as the Endorsed Security (the “Guaranteed Securities”), whether at
maturity, by acceleration or otherwise, the due and punctual payment of interest
on the overdue principal of, premium, if any, and interest, if any, on the
Guaranteed Securities, to the extent lawful, and the due and punctual
performance of all other obligations of the Company to the Holders of Guaranteed
Securities or the Trustee all in accordance with the terms set forth in Article
Fifteen of the Indenture and (ii) in case of any extension of time of payment
or
renewal of any Guaranteed Securities or any of such other obligations, that
the
same will be promptly paid in full when due or performed in accordance with
the
terms of the extension or renewal, whether at stated maturity, by acceleration
or otherwise. Capitalized terms not otherwise defined herein shall have the
meanings ascribed thereto in the Indenture.
The
obligations of the Guarantor to the Holders of Guaranteed Securities and to
the
Trustee pursuant to the Guarantee evidenced hereby and the Indenture are
expressly set forth in Article Fifteen of the Indenture and reference is hereby
made to such Indenture for the terms of such Guarantee.
No
stockholder, officer, director or incorporator, as such, past, present or
future, of the Guarantor shall have any personal liability under the Guarantee
evidenced hereby by reason of his or its status as such stockholder, officer,
director or incorporator.
The
Guarantee evidenced hereby shall not be valid or obligatory for any purpose
until the certificate of authentication of the Guaranteed Securities shall
have
been executed by the Trustee under the Indenture by the manual signature of
one
of the Trustee’s authorized officers.
Guarantor
[NAME
OF GUARANTOR]
By
By
ARTICLE
II
MISCELLANEOUS
PROVISIONS
Section
2.1. Except
as otherwise defined or unless the context otherwise requires, capitalized
terms
used in this Supplemental Indenture and defined in the Indenture shall have
the
meanings specified in the Indenture.
Section
2.2. Except
as specifically amended and supplemented by this Supplemental Indenture, the
Indenture shall remain in full force and effect and is hereby ratified and
confirmed.
Section
2.3. This
Supplemental Indenture shall be deemed to be a contract made under the law
of
the State of New York and for all purposes shall be construed in accordance
with
the law of said State.
Section
2.4. All
agreements of the Company in this Supplemental Indenture shall bind its
successors and assigns. All agreements of the Trustee in this Supplemental
Indenture shall bind its successors and assigns.
Section
2.5. The
Trustee accepts the modification of the Indenture as hereby effected but only
upon the terms and conditions set forth in the Indenture, as amended and
supplemented by this Supplemental Indenture.
Section
2.6. This
Supplemental Indenture may be executed in any number of counterparts, each
of
which so executed shall be deemed to be an original, but all such counterparts
shall together constitute but one and the same instrument.
[SIGNATURE
PAGE FOLLOWS]
IN
WITNESS WHEREOF, the parties hereto have caused this Supplemental Indenture
to
be duly executed and attested, all as of the day and year first above
written.
XXXX-XXXXX
CORPORATION
By
/s/ Xxxxxxxxx X. Xxxx
Name:
Xxxxxxxxx X. Xxxx
Title:
Vice President and Treasurer
Attest:
/s/
Xxxxxxx X. Xxxxxxx
Name:
Xxxxxxx X. Xxxxxxx
Title:
Secretary
CITIBANK,
N.A.
By
/s/ Xxxx X. Xxxxxx
Name:
Xxxx X. Xxxxxx
Title:
Vice President
Attest:
/s/
Xxxxx Xxxxxxxxxx
Name:
Xxxxx Xxxxxxxxxx
Title:
Vice President
