XXXXXXX-XXXXX, INC.
XXXXXXX-XXXXX GROUP, INC.
XXXXXXX-XXXXX REALTY LLC
XXXXXXX-XXXXX AGRIBUSINESS REALTY LLC
XXXXXXX-XXXXX XXXXXX'X REALTY LLC
XXXXXXX-XXXXX NITROGEN REALTY LLC
XXXXXXX-XXXXX RESOURCES LLC
IMC AGRIBUSINESS, INC.
XXXXXX'X XX SERVICES, INC.
IMC NITROGEN COMPANY
10 1/4% FIRST MORTGAGE NOTES DUE 2009
INDENTURE
Dated as of April 22, 1999
United States Trust Company of New York
Trustee
CROSS-REFERENCE TABLE*
Trust Indenture
Act Section Indenture Section
310(a)(1)........................................ 7.10
(a)(2)........................................ 7.10
(a)(3)........................................ N.A.
(a)(4)........................................ N.A.
(a)(5)........................................ 7.10
(b)........................................... 7.10
(c)........................................... N.A.
311(a)........................................... 7.11
(b)........................................... 7.11
(c)........................................... N.A.
312(a)........................................... 2.05
(b)........................................... 12.03
(c)........................................... 12.03
313(a)........................................... 7.06
(b)(1)........................................ 10.03
(b)(2)........................................ 7.07
(c)........................................... 7.06;12.02
(d)........................................... 7.06
314(a)........................................... 4.03;12.02
(b)........................................... 10.02
(c)(1)........................................ 12.04
(c)(2)........................................ 12.04
(c)(3)........................................ N.A.
(d)........................................... 10.03,10.04,
10.05
(e)........................................... 12.05
(f)........................................... N.A.
315(a)........................................... 7.01
(b)........................................... 7.05,12.02
(c)........................................... 7.01
(d)........................................... 7.01
(e)........................................... 6.11
316(a) (last sentence)........................... 2.09
(a)(1)(A)..................................... 6.05
(a)(1)(B)..................................... 6.04
(a)(2)........................................ N.A.
(b)........................................... 6.07
(c)........................................... 2.12
317(a)(1)........................................ 6.08
(a)(2)........................................ 6.09
(b)........................................... 2.04
318(a)........................................... 12.01
(b)........................................... N.A.
(c)........................................... 12.01
N.A. means not applicable.
* This Cross Reference Table is not part of the Indenture.
TABLE OF CONTENTS
Page
ARTICLE 1. DEFINITIONS AND INCORPORATION BY REFERENCE
Section 1.01. Definitions ..................................... 1
Section 1.02. Other Definitions ............................... 19
Section 1.03. Incorporation by Reference of Trust Indenture Act 20
Section 1.04. Rules of Construction ........................... 20
ARTICLE 2. THE FIRST MORTGAGE NOTES
Section 2.01. Form and Dating ................................. 20
Section 2.02. Execution and Authentication .................... 21
Section 2.03. Registrar and Paying Agent ...................... 22
Section 2.04. Paying Agent to Hold Money in Trust ............. 22
Section 2.05. Holder Lists .................................... 23
Section 2.06. Transfer and Exchange ........................... 23
Section 2.07. Replacement First Mortgage Notes ................ 34
Section 2.08. Outstanding First Mortgage Notes ................ 34
Section 2.09. Treasury First Mortgage Notes ................... 34
Section 2.10. Temporary First Mortgage Notes .................. 35
Section 2.11. Cancellation .................................... 35
Section 2.12. Defaulted Interest .............................. 35
ARTICLE 3. REDEMPTION AND PREPAYMENT
Section 3.01. Notices to Trustee .............................. 36
Section 3.02. Selection of First Mortgage Notes to Be
Redeemed ....................................... 36
Section 3.03. Notice of Redemption ............................ 36
Section 3.04. Effect of Notice of Redemption .................. 37
Section 3.05. Deposit of Redemption Price ..................... 37
Section 3.06. First Mortgage Notes Redeemed in Part ........... 38
Section 3.07. Optional Redemption ............................. 38
Section 3.08. Mandatory Redemption ............................ 38
Section 3.09. Offer to Purchase by Application of Excess
Proceeds ....................................... 39
ARTICLE 4. COVENANTS
Section 4.01. Payment of First Mortgage Notes ................. 40
Section 4.02. Maintenance of Office or Agency ................. 40
Section 4.03. Reports ......................................... 41
Section 4.04. Compliance Certificate .......................... 41
Section 4.05. Taxes ........................................... 42
Section 4.06. Stay, Extension and Usury Laws .................. 42
Section 4.07. Restricted Payments ............................. 42
Section 4.08. Dividend and Other Payment Restrictions
Affecting Restricted Subsidiaries .............. 45
Section 4.09. Incurrence of Indebtedness and Issuance of
Preferred Stock ................................ 46
Section 4.10. Asset Sales ..................................... 49
Section 4.11. Transactions with Affiliates .................... 50
Section 4.12. Liens ........................................... 51
i
Section 4.13. Line of Business ................................ 51
Section 4.14. Corporate Existence ............................. 51
Section 4.15. Offer to Repurchase Upon Change of Control ...... 51
Section 4.16. Sale of Nitrogen Facility ....................... 52
Section 4.17. Limitation on Sale and Leaseback Transactions ... 53
Section 4.18. Limitation on Issuances and Sales of Capital
Stock of Wholly Owned Restricted Subsidiaries .. 53
Section 4.19. Advances to Subsidiaries ........................ 53
Section 4.20. Payments for Consent ............................ 54
Section 4.21. Additional Guarantees ........................... 54
Section 4.22. Master Conveyance Agreement ..................... 54
ARTICLE 5. SUCCESSORS
Section 5.01. Merger, Consolidation, or Sale of Assets ........ 55
Section 5.02. Successor Corporation Substituted ............... 55
ARTICLE 6. DEFAULTS AND REMEDIES
Section 6.01. Events of Default ............................... 56
Section 6.02. Acceleration .................................... 57
Section 6.03. Other Remedies .................................. 58
Section 6.04. Waiver of Past Defaults ......................... 58
Section 6.05. Control by Majority ............................. 59
Section 6.06. Limitation on Suits ............................. 59
Section 6.07. Rights of Holders of First Mortgage Notes to
Receive Payment ................................ 59
Section 6.08. Collection Suit by Trustee ...................... 59
Section 6.09. Trustee May File Proofs of Claim ................ 60
Section 6.10. Priorities ...................................... 60
Section 6.11. Undertaking for Costs ........................... 60
ARTICLE 7. TRUSTEE
Section 7.01. Duties of Trustee................................ 61
Section 7.02. Rights of Trustee ............................... 62
Section 7.03. Individual Rights of Trustee .................... 62
Section 7.04. Trustee's Disclaimer ............................ 62
Section 7.05. Notice of Defaults .............................. 62
Section 7.06. Reports by Trustee to Holders of the First
Mortgage Notes ................................. 63
Section 7.07. Compensation and Indemnity ...................... 63
Section 7.08. Replacement of Trustee .......................... 64
Section 7.09. Successor Trustee by Xxxxxx, etc ................ 65
Section 7.10. Eligibility; Disqualification ................... 65
Section 7.11. Preferential Collection of Claims Against
Company ........................................ 65
ARTICLE 8. LEGAL DEFEASANCE AND COVENANT DEFEASANCE
Section 8.01. Option to Effect Legal Defeasance or Covenant
Defeasance ..................................... 65
Section 8.02. Legal Defeasance and Discharge .................. 65
Section 8.03. Covenant Defeasance ............................. 66
Section 8.04. Conditions to Legal or Covenant Defeasance ...... 66
ii
Section 8.05. Deposited Money and Government Securities to
be Held in Trust; Other Miscellaneous
Provisions ..................................... 67
Section 8.06. Repayment to Company ............................ 68
Section 8.07. Reinstatement ................................... 68
ARTICLE 9. AMENDMENT, SUPPLEMENT AND WAIVER
Section 9.01. Without Consent of Holders of First Mortgage
Notes .......................................... 68
Section 9.02. With Consent of Holders of First Mortgage
Notes .......................................... 69
Section 9.03. Compliance with Trust Indenture Act ............. 71
Section 9.04. Revocation and Effect of Consents ............... 71
Section 9.05. Notation on or Exchange of First Mortgage
Notes .......................................... 71
Section 9.06. Trustee to Sign Amendments, etc ................. 71
ARTICLE 10. COLLATERAL AND SECURITY
Section 10.01. Security Agreements ............................ 72
Section 10.02. Recording and Opinions ......................... 72
Section 10.03. Release of Collateral .......................... 73
Section 10.04. Certificates of the Company .................... 73
Section 10.05. Certificates of the Trustee .................... 74
Section 10.06. Authorization of Actions to Be Taken by the
Trustee Under the Security Agreements ......... 74
Section 10.07. Authorization of Receipt of Funds by the
Trustee Under the Security Agreements ......... 74
Section 10.08. Impact of Event of Default ..................... 74
Section 10.09. Termination of Security Interest ............... 75
ARTICLE 11. GUARANTEES
Section 11.01. Guarantee ...................................... 75
Section 11.02. Limitation on Guarantor Liability .............. 76
Section 11.03. Execution and Delivery of Guarantee ............ 76
Section 11.04. Guarantors May Consolidate, etc., on Certain
Terms ......................................... 77
Section 11.05. Releases Following Sale of Assets .............. 77
ARTICLE 12. MISCELLANEOUS
Section 12.01. Trust Indenture Act Controls ................... 78
Section 12.02. Notices ........................................ 78
Section 12.03. Communication by Holders of First Mortgage
Notes with Other Holders of First Mortgage
Notes.......................................... 79
Section 12.04. Certificate and Opinion as to Conditions
Precedent ..................................... 79
Section 12.05. Statements Required in Certificate or
Opinion ....................................... 79
Section 12.06. Rules by Trustee and Agents .................... 80
Section 12.07. No Personal Liability of Directors,
Officers, Employees and Stockholders .......... 80
Section 12.08. Governing Law .................................. 80
Section 12.09. No Adverse Interpretation of Other
Agreements..................................... 80
Section 12.10. Successors ..................................... 80
Section 12.11. Severability ................................... 80
Section 12.12. Counterpart Originals .......................... 81
iii
Section 12.13. Table of Contents, Headings, etc ............... 81
EXHIBITS
Exhibit A-1 FORM OF NOTE
Exhibit A-2 FORM OF REGULATION S TEMPORARY GLOBAL NOTE
Exhibit B FORM OF CERTIFICATE OF TRANSFER
Exhibit C FORM OF CERTIFICATE OF EXCHANGE
Exhibit D FORM OF GUARANTEE
Exhibit E FORM OF SUPPLEMENTAL INDENTURE
Exhibit F FORM OF SECURITY AGREEMENTS
Exhibit G FORM OF SUBSIDIARY INTERCOMPANY NOTE
Exhibit H SCHEDULE OF GUARANTORS
iv
INDENTURE dated as of April 22, 1999 among Xxxxxxx-Xxxxx, Inc., a Delaware
corporation (the "Company"), the corporations listed on Exhibit H hereto (each a
"Guarantor" and collectively, the "Guarantors") and United States Trust Company
of New York, as trustee (the "Trustee").
The Company and the Trustee agree as follows for the benefit of each other
and for the equal and ratable benefit of the Holders of the 10 1/4% First
Mortgage Notes due 2009 (the "Series A First Mortgage Notes") and the 10 1/4%
First Mortgage Notes due 2009 (the "Series B First Mortgage Notes" and, together
with the Series A First Mortgage Notes, the "First Mortgage Notes"):
ARTICLE 1.
DEFINITIONS AND INCORPORATION
BY REFERENCE
Section 1.01 Definitions.
"399 Ventures" means 399 Venture Partners, Inc., an affiliate of Citicorp
Venture Capital Ltd.
"Acquired Debt" means, with respect to any specified Person, (i)
Indebtedness of any other Person existing at the time such other Person is
merged with or into or became a Restricted Subsidiary of such specified Person,
whether or not such Indebtedness is incurred in connection with, or in
contemplation of, such other Person merging with or into, or becoming a
Restricted Subsidiary of, such specified Person; provided, that Indebtedness of
such other Person that is redeemed, defeased, retired or otherwise repaid at the
time, or immediately upon consummation, of the transaction by which such other
person is merged with or into or became a Restricted Subsidiary of such Person
shall not be Acquired Debt and (ii) Indebtedness secured by a Lien encumbering
any asset acquired by such specified Person.
"Additional First Mortgage Notes" means up to $10.0 million aggregate
principal amount of First Mortgage Notes (other than the Initial First Mortgage
Notes) issued under this Indenture in accordance with Sections 2.02 and 4.09
hereof, as part of the same series as the Initial First Mortgage Notes.
"Affiliate" of any specified Person means any other Person directly or
indirectly controlling or controlled by or under direct or indirect common
control with such specified Person. For purposes of this definition, "control",
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 that beneficial ownership of 10% or more of the
Voting Stock of a Person shall be deemed to be control. For purposes of this
definition, the terms "controlling," "controlled by" and "under common control
with" shall have correlative meanings.
"Agent" means any Registrar, Paying Agent or co-registrar.
"Applicable Procedures" means, with respect to any transfer or exchange of
or for beneficial interests in any Global Note, the rules and procedures of the
Depositary, Euroclear and Cedel that apply to such transfer or exchange.
"Asset Sale" means (i) the sale, lease, conveyance or other disposition of
any assets or rights, other than sales of inventory and equipment in the
ordinary course of business consistent with past practices and other than a
Receivables Transaction; provided that the sale, conveyance or other disposition
of all or substantially all of the assets of the Company and its Restricted
Subsidiaries taken as a whole will be governed by Section 4.15 hereof and/or the
provisions described in Section 5.01 hereof and not by the provisions of Section
4.10 hereof; provided further, that (a) the sale, conveyance or other
disposition of all or substantially all of the assets constituting the Company's
East Dubuque, Illinois nitrogen facility or of the Equity Interests of any
Subsidiary which directly or indirectly owns such facility or (b) the sale,
conveyance or other disposition of all or substantially all of the assets
constituting such East Dubuque facility together with all or substantially all
of the assets constituting the Company's Cincinnati, Ohio nitrogen facility or
any Subsidiary or Subsidiaries which own directly or indirectly such facilities,
in each case in accordance with the Security Agreements, shall be governed by
Section 4.16 hereof and not by the provisions of Section 4.10 hereof and (ii)
the issuance of Equity Interests by any of the Company's Restricted Subsidiaries
or the sale of Equity Interests in any of its Restricted Subsidiaries.
Notwithstanding the preceding, the following items shall not be deemed to be
Asset Sales: (i) any single transaction or series of related transactions that
involves assets having a fair market value of less than $1.0 million; (ii) a
transfer of assets between or among the Company and its Wholly Owned
Subsidiaries, (iii) an issuance of Equity Interests by a Wholly Owned Subsidiary
to the Company or to another Wholly Owned Subsidiary; (iv) the sale or lease of
equipment, inventory, accounts receivable or other assets in the ordinary course
of business including dispositions of assets that are obsolete or no longer
useful in the business consistent with past practices; (v) the sale or other
disposition of cash or Cash Equivalents; and (vi) a Restricted Payment or
Permitted Investment that is permitted by the covenant described in Section 4.07
hereof.
"Attributable Debt" in respect of a sale and leaseback transaction means,
at the time of determination, the present value of the obligation of the lessee
for net rental payments during the remaining term of the lease included in such
sale and leaseback transaction including any period for which such lease has
been extended or may, at the option of the lessor, be extended. Such present
value shall be calculated using a discount rate equal to the rate of interest
implicit in such transaction, determined in accordance with GAAP.
"Bankruptcy Law" means Title 11, U.S. Code or any similar federal or state
law for the relief of debtors.
"Beneficial Owner" has the meaning assigned to such term in Rule 13d-3 and
Rule 13d-5 under the Exchange Act, except that in calculating the beneficial
ownership of any particular "person" (as that term is used in Section 13(d)(3)
of the Exchange Act), such "person" shall be deemed to have beneficial ownership
of all securities that such "person" has the right to acquire by conversion or
exercise of other securities, whether such right is currently exercisable or is
exercisable only upon the occurrence of a subsequent condition. The terms
"Beneficially Owns" and "Beneficially Owned" shall have a corresponding meaning.
"Board of Directors" means (i) with respect to a corporation, the board of
directors of the corporation, (ii) with respect to a partnership, the Board of
Directors of the general partner of the partnership and (iii) with respect to
any other Person, the board or committee of such Person serving a similar
function.
"Borrowing Base" means, as of any date, an amount equal to (i) 80% (or 85%
during the months of September, October and November) of the face amount of net
regular accounts receivable owned by the Company and its Restricted Subsidiaries
determined in accordance with GAAP, plus (ii) 70% (or 75% during the months of
September, October and November) of the face amount of net crop/extended term
receivables owned by the Company and its Subsidiaries determined by the Company
in good faith and in accordance with past practice, plus (iii) 65% (or 70%
2
during the months of September, October and November) of the net book value of
all inventory owned by the Company and its Restricted Subsidiaries determined in
accordance with GAAP.
"Broker-Dealer" has the meaning set forth in the Registration Rights
Agreement.
"Business Day" means any day other than a Legal Holiday.
"Capital Lease Obligation" means, at the time any determination thereof is
to be made, the amount of the liability in respect of a capital lease that would
at that time be required to be capitalized on a balance sheet in accordance with
GAAP.
"Capital Stock" means (i) in the case of a corporation, corporate stock,
(ii) in the case of an association or business entity, any and all shares,
interests, participations, rights or other equivalents (however designated) of
corporate stock, (iii) in the case of a partnership or limited liability
company, partnership or membership interests (whether general or limited) and
(iv) any other interest or participation that confers on a Person the right to
receive a share of the profits and losses of, or distributions of assets of, the
issuing Person.
"Cash Equivalents" means (i) United States dollars, (ii) securities issued
or directly and fully guaranteed or insured by the United States government or
any agency or instrumentality thereof (provided that the full faith and credit
of the United States is pledged in support thereof) having maturities of not
more than six months from the date of acquisition, (iii) certificates of deposit
and eurodollar time deposits with maturities of six months or less from the date
of acquisition, bankers' acceptances with maturities not exceeding six months
and overnight bank deposits, in each case, with any lender party to the Credit
Agreement or with any domestic commercial bank having capital and surplus in
excess of $500.0 million and a Xxxxxxxx Bank Watch Rating of "B" or better, (iv)
repurchase obligations with a term of not more than seven days for underlying
securities of the types described in clauses (ii) and (iii) above entered into
with any financial institution meeting the qualifications specified in clause
(iii) above, (v) obligations issued or fully guaranteed by any state of the
United States or any political subdivision of any such state or any public
instrumentality thereof maturing within six months from the date of acquisition
thereof and at the time of acquisition, having one of the two highest ratings
obtainable from either Xxxxx'x Investors Service, Inc. or Standard & Poor's
Rating Services; (vi) commercial paper having the highest rating obtainable from
Xxxxx'x Investors Service, Inc. or Standard & Poor's Rating Services and in each
case maturing within six months after the date of acquisition; and (vii) money
market funds at least 95% of the assets of which constitute Cash Equivalents of
the kinds described in clauses (i) through (vi) of this definition.
"Cedel" means Cedel Bank, SA.
"Certificated Note" means a certificated First Mortgage Note registered in
the name of the Holder thereof and issued in accordance with Section 2.06
hereof, substantially in the form of Exhibit A-1 hereto except that such First
Mortgage Note shall not bear the Global Note Legend and shall not have the
"Schedule of Exchanges of Interests in the Global Note" attached thereto.
"Change of Control" means the occurrence of any of the following: (i) the
direct or indirect sale, transfer, conveyance or other disposition (other than
by way of merger or consolidation), in one or a series of related transactions,
of all or substantially all of the properties or assets of the Company and its
Subsidiaries taken as a whole to any "person" (as that term is used in Section
13(d)(3) of the Exchange Act) other than the Company, any Wholly-Owned
Restricted Subsidiary of the Company, a Principal or a Related Party of a
3
Principal; (ii) the adoption of a plan relating to the liquidation or
dissolution of the Company; (iii) the consummation of any transaction
(including, without limitation, any merger or consolidation) the result of which
is that any "person" (as defined above), other than the Principals and their
Related Parties, becomes the Beneficial Owner, directly or indirectly, of more
than 50% of the Voting Stock and the stock convertible into Voting Stock of the
Company, measured by voting power rather than number of shares; (iv) during any
period in which neither the Company nor Xxxxxxx-Xxxxx Group is a public
reporting company under the Securities and Exchange Act of 1934, as amended, the
consummation of the first transaction (including, without limitation, any merger
or consolidation) the result of which is that any "person" (as defined above)
becomes the Beneficial Owner, directly or indirectly, of more of the Voting
Stock and stock convertible into Voting Stock of the Company (measured by voting
power rather than number of shares) than is at the time Beneficially Owned by
CVC, 399 Ventures and their Related Parties in the aggregate; or (v) the first
day on which a majority of the members of the Board of Directors of the Company
are not Continuing Directors.
"Collateral" means the PPE and the pledge of all of the equity interests of
the Special Purpose Restricted Subsidiaries.
"Collateral Agent" means United States Trust Company of New York.
"Company" means Xxxxxxx-Xxxxx, Inc., and any and all successors thereto.
"Comparable Treasury Issue" means the United States Treasury security
selected by an Independent Investment Banker as having a maturity comparable to
April 1, 2009 that would be utilized, at the time of selection and in accordance
with customary financial practice, in pricing new issues of corporate debt
securities of comparable maturity to the remaining life of the First Mortgage
Notes.
"Comparable Treasury Price" means, with respect to any date of redemption,
(i) the average of the bid and asked prices for the Comparable Treasury Issue
(expressed in each case as a percentage of its principal amount) on the third
business day preceding such date of redemption, as set forth in the daily
statistical release (or any successor release) published by the Federal Reserve
Bank of New York and designated "Composite 3:30 p.m. Quotations for U.S.
Government Securities," or (ii) if such release (or any successor release) is
not published or does not contain such prices on such business day, the average
of the Reference Treasury Dealer Quotations.
"Consolidated Cash Flow" means, with respect to any specified Person for
any period, the Consolidated Net Income of such Person for such period plus (i)
an amount equal to any extraordinary loss plus any net loss realized by such
Person or any of its Restricted Subsidiaries in connection with an Asset Sale,
to the extent such losses were deducted in computing such Consolidated Net
Income, plus (ii) provision for taxes based on income or profits of such Person
and its Restricted Subsidiaries for such period, to the extent that such
provision for taxes was deducted in computing such Consolidated Net Income, plus
(iii) consolidated interest expense of such Person and its Restricted
Subsidiaries for such period, whether paid or accrued and whether or not
capitalized (including, without limitation, amortization of debt issuance costs
and original issue discount, non-cash interest payments, the interest component
of any deferred payment obligations, the interest component of all payments
associated with Capital Lease Obligations, imputed interest with respect to
Attributable Debt, commissions, discounts and other fees and charges incurred in
respect of letter of credit or bankers' acceptance financings, and net of the
effect of all payments made or received pursuant to Hedging Obligations), to the
extent that any such expense was deducted in computing such Consolidated Net
Income, plus (iv) depreciation, amortization (including amortization of goodwill
and other intangibles but excluding amortization of prepaid cash expenses that
4
were paid in a prior period) and other non-cash expenses (excluding any such
non-cash expense to the extent that it represents an accrual of or reserve for
cash expenses in any future period or amortization of a prepaid cash expense
that was paid in a prior period) of such Person and its Restricted Subsidiaries
for such period to the extent that such depreciation, amortization and other
non-cash expenses were deducted in computing such Consolidated Net Income, minus
(iv) non-cash items increasing such Consolidated Net Income for such period,
other than the accrual of revenue in the ordinary course of business, in each
case, on a consolidated basis and determined in accordance with GAAP.
Notwithstanding the preceding, the provision for taxes based on the income or
profits of, and the depreciation and amortization and other non-cash expenses
of, a Restricted Subsidiary of the Company shall be added to Consolidated Net
Income to compute Consolidated Cash Flow of the Company only to the extent that
a corresponding amount would be permitted at the date of determination to be
dividend to the Company by such Restricted Subsidiary without prior governmental
approval (that has not been obtained), and without direct or indirect
restriction pursuant to the terms of its charter and all agreements,
instruments, judgments, decrees, orders, statutes, rules and governmental
regulations applicable to that Subsidiary or its stockholders.
"Consolidated Net Income" means, with respect to any specified Person for
any period, the aggregate of the Net Income of such Person and its Restricted
Subsidiaries for such period, on a consolidated basis, determined in accordance
with GAAP; provided that (i) the Net Income (but not loss) of any Person that is
not a Restricted Subsidiary or that is accounted for by the equity method of
accounting shall be included only to the extent of the amount of dividends or
distributions paid in cash to the specified Person or a Wholly Owned Restricted
Subsidiary thereof, (ii) the Net Income of any Restricted Subsidiary shall be
excluded to the extent that the declaration or payment of dividends or similar
distributions by that Restricted Subsidiary of that Net Income is not at the
date of determination permitted without any prior governmental approval (that
has not been obtained) or, directly or indirectly, by operation of the terms of
its charter or any agreement, instrument, judgment, decree, order, statute, rule
or governmental regulation applicable to that Restricted Subsidiary or its
stockholders, (iii) the Net Income of any Person acquired in a pooling of
interests transaction for any period prior to the date of such acquisition shall
be excluded and (iv) the cumulative effect of a change in accounting principles
shall be excluded.
"Consolidated Net Worth" means, with respect to any specified Person as of
any date, the sum of (i) the consolidated equity of the common stockholders of
such Person and its consolidated Restricted Subsidiaries (not including
Xxxxxxx-Xxxxx Group with respect to the Company) as of such date, plus (ii) the
respective amounts reported on such Person's balance sheet as of such date with
respect to any series of preferred stock (other than Disqualified Stock) that by
its terms is not entitled to the payment of dividends unless such dividends may
be declared and paid only out of net earnings in respect of the year of such
declaration and payment, but only to the extent of any cash received by such
Person upon issuance of such preferred stock.
"Continuing Directors" means, as of any date of determination, any member
of the Board of Directors of the Company who (i) was a member of such Board of
Directors on the date of this Indenture or (ii) was nominated for election or
elected to such Board of Directors with the approval of a majority of the
Continuing Directors who were members of such Board at the time of such
nomination or election.
"Corporate Trust Office of the Trustee" shall be at the address of the
Trustee specified in Section 12.02 hereof or such other address as to which the
Trustee may give notice to the Company.
"Credit Agreement" means that certain Credit Agreement, dated as of April
22, 1999, by and among the Company, DLJ Capital Funding as manager and
syndication agent and the parties thereto, providing for up to $275.0 million of
revolving credit borrowings, including any related notes, guarantees, collateral
5
documents, instruments and agreements executed in connection therewith, and in
each case as amended, modified, renewed, refunded, replaced or refinanced from
time to time.
"Credit Facilities" means, one or more debt facilities (including, without
limitation, the Credit Agreement) or commercial paper facilities, in each case
with banks or other institutional lenders providing for revolving credit loans,
term loans, receivables financing (including through the sale of receivables to
such lenders or to special purpose entities formed to borrow from such lenders
against such receivables) or letters of credit, in each case, as amended,
restated, modified, renewed, refunded, replaced or refinanced in whole or in
part from time to time.
"Custodian" means the Trustee, as custodian with respect to the First
Mortgage Notes in global form, or any successor entity thereto.
"CVC" means Citicorp Venture Capital Ltd., a New York corporation, or any
successor thereto by merger or consolidation.
"Default" means any event that is, or with the passage of time or the
giving of notice or both would be, an Event of Default.
"Depositary" means, with respect to the First Mortgage Notes issuable or
issued in whole or in part in global form, the Person specified in Section 2.03
hereof as the Depositary with respect to the First Mortgage Notes, and any and
all successors thereto appointed as depositary hereunder and having become such
pursuant to the applicable provision of this Indenture.
"Disqualified Stock" means any Capital Stock that, by its terms (or by the
terms of any security into which it is convertible, or for which it is
exchangeable, in each case at the option of the holder thereof), or upon the
happening of any event, matures or is mandatorily redeemable, pursuant to a
sinking fund obligation or otherwise, or redeemable at the option of the holder
thereof, in whole or in part, on or prior to the date that is 91 days after the
date on which the First Mortgage Notes mature. Notwithstanding the preceding
sentence, any Capital Stock that would constitute Disqualified Stock solely
because the holders thereof have the right to require the Company to repurchase
such Capital Stock upon the occurrence of a change of control or an asset sale
shall not constitute Disqualified Stock if the terms of such Capital Stock
provide that the Company may not repurchase or redeem any such Capital Stock
pursuant to such provisions unless such repurchase or redemption complies with
the covenant described in Section 4.07 hereof.
"Equity Interests" means Capital Stock and all warrants, options or other
rights to acquire Capital Stock (but excluding any debt security that is
convertible into, or exchangeable for, Capital Stock).
"Euroclear" means Xxxxxx Guaranty Trust Company of New York, Brussels
office, as operator of the Euroclear system.
"Exchange Act" means the Securities Exchange Act of 1934, as amended.
"Exchange Offer" has the meaning set forth in the Registration Rights
Agreement.
"Exchange Offer Registration Statement" has the meaning set forth in the
Registration Rights Agreement.
6
"Excluded Assets" means all of the accounts receivable, inventory, certain
general intangibles and certain other tangible and intangible property and
assets of the Company and its subsidiaries and the common stock of the Company
and its subsidiaries (other than the pledge of all of the equity interests of
Xxxxxxx-Xxxxx Realty LLC, Xxxxxxx-Xxxxx AgriBusiness LLC, Xxxxxxx-Xxxxx Nitrogen
Realty LLC and Xxxxxxx-Xxxxx Xxxxxx'x Realty LLC), which will secure the
Company's and the Guarantors' obligations under the Credit Agreement.
"Existing Indebtedness" means up to $7.1 million in aggregate principal
amount of Indebtedness of the Company and its Restricted Subsidiaries (other
than Indebtedness under the Credit Agreement) in existence on the date of this
Indenture, until such amounts are repaid.
"First Mortgage Notes" has the meaning assigned to it in the preamble to
this Indenture. The Initial First Mortgage Notes and the Additional First
Mortgage Notes shall be treated as a single class for all purposes under this
Indenture.
"Fixed Charges" means, with respect to any specified Person for any period,
the sum, without duplication, of (i) the consolidated interest expense (other
than accretion of interest on the non-cash pay subordinated notes issued to IMC
Global, 399 Ventures and Management Investors for purposes of calculating the
Fixed Charges of Xxxxxxx-Xxxxx Group) of such Person and its Restricted
Subsidiaries (other than Xxxxxxx-Xxxxx Group for purposes of computing
consolidated interest expense for any Person other than Xxxxxxx-Xxxxx Group) for
such period, whether paid or accrued, including, without limitation,
amortization of debt issuance costs and original issue discount, non-cash
interest payments, the interest component of any deferred payment obligations,
the interest component of all payments associated with Capital Lease
Obligations, imputed interest with respect to Attributable Debt, commissions,
discounts and other fees and charges incurred in respect of letter of credit or
bankers' acceptance financings, and net of the effect of all payments made or
received pursuant to Hedging Obligations, plus (ii) the consolidated interest of
such Person and its Restricted Subsidiaries (other than Xxxxxxx-Xxxxx Group for
purposes of computing consolidated interest capitalized for any Person other
than Xxxxxxx-Xxxxx Group) that was capitalized during such period, plus (iii)
any interest expense on Indebtedness of another Person that is Guaranteed by
such Person or one of its Restricted Subsidiaries (other than Xxxxxxx-Xxxxx
Group for purposes of computing such amount for any Person other than
Xxxxxxx-Xxxxx Group) or secured by a Lien on assets of such Person or one of its
Restricted Subsidiaries (other than Xxxxxxx-Xxxxx Group for purposes of
computing such amount for any Person other than Xxxxxxx-Xxxxx Group), whether or
not such Guarantee or Lien is called upon, plus (iv) the product of (a) all
dividends, whether paid or accrued, whether or not in cash, on any series of
preferred stock of such Person or any of its Restricted Subsidiaries (other than
Xxxxxxx-Xxxxx Group for purposes of computing such amount for any Person other
than Xxxxxxx-Xxxxx Group), other than dividends on Equity Interests payable
solely in Equity Interests of the Company (other than Disqualified Stock) or to
the Company or a Restricted Subsidiary of the Company, times (b) a fraction, the
numerator of which is one and the denominator of which is one minus the then
current combined federal, state and local statutory tax rate of such Person,
expressed as a decimal, in each case, on a consolidated basis and in accordance
with GAAP.
"Fixed Charge Coverage Ratio" means with respect to any specified Person
for any period, the ratio of the Consolidated Cash Flow of such Person for such
period to the Fixed Charges of such Person for such period. In the event that
the specified Person or any of its Restricted Subsidiaries incurs, assumes,
Guarantees, repays, repurchases or redeems any Indebtedness (other than ordinary
working capital borrowings) or issues, repurchases or redeems preferred stock
subsequent to the commencement of the period for which the Fixed Charge Coverage
Ratio is being calculated and on or prior to the date on which the event for
which the calculation of the Fixed Charge Coverage Ratio is made (the
"Calculation Date"), then the Fixed Charge Coverage Ratio shall be calculated
7
giving pro forma effect to such incurrence, assumption, Guarantee, repayment,
repurchase or redemption of Indebtedness, or such issuance, repurchase or
redemption of preferred stock, and the use of the proceeds therefrom as if the
same had occurred at the beginning of the applicable four-quarter reference
period. In addition, for purposes of calculating the Fixed Charge Coverage Ratio
(i) acquisitions that have been made by the specified Person or any of its
Restricted Subsidiaries, including through mergers or consolidations and
including any related financing transactions, during the four-quarter reference
period or subsequent to such reference period and on or prior to the Calculation
Date shall be given pro forma effect as if they had occurred on the first day of
the four-quarter reference period and Consolidated Cash Flow for such reference
period shall be calculated on a pro forma basis in accordance with Regulation
S-X under the Securities Act, but without giving effect to clause (iii) of the
proviso set forth in the definition of Consolidated Net Income, (ii) the
Consolidated Cash Flow attributable to discontinued operations, as determined in
accordance with GAAP, and operations or businesses disposed of prior to the
Calculation Date, shall be excluded and (iii) the Fixed Charges attributable to
discontinued operations, as determined in accordance with GAAP, and operations
or businesses disposed of prior to the Calculation Date, shall be excluded, but
only to the extent that the obligations giving rise to such Fixed Charges will
not be obligations of the specified Person or any of its Restricted Subsidiaries
following the Calculation Date.
"GAAP" means generally accepted accounting principles set forth in the
opinions and pronouncements of the Accounting Principles Board of the American
Institute of Certified Public Accountants and statements and pronouncements of
the Financial Accounting Standards Board or in such other statements by such
other entity as have been approved by a significant segment of the accounting
profession, which are in effect on the date of this Indenture.
"Global Notes" means, individually and collectively, each of the Restricted
Global Notes and the Unrestricted Global Notes, substantially in the form of
Exhibit A-1 hereto issued in accordance with Section 2.01, 2.06(b)(iv),
2.06(d)(ii) or 2.06(f) hereof.
"Global Note Legend" means the legend set forth in Section 2.06(g)(ii),
which is required to be placed on all Global Notes issued under this Indenture.
"Government Securities" means direct obligations of, or obligations
guaranteed by, the United States of America, and the payment for which the
United States pledges its full faith and credit.
"Guarantee" means a guarantee other than by endorsement of negotiable
instruments for collection in the ordinary course of business, direct or
indirect, in any manner including, without limitation, by way of a pledge of
assets or through letters of credit or reimbursement agreements in respect
thereof, of all or any part of any Indebtedness.
"Guarantors" means each of (i) Xxxxxxx-Xxxxx Group and (ii) any other
subsidiary that executes a Guarantee in accordance with the provisions of this
Indenture, and their respective successors and assigns.
"Hedging Obligations" means, with respect to any specified Person, the
obligations of such Person under (i) interest rate swap agreements, interest
rate cap agreements and interest rate collar agreements and (ii) other
agreements or arrangements designed to protect such Person against fluctuations
in interest rates.
"Holder" means a Person in whose name a First Mortgage Note is registered.
"IMC Global" means IMC Global, Inc.
8
"Indebtedness" means, with respect to any specified Person, any
indebtedness of such Person, whether or not contingent, in respect of (i)
borrowed money, (ii) evidenced by bonds, notes, debentures or similar
instruments or letters of credit (or reimbursement agreements in respect
thereof), (iii) banker's acceptances, (iv) representing Capital Lease
Obligations, (v) the balance deferred and unpaid of the purchase price of any
property, except any such balance that constitutes an accrued expense or trade
payable or (vi) representing any Hedging Obligations, if and to the extent any
of the preceding items (other than letters of credit and Hedging Obligations)
would appear as a liability upon a balance sheet of the specified Person
prepared in accordance with GAAP. In addition, the term "Indebtedness" includes
all Indebtedness of others secured by a Lien on any asset of the specified
Person (whether or not such Indebtedness is assumed by the specified Person)
and, to the extent not otherwise included, the Guarantee by the specified Person
of any indebtedness of any other Person. The amount of any Indebtedness
outstanding as of any date shall be (i) the accreted value thereof, in the case
of any Indebtedness issued with original issue discount and (ii) the principal
amount thereof, together with any interest thereon that is more than 30 days
past due, in the case of any other Indebtedness.
"Indenture" means this Indenture, as amended or supplemented from time to
time.
"Independent Investment Banker" means one of the Reference Treasury Dealers
appointed by the Trustee after consultation with the Issuer.
"Indirect Participant" means a Person who holds a beneficial interest in a
Global Note through a Participant.
"Initial First Mortgage Notes" means the first $200.00 million aggregate
principal amount of First Mortgage Notes issued under this Indenture on the date
hereof.
"Investments" means, with respect to any Person, all investments by such
Person in other Persons (including Affiliates) in the forms of direct or
indirect loans (including Guarantees or other obligations), advances or capital
contributions (excluding commission, travel and similar advances to officers and
employees made in the ordinary course of business), purchases or other
acquisitions for consideration of Indebtedness, Equity Interests or other
securities, together with all items that are or would be classified as
investments on a balance sheet prepared in accordance with GAAP; provided that
an acquisition of assets, Equity Interests or other securities by the Company or
any of its Restricted Subsidiaries for consideration consisting solely of Equity
Interests (other than Disqualified Stock) of the Company or Xxxxxxx-Xxxxx Group
shall not be deemed to be an Investment. If the Company or any Restricted
Subsidiary of the Company sells or otherwise disposes of any Equity Interests of
any direct or indirect Restricted Subsidiary of the Company such that, after
giving effect to any such sale or disposition, such Person is no longer a
Restricted Subsidiary of the Company, the Company shall be deemed to have made
an Investment on the date of any such sale or disposition equal to the fair
market value of the Equity Interests of such Restricted Subsidiary not sold or
disposed of in an amount determined as provided in the final paragraph of the
covenant described in Section 4.07 hereof. The acquisition by the Company or any
Restricted Subsidiary of the Company of a Person that holds an Investment in a
third Person shall be deemed to be an Investment by the Company or such
Restricted Subsidiary in such third Person in an amount equal to the fair market
value of the Investment held by the acquired Person in such third Person in an
amount determined as provided in the final paragraph of the covenant described
in Section 4.07 hereof.
"Xxxxxxx" means Xxxxxxx X. Xxxxxxx, Xx.
9
"Legal Holiday" means a Saturday, a Sunday or a day on which banking
institutions in the City of New York 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 at a place of payment, payment may be made at that place on the
next succeeding day that is not a Legal Holiday, and no interest shall accrue on
such payment for the intervening period.
"Letter of Transmittal" means the letter of transmittal to be prepared by
the Company and sent to all Holders of the First Mortgage Notes for use by such
Holders in connection with the Exchange Offer.
"Lien" means, with respect to any asset, any mortgage, lien, pledge,
charge, security interest or encumbrance of any kind in respect of such asset,
whether or not filed, recorded or otherwise perfected under applicable law,
including any conditional sale or other title retention agreement, any lease in
the nature thereof, any option or other agreement to sell or give a security
interest in and any filing of or agreement to give any financing statement under
the Uniform Commercial Code (or equivalent statutes) of any jurisdiction.
"Liquidated Damages" means all liquidated damages then owing pursuant to
Section 5 of the Registration Rights Agreement.
"Management Investors" means the officers and employees of Xxxxxxx-Xxxxx
Group, the Company or any Subsidiary of the Company who hold Voting Stock of
Xxxxxxx-Xxxxx Group or the Company.
"Master Conveyance Agreement" means that certain agreement dated as of
April 22, 1999, between and among IMC Global, The Vigoro Corporation, the
Company and the Trustee, as Collateral Agent.
"Mortgages" means the mortgage agreements and deeds of trust entered into
by the Company and its Restricted Subsidiaries which provide for the grant by
the Company and its Restricted Subsidiaries to the Collateral Agent for the
ratable benefit of the holders of the First Mortgage Notes of mortgages and
deeds of trust in the portion of the PPE that constitute real property and the
improvements thereon.
"Net Income" means, with respect to any specified Person, the net income
(loss) of such Person, determined in accordance with GAAP and before any
reduction in respect of preferred stock dividends, excluding, however, (i) any
gain (but not loss), together with any related provision for taxes on such gain
(but not loss), realized in connection with (a) any Asset Sale or (b) the
disposition of any securities by such Person or any of its Subsidiaries or the
extinguishment of any Indebtedness of such Person or any of its Subsidiaries and
(ii) any extraordinary gain (but not loss), together with any related provision
for taxes on such extraordinary gain (but not loss).
"Net Proceeds" means the aggregate cash proceeds received by the Company or
any of its Restricted Subsidiaries in respect of any Asset Sale, sale of a
Nitrogen Facility (including, without limitation, any cash received upon the
sale or other disposition of any non-cash consideration received in any Asset
Sale or sale of a Nitrogen Facility) or from the Master Conveyance Agreement,
net of the direct costs relating to such Asset Sale, sale of a Nitrogen Facility
or Master Conveyance Agreement, including, without limitation, legal, accounting
and investment banking fees, and sales commissions, and any relocation expenses
incurred as a result thereof, taxes paid or payable as a result thereof, in each
case, after taking into account any available tax credits or deductions and any
tax sharing arrangements, and amounts required to be applied to the repayment of
Indebtedness and any reserve for adjustment in respect of the sale price of such
asset or assets established in accordance with GAAP.
10
"Nitrogen Facility" means either (i) the Company's nitrogen manufacturing
plant in East Dubuque, IL (the "East Dubuque Plant") or (ii) the East Dubuque
Plant and the Company's nitrogen production facility in Cincinnati, OH.
"Non-Recourse Debt" means Indebtedness (i) as to which neither the Company
nor any of its Restricted Subsidiaries (a) provides credit support of any kind
(including any undertaking, agreement or instrument that would constitute
Indebtedness), (b) is directly or indirectly liable (as a guarantor or
otherwise), or (c) constitutes the lender, (ii) no default with respect to which
(including any rights that the holders thereof may have to take enforcement
action against an Unrestricted Subsidiary) would permit (upon notice, lapse of
time or both) any holder of any other Indebtedness (other than the First
Mortgage Notes being offered hereby) of the Company or any of its Restricted
Subsidiaries to declare a default on such other Indebtedness or cause the
payment thereof to be accelerated or payable prior to its stated maturity and
(iii) as to which the lenders have been notified in writing that they will not
have any recourse to the stock or assets of the Company of any of its Restricted
Subsidiaries.
"Non-U.S. Person" means a Person who is not a U.S. Person.
"Obligations" means any principal, interest, penalties, fees,
indemnifications, reimbursements, damages and other liabilities payable under
the documentation governing any Indebtedness.
"Offering" means the offering of the First Mortgage Notes by the Company.
"Officer" means, with respect to any Person, the Chairman of the Board, the
Chief Executive Officer, the President, the Chief Operating Officer, the Chief
Financial Officer, the Treasurer, any Assistant Treasurer, the Controller, the
Secretary or any Vice President of such Person or any Guarantor, as applicable.
"Officers' Certificate" means a certificate signed on behalf of the Company
by two Officers of the Company, one of whom must be the principal executive
officer, the principal financial officer, the treasurer or the principal
accounting officer of the Company, that meets the requirements of Section 12.05
hereof.
"Opinion of Counsel" means an opinion from legal counsel who is reasonably
acceptable to the Trustee, that meets the requirements of Section 12.05 hereof.
The counsel may be an employee of or counsel to the Company, any Subsidiary of
the Company or any Guarantor, if applicable, or the Trustee.
"Participant" means, with respect to the Depositary, Euroclear or Cedel, a
Person who has an account with the Depositary, Euroclear or Cedel, respectively
(and, with respect to DTC, shall include Euroclear and Cedel).
"Permitted Business" means the fertilizer, seed, crop protection and
agronomic services businesses, any of the businesses engaged in by the Company
and its Restricted Subsidiaries on the date of this Indenture and such other
business activities which are incidental or related thereto.
"Permitted Investments" means (i) any Investment in the Company or in a
Wholly Owned Subsidiary of the Company that is a Guarantor, (ii) any Investment
in Cash Equivalents, (iii) any Investment by the Company or any Subsidiary of
the Company in a Person, if as a result of such Investment, (a) such Person
becomes a Wholly Owned Subsidiary of the Company and a Guarantor or (b) such
Person is merged, consolidated or amalgamated with or into, or transfers or
conveys substantially all of its assets to, or is liquidated into, the Company
or a Wholly Owned Subsidiary of the Company that is a Guarantor, (iv) any
Investment made as a result of the receipt of non-cash consideration from an
11
Asset Sale that was made pursuant to and in compliance with the covenant
described in Section 4.10 hereof, (v) any acquisition of stock or assets solely
in exchange for the issuance of Equity Interests (other than Disqualified Stock)
of the Company or Xxxxxxx-Xxxxx Group, (vi) Hedging Obligations, (vii)
Investments in securities of trade creditors or customers received in settlement
of obligations or pursuant to a plan of reorganization or similar arrangement
upon the bankruptcy or insolvency of such trade creditors or customers, (viii)
investments existing on the date of this Indenture, (ix) loans and advances to
officers, directors, members and employees for business-related travel expenses,
moving expenses and other similar expenses, in each case, incurred in the
ordinary course of business and consistent with past practices and (x)
Investments consisting of intercompany loans or capital contributions from the
Company and its Wholly-Owned Restricted Subsidiaries to Wholly-Owned Restricted
Subsidiaries so long as the intercompany loans are subordinated to the First
Mortgage Notes.
"Permitted Liens" means (i) Liens of the Company and any Restricted
Subsidiary securing Indebtedness and other Obligations under Credit Facilities
that were securing Senior Debt that was permitted by the terms of this Indenture
to be incurred, (ii) Liens in favor of the Company or the Restricted
Subsidiaries, (iii) Liens on property of a Person existing at the time such
Person is merged with or into or consolidated with or acquired by the Company or
any Subsidiary of the Company; provided that such Liens were in existence prior
to the contemplation of such merger or consolidation or acquisition and do not
extend to any assets other than those of the Person merged into or consolidated
with or acquired by the Company or the Subsidiary, (iv) Liens on property
existing at the time of acquisition thereof by the Company or any Subsidiary of
the Company, provided that such Liens were in existence prior to the
contemplation of such acquisition, (v) Liens to secure the performance of
statutory obligations, surety or appeal bonds, bid bonds, payment bonds,
performance bonds or other obligations of a like nature incurred in the ordinary
course of business, (vi) Liens existing on the date of this Indenture, (vii)
Liens to secure Senior Debt that was permitted by this Indenture to be incurred
provided such Liens are permitted by the Security Agreements, (viii) Liens for
taxes, assessments or governmental charges or claims that are not yet delinquent
or that are being contested in good faith by appropriate proceedings promptly
instituted and diligently concluded, provided that any reserve or other
appropriate provision as shall be required in conformity with GAAP shall have
been made therefor, (ix) Liens incurred in the ordinary course of business of
the Company or any Subsidiary of the Company with respect to obligations that do
not exceed $10.0 million at any one time outstanding, (x) Liens on assets of
Unrestricted Subsidiaries that (a) secure Non-Recourse Debt of Unrestricted
Subsidiaries or (b) are incurred in connection with a Receivables Transaction,
(xi) Liens on any property or asset acquired by the Company or any of its
Restricted Subsidiaries in favor of the seller of such property or asset and
construction mortgages on property, in each case, created within six months
after the date of acquisition, construction or improvement of such property or
asset by the Company or such Restricted Subsidiary to secure the purchase price
or other obligation of the Company or such Restricted Subsidiary to the seller
of such property or asset or the construction or improvement cost of such
property in an amount up to the total cost of the acquisition, construction or
improvement of such property or asset; provided that in each case, such Lien
does not extend to any other property or asset of the Company and its Restricted
Subsidiaries, (xii) Liens incurred or pledges and deposits made in connection
with worker's compensation, unemployment insurance and other social security
benefits, (xiii) Liens imposed by law, such as mechanics', carriers',
warehouseman's, materialmen's, and vendors' Liens, incurred in good faith in the
ordinary course of business with respect to amounts not yet delinquent or being
contested in good faith by appropriate proceedings if a reserve or other
appropriate provisions, if any, as shall be required by GAAP shall have been
made therefor, (xiv) zoning restrictions, easements, licenses, covenants,
reservations, restrictions on the use of real property or minor irregularities
of title incident thereto that do not, in the aggregate, materially detract from
the value of the property or the assets of the Company or impair the use of such
property in the operation of the business of the Company or any of its
Restricted Subsidiaries, (xv) Liens of landlords or mortgages of landlords,
12
arising solely by operation of law, on fixtures and movable property located on
premises leased by the Company or any of its Restricted Subsidiaries in the
ordinary course of business, (xvi) financing statements granted with respect to
personal property leased by the Company and its Restricted Subsidiaries pursuant
to leases considered operating leases in accordance with GAAP, provided that
such financing statements are granted solely in connection with such leases;
(xvii) judgment Liens to the extent that such judgments do not cause or
constitute a Default or an Event of Default; (xviii) Liens securing Permitted
Refinancing Indebtedness incurred to refinance Indebtedness that has been
secured by a Lien permitted under this Indenture; provided that any such Lien
shall not extend to or cover any assets or property not securing the
Indebtedness so refinanced, (xix) Liens in favor of the First Mortgage Notes
created pursuant to the terms of the Pledge Agreements, (xx) Liens to secure
Capital Lease Obligations, mortgage financings or purchase money obligations, in
each case incurred for the purpose of financing all or any part of the purchase
price or cost of construction or improvement of property, plant or equipment
used in the business of the Company or any Restricted Subsidiary to the extent
such Indebtedness is permitted to be incurred by Section 4.09 hereof covering
only such assets and (xxi) any extension or renewal, or successive extensions or
renewals, in whole or in part, of Liens permitted pursuant to the foregoing
clauses (i) through (xx), provided that no such extension or renewal Lien shall
(a) secure more than the amount of Indebtedness or other obligations secured by
the Lien being so extended or renewed or (b) extend to any property or assets
not subject to the Lien being so extended or renewed.
"Permitted Refinancing Indebtedness" means any Indebtedness of the Company
or any of its Restricted Subsidiaries issued in exchange for, or the net
proceeds of which are used to extend, refinance, renew, replace, defease or
refund other Indebtedness of the Company or any of its Restricted Subsidiaries
(other than intercompany Indebtedness); provided that (i) except for
Indebtedness used to extend, refinance, renew, replace, defease or refund the
Credit Facilities, the principal amount (or accreted value, if applicable) of
such Permitted Refinancing Indebtedness does not exceed the principal amount (or
accreted value, if applicable), of the Indebtedness so extended, refinanced,
renewed, replaced, defeased or refunded (plus all accrued interest thereon and
the amount of all customary expenses and premiums incurred in connection
therewith), (ii) such Permitted Refinancing Indebtedness has a final maturity
date later than the final maturity date of, and has a Weighted Average Life to
Maturity equal to or greater than the Weighted Average Life to Maturity of, the
Indebtedness being extended, refinanced, renewed, replaced, defeased or
refunded, (iii) if the Indebtedness being extended, refinanced, renewed,
replaced, defeased or refunded is subordinated in right of payment to the First
Mortgage Notes, such Permitted Refinancing Indebtedness has a final maturity
date later than the final maturity date of, and is subordinated in right of
payment to, the First Mortgage Notes on terms at least as favorable to the
Holders of First Mortgage Notes as those contained in the documentation
governing the Indebtedness being extended, refinanced, renewed, replaced,
defeased or refunded and (iv) such Indebtedness is incurred either by the
Company or by the Restricted Subsidiary who is the obligor on the Indebtedness
being extended, refinanced, renewed, replaced, defeased or refunded.
"Person" means any individual, corporation, partnership, joint venture,
association, joint-stock company, trust, unincorporated organization or
government or agency or political subdivision thereof (including any subdivision
or ongoing business of any such entity or substantially all of the assets of any
such entity, subdivision or business).
"PPE" means the property, plant and equipment and certain related assets
owned by the Company and its subsidiaries, constituting 17 of the principal
granulation, seed production, processing and nitrogen plants of the Company and
its subsidiaries as set forth in the Security Agreements.
13
"Principals" means (i) 399 Ventures, Xxxxxxx and the Management Investors
and (ii) any Related Party of a Person referred to in clause (i).
"Private Placement Legend" means the legend set forth in Section 2.06(g)(i)
to be placed on all First Mortgage Notes issued under this Indenture except
where otherwise permitted by the provisions of this Indenture.
"Public Equity Offering" means an underwritten public offering of common
stock (other than Disqualified Stock) of the Company, pursuant to an effective
registration statement filed with the Security and Exchange Commission in
accordance with the Securities Act of 1933, as amended.
"QIB" means a "qualified institutional buyer" as defined in Rule 144A.
"Receivables" means, with respect to any Person or entity, all of the
following property and interests in property of such Person or entity, whether
now existing or existing in the future or hereafter acquired or arising: (i)
accounts, (ii) accounts receivable incurred in the ordinary course of business,
including without limitation, all rights to payment created by or arising from
sales of goods, leases of goods or the rendition of services no matter how
evidenced, whether or not earned by performance, (iii) all rights to any goods
or merchandise represented by any of the foregoing after creation of the
foregoing, including, without limitation, returned or repossessed goods, (iv)
all reserves and credit balances with respect to any such accounts receivable or
account debtors, (v) all letters of credit, security, or guarantees for any of
the foregoing, (vi) all insurance policies or reports relating to any of the
foregoing, (viii) all proceeds of the foregoing and (ix) all books and records
relating to any of the foregoing.
"Receivables Subsidiary" means an Unrestricted Subsidiary exclusively
engaged in Receivables Transactions and activities related thereto; provided,
however, that (i) at no time shall the Company and its Subsidiaries have more
than one Receivables Subsidiary and (ii) all Indebtedness or other borrowings of
such Unrestricted Subsidiary shall be Non-Recourse Debt.
"Receivables Transaction" means (i) the sale or other disposition to a
third party of Receivables or an interest therein, or (ii) the sale or other
disposition of Receivables or an interest therein to a Receivables Subsidiary
followed by a financing transaction in connection with such sale or disposition
of such Receivables (whether such financing transaction is effected by such
Receivables Subsidiary or by a third party to whom such Receivables Subsidiary
sells such Receivables or interest therein); provided that in each of the
foregoing, the Company or its Subsidiaries receive cash of at least 60% of the
aggregate principal amount of any Receivables financed in such transaction.
"Reference Treasury Dealer" means, for the First Mortgage Notes, each of
(i) Xxxxxxxxx, Xxxxxx & Xxxxxxxx Securities Corporation, or its successors;
provided, however, that if the foregoing shall not be a primary U.S. Government
securities dealer in New York City (a "Primary Treasury Dealer"), the Company
shall substitute therefor another Primary Treasury Dealer and (ii) a Primary
Treasury Dealer selected by the Company.
"Reference Treasury Dealer Quotations" means, with respect to each
Reference Treasury Dealer and any date of redemption, the average, as determined
by the Trustee, of the bid and asked prices for the Comparable Treasury Issue
(expressed in each case as a percentage of its principal amount) quoted in
writing to the Trustee by such Reference Treasury Dealer at 5:00 p.m. on the
third business day preceding such date of redemption.
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"Registration Rights Agreement" means the Registration Rights Agreement,
dated as of April 22, 1999, by and among the Company and the other parties named
on the signature pages thereof, as such agreement may be amended, modified or
supplemented from time to time and, with respect to any Additional First
Mortgage Notes, one or more registration rights agreements between the Company
and the other parties thereto, as such agreement(s) may be amended, modified or
supplemented from time to time, relating to rights given by the Company to the
purchasers of Additional First Mortgage Notes to register such Additional First
Mortgage Notes under the Securities Act.
"Regulation S" means Regulation S promulgated under the Securities Act.
"Regulation S Global Note" means a Regulation S Temporary Global Note or
Regulation S Permanent Global Note, as appropriate.
"Regulation S Permanent Global Note" means a permanent global First
Mortgage Note in the form of Exhibit A-1 hereto bearing the Global Note Legend
and the Private Placement Legend and deposited with or on behalf of and
registered in the name of the Depositary or its nominee, issued in a
denomination equal to the outstanding principal amount of the Regulation S
Temporary Global Note upon expiration of the Restricted Period.
"Regulation S Temporary Global Note" means a temporary global First
Mortgage Note in the form of Exhibit A-2 hereto bearing the Private Placement
Legend and deposited with or on behalf of and registered in the name of the
Depositary or its nominee, issued in a denomination equal to the outstanding
principal amount of the First Mortgage Notes initially sold in reliance on Rule
903 of Regulation S.
"Related Party" (i) with respect to each of CVC and 399 Ventures (a) any of
its direct or indirect wholly owned subsidiaries and any officer, director or
employee of CVC, 399 Ventures or any of their wholly owned subsidiaries, (b) any
spouse, parent or lineal descendant of a parent (including by adoption and
stepchildren) of the officers, directors and employees referred to in clause
(i)(a) above, (c) any trust, corporation or partnership 80% of the
beneficiaries, stockholders or partners of which consists of one or more of the
persons described in clause (i)(a) or (b) above or any combination thereof and
(d) any charitable trust the grantor of which consists of one or more of the
persons described in clause (i)(a), (b) or (c) above or any combination thereof,
and (ii) with respect to each of Xxxxxxx and the Management Investors, (a) any
spouse or lineal descendant (including by adoption and stepchildren) of such
person, (b) any trust, corporation or partnership 80% of the beneficiaries,
stockholders or partners of which consists of Xxxxxxx, or the Management
Investors or any of the persons described in clause (ii)(a) above or any
combination thereof and (c) any charitable trust the grantor of which consists
of Xxxxxxx, or the Management Investors or one or more of the persons described
in clause (ii)(a) or (b) above or any combination thereof.
"Responsible Officer," when used with respect to the Trustee, means any
officer within the Corporate Trust Administration of the Trustee (or any
successor group of the Trustee) or any other officer of the Trustee customarily
performing functions similar to those performed by any of the above designated
officers and also means, with respect to a particular corporate trust matter,
any other officer to whom such matter is referred because of his knowledge of
and familiarity with the particular subject.
"Restricted Certificated Note" means a Certificated Note bearing the
Private Placement Legend.
"Restricted Global Note" means a Global Note bearing the Private Placement
Legend.
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"Restricted Investment" means an Investment other than a Permitted
Investment.
"Restricted Period" means the 40-day restricted period as defined in
Regulation S.
"Restricted Subsidiary" means any Subsidiary of the referent Person that is
not an Unrestricted Subsidiary.
"Xxxxxxx-Xxxxx Group" means Xxxxxxx-Xxxxx Group, Inc.
"Rule 144" means Rule 144 promulgated under the Securities Act.
"Rule 144A" means Rule 144A promulgated under the Securities Act.
"Rule 144A Global Note" means a global note substantially in the form of
Exhibit A-1 hereto bearing the Global Note Legend and the Private Placement
Legend and deposited with or on behalf of, and registered in the name of, the
Depositary or its nominee that will be issued in a denomination equal to the
outstanding principal amount of the First Mortgage Notes sold in reliance on
Rule 144A.
"Rule 903" means Rule 903 promulgated under the Securities Act.
"Rule 904" means Rule 904 promulgated the Securities Act.
"SEC" means the Securities and Exchange Commission.
"Securities Act" means the Securities Act of 1933, as amended.
"Security Agreements" means (i) the three security agreements granting a
first priority interest on the equipment and certain other assets of the 17
principal granulation, seed production, processing and nitrogen plants from each
of Xxxxxxx-Xxxxx, Inc., IMC AgriBusiness, Inc. and IMC Nitrogen Company to the
Collateral Agent for the benefit of the holders of the First Mortgage Notes,
(ii) the four collateral assignments of limited liability company interests
granting a pledge of all of the equity interests in the Special Purpose
Restricted Subsidiaries from each of Xxxxxxx-Xxxxx, Inc., IMC AgriBusiness,
Inc., Xxxxxx'x Xx Services and IMC Nitrogen Company to the Trustee, as
Collateral Agent and (iii) the 17 deeds of trusts/mortgages granting a first
priority security interest in the real property and improvements on the the 17
principal granulation, seed production, processing and nitrogen plants from each
of Xxxxxxx-Xxxxx, Inc., IMC AgriBusiness, Inc. and IMC Nitrogen Company to the
Collateral Agent for the benefit of the holders of the First Mortgage Notes.
"Senior Debt" means (i) all Indebtedness of the Company or any Restricted
Subsidiary outstanding under Credit Facilities and all Hedging Obligations with
respect thereto, (ii) any other Indebtedness of the Company or any Restricted
Subsidiary permitted to be incurred under the terms of this Indenture, unless
the instrument under which such Indebtedness is incurred expressly provides that
it is on a parity with or subordinated in right of payment to the First Mortgage
Notes or any Guarantee and (iii) all Obligations with respect to the items
listed in the preceding clauses (i) and (ii). Notwithstanding anything to the
contrary in the preceding, Senior Debt will not include (i) any liability for
federal, state, local or other taxes owed or owing by the Company, (ii) any
Indebtedness of the Company to any of its Restricted Subsidiaries or other
Affiliates, (iii) any trade payables, or (iv) the portion of any Indebtedness
that is incurred in violation of this Indenture.
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"Shelf Registration Statement" means the Shelf Registration Statement as
defined in the Registration Rights Agreement.
"Significant Subsidiary" means any Subsidiary that would be a "significant
subsidiary" as defined in Article 1, Rule 1-02 of Regulation S-X, promulgated
pursuant to the Act, as such Regulation is in effect on the date of this
Indenture.
"Special Adjusted Treasury Rate" means, with respect to any date of
redemption, the rate per annum equal to the semiannual equivalent yield to
maturity of the Comparable Treasury Issue, assuming a price for the Comparable
Treasury Issue (expressed as a percentage of its principal amount) equal to the
Comparable Treasury Price for such date of redemption, plus 0.75%.
"Special Purpose Restricted Subsidiary Permitted Liens" means (i) Liens for
taxes, assessments or governmental charges or claims that are not yet delinquent
or that are being contested in good faith by appropriate proceedings promptly
instituted and diligently concluded, provided that any reserve or other
appropriate provision as shall be required in conformity with GAAP shall have
been made therefor, (ii) Liens imposed by law, such as mechanics', carriers',
warehouseman's, materialmen's, and vendors' Liens, incurred in good faith in the
ordinary course of business with respect to amounts not yet delinquent or being
contested in good faith by appropriate proceedings if a reserve or other
appropriate provisions, if any, as shall be required by GAAP shall have been
made therefor, (iii) zoning restrictions, easements, licenses, covenants,
reservations, restrictions on the use of real property or minor irregularities
of title incident thereto that do not, in the aggregate, materially detract from
the value of the property or the assets of the Special Purpose Restricted
Subsidiaries or impair the use of such property in the operation of the business
of the Special Purpose Restricted Subsidiaries, (iv) Liens to secure the
performance of statutory obligations, surety or appeal bonds, bid bonds, payment
bonds, performance bonds or other obligations of a like nature incurred in the
ordinary course of business, (v) financing statements granted with respect to
personal property leased by the Restricted Subsidiaries pursuant to leases
considered operating leases in accordance with GAAP, provided that such
financing statements are granted solely in connection with such leases, (vi)
judgment Liens to the extent that such judgments do not cause or constitute a
Default or an Event of Default, (vii) Liens in favor of the First Mortgage Notes
created pursuant to the terms of the Pledge Agreements and (viii) Liens to
secure Capital Lease Obligations, mortgage financings or purchase money
obligations, in each case incurred for the purpose of financing all or any part
of the purchase price or cost of construction or improvement of property, plant
or equipment used in the business of such Special Purpose Restricted Subsidiary
to the extent such Indebtedness is permitted to be incurred by Section 4.09
hereof covering only such assets.
"Special Purpose Restricted Subsidiaries" means each of Xxxxxxx-Xxxxx
Realty LLC, Xxxxxxx-Xxxxx AgriBusiness Realty LLC, Xxxxxxx-Xxxxx Nitrogen
Realty, LLC and Xxxxxxx-Xxxxx Xxxxxx'x Realty LLC.
"Stated Maturity" means, with respect to any installment of interest or
principal on any series of Indebtedness, the date on which such payment of
interest or principal was scheduled to be paid in the original documentation
governing such Indebtedness, and shall not include any contingent obligations to
repay, redeem or repurchase any such interest or principal prior to the date
originally scheduled for the payment thereof.
"Subsidiary" means, with respect to any specified Person, (i) any
corporation, association or other business entity of which more than 50% of the
total voting power of shares of Capital Stock entitled (without regard to the
occurrence of any contingency) to vote in the election of directors, managers or
17
trustees thereof is at the time owned or controlled, directly or indirectly, by
such Person or one or more of the other Subsidiaries of that Person (or a
combination thereof) and (ii) any partnership (a) the sole general partner or
the managing general partner of which is such Person or a Subsidiary of such
Person or (b) the only general partners of which are such Person or one or more
Subsidiaries of such Person (or any combination thereof).
"TIA" means the Trust Indenture Act of 1939 (15 U.S.C. ss.ss.77aaa-77bbbb)
as in effect on the date on which this Indenture is qualified under the TIA.
"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.
"Unrestricted Global Note" means a permanent global First Mortgage Note
substantially in the form of Exhibit A-1 attached hereto that bears the Global
Note Legend and that has the "Schedule of Exchanges of Interests in the Global
Note" attached thereto, and that is deposited with or on behalf of and
registered in the name of the Depositary, representing a series of First
Mortgage Notes that do not bear the Private Placement Legend.
"Unrestricted Certificated Note" means one or more Certificated Notes that
do not bear and are not required to bear the Private Placement Legend.
"Unrestricted Subsidiary" means any Subsidiary of the Company (other than
the Special Purpose Restricted Subsidiaries) that is designated by the Board of
Directors as an Unrestricted Subsidiary pursuant to a Board Resolution, but only
to the extent that such Subsidiary (i) has no Indebtedness other than
Non-Recourse Debt, (ii) is not a party to any agreement, contract, arrangement
or understanding with the Company or any Restricted Subsidiary of the Company
unless the terms of any such agreement, contract, arrangement or understanding
are no less favorable to the Company or such Restricted Subsidiary than those
that might be obtained at the time from Persons who are not Affiliates of the
Company, (iii) is a Person with respect to which neither the Company nor any of
its Restricted Subsidiaries has any direct or indirect obligation (a) to
subscribe for additional Equity Interests or (b) to maintain or preserve such
Person's financial condition or to cause such Person to achieve any specified
levels of operating results, (iv) has not guaranteed or otherwise directly or
indirectly provided credit support for any Indebtedness of the Company or any of
its Restricted Subsidiaries and (v) has at least one director on its board of
directors that is not a director or executive officer of the Company or any of
its Restricted Subsidiaries and has at least one executive officer that is not a
director or executive officer of the Company or any of its Restricted
Subsidiaries. Any designation of a Subsidiary of the Company as an Unrestricted
Subsidiary shall be evidenced to the Trustee by filing with the Trustee a
certified copy of the Board Resolution giving effect to such designation and an
Officers' Certificate certifying that such designation complied with the
preceding conditions and was permitted by the covenant described in Section 4.07
hereof. If, at any time, any Unrestricted Subsidiary would fail to meet the
preceding requirements as an Unrestricted Subsidiary, it shall thereafter cease
to be an Unrestricted Subsidiary for purposes of this Indenture and any
Indebtedness of such Subsidiary shall be deemed to be incurred by a Restricted
Subsidiary of the Company as of such date and, if such Indebtedness is not
permitted to be incurred as of such date under the covenant described under
Section 4.09 hereof, the Company shall be in default of such covenant. The Board
of Directors of the Company may at any time designate any Unrestricted
Subsidiary to be a Restricted Subsidiary; provided that such designation shall
be deemed to be an incurrence of Indebtedness by a Restricted Subsidiary of the
Company of any outstanding Indebtedness of such Unrestricted Subsidiary and such
designation shall only be permitted if (i) such Indebtedness is permitted under
the covenant described under Section 4.09 hereof, calculated on a pro forma
18
basis as if such designation had occurred at the beginning of the four-quarter
reference period, and (ii) no Default or Event of Default would be in existence
following such designation. Xxxxxx Xxxxx Ag. Services, Inc. shall be an
Unrestricted Subsidiary as of the date hereof.
"U.S. Person" means a U.S. person as defined in Rule 902(o) under the
Securities Act.
"Voting Stock" of any Person as of any date means the Capital Stock of such
Person that is at the time entitled to vote in the election of the Board of
Directors of such Person.
"Weighted Average Life to Maturity" means, when applied to any Indebtedness
at any date, the number of years obtained by dividing (i) the sum of the
products obtained by multiplying (a) the amount of each then remaining
installment, sinking fund, serial maturity or other required payments of
principal, including payment at final maturity, in respect thereof, by (b) the
number of years (calculated to the nearest one-twelfth) that will elapse between
such date and the making of such payment, by (ii) the then outstanding principal
amount of such Indebtedness.
"Wholly Owned Subsidiary" of any specified Person means a Subsidiary of
such Person all of the outstanding Capital Stock or other ownership interests of
which (other than directors' qualifying shares) shall at the time be owned by
such Person or by one or more Wholly Owned Subsidiaries of such Person but shall
not in any event include Xxxxxxx-Xxxxx Group.
Section 1.02Other Definitions.
Defined in
Term Section
---- -------
"Affiliate Transaction".................................. 4.11
"Asset Sale Offer"....................................... 3.09
"Authentication Order"................................... 2.02
"Change of Control Offer"................................ 4.15
"Change of Control Payment".............................. 4.15
"Change of Control Payment Date"......................... 4.15
"Covenant Defeasance".................................... 8.03
"Event of Default"....................................... 6.01
"Excess Proceeds"........................................ 4.10
"incur".................................................. 4.09
"Legal Defeasance"....................................... 8.02
"Offer Amount"........................................... 3.09
"Offer Period"........................................... 3.09
"Paying Agent"........................................... 2.03
"Permitted Debt"......................................... 4.09
"Purchase Date".......................................... 3.09
"Registrar".............................................. 2.03
"Restricted Payments".................................... 4.07
Section 1.03 Incorporation by Reference of Trust Indenture Act.
Whenever this Indenture refers to a provision of the TIA, the provision is
incorporated by reference in and made a part of this Indenture.
The following TIA terms used in this Indenture have the following meanings:
"indenture securities" means the First Mortgage Notes and the Guarantees;
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"indenture security Holder" means a Holder of a First Mortgage Note;
"indenture to be qualified" means this Indenture;
"indenture trustee" or "institutional trustee" means the Trustee; and
"obligor" on the First Mortgage Notes and the Guarantees means the Company
and the Guarantors, respectively, and any successor obligor upon the First
Mortgage Notes and the Guarantees, respectively.
All other terms used in this Indenture that are defined by the TIA, defined
by TIA reference to another statute or defined by SEC rule under the TIA have
the meanings so assigned to them.
Section 1.04 Rules of Construction.
Unless the context otherwise requires:
(a) a term has the meaning assigned to it;
(b) an accounting term not otherwise defined has the meaning assigned to it
in accordance with GAAP;
(c) "or" is not exclusive;
(d) words in the singular include the plural, and in the plural include the
singular;
(e) provisions apply to successive events and transactions; and
(f) references to sections of or rules under the Securities Act shall be
deemed to include substitute, replacement of successor sections or rules adopted
by the SEC from time to time.
ARTICLE 2.
THE FIRST MORTGAGE NOTES
Section 2.01 Form and Dating.
(a) General. The First Mortgage Notes and the Trustee's certificate of
authentication shall be substantially in the form of Exhibit A hereto. The
Guarantee shall be substantially in the form of Exhibit D, the terms of which
are incorporated in and made part of this Indenture. The First Mortgage Notes
may have notations, legends or endorsements required by law, stock exchange rule
or usage. Each First Mortgage Note shall be dated the date of its
authentication. The First Mortgage Notes shall be in denominations of $1,000 and
integral multiples thereof.
The terms and provisions contained in the First Mortgage 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.
However, to the extent any provision of any First Mortgage Note conflicts with
the express provisions of this Indenture, the provisions of this Indenture shall
govern and be controlling.
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(b) Global Notes. First Mortgage Notes issued in global form shall be
substantially in the form of Exhibits A-1 or A-2 attached hereto (including the
Global Note Legend thereon and the "Schedule of Exchanges of Interests in the
Global Note" attached thereto). In the limited circumstances when Global Notes
may be exchanged for Certificated Notes, the Certificated Notes shall be
substantially in the form of Exhibit A-1 attached hereto (but without the Global
Note Legend thereon and without the "Schedule of Exchanges of Interests in the
Global Note" attached thereto). Each Global Note shall represent such of the
outstanding First Mortgage Notes as shall be specified therein and each shall
provide that it shall represent the aggregate principal amount of outstanding
First Mortgage Notes from time to time endorsed thereon and that the aggregate
principal amount of outstanding First Mortgage Notes represented thereby may
from time to time be reduced or increased, as appropriate, to reflect exchanges
and redemptions. Any endorsement of a Global Note to reflect the amount of any
increase or decrease in the aggregate principal amount of outstanding First
Mortgage Notes represented thereby shall be made by the Trustee or the
Custodian, at the direction of the Trustee, in accordance with instructions
given by the Holder thereof as required by Section 2.06 hereof.
(c) Temporary Global Notes. First Mortgage Notes offered and sold in
reliance on Regulation S shall be issued initially in the form of the Regulation
S Temporary Global Note, which shall be deposited on behalf of the purchasers of
the First Mortgage Notes represented thereby with the Trustee, at its New York
office, as custodian for the Depositary, and registered in the name of the
Depositary or the nominee of the Depositary 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. The Restricted Period
shall be terminated upon the receipt by the Trustee of (i) a written certificate
from the Depositary, together with copies of certificates from Euroclear and
Cedel certifying that they have received certification of non-United States
beneficial ownership of 100% of the aggregate principal amount of the Regulation
S Temporary Global Note (except to the extent of any beneficial owners thereof
who acquired an interest therein during the Restricted Period pursuant to
another exemption from registration under the Securities Act and who will take
delivery of a beneficial ownership interest in a Rule 144A Global Note bearing a
Private Placement Legend, all as contemplated by Section 2.06(a)(ii) hereof),
and (ii) an Officers' Certificate from the Company. Following the termination of
the Restricted Period, beneficial interests in the Regulation S Temporary Global
Note shall be exchanged for beneficial interests in Regulation S Permanent
Global Notes pursuant to the Applicable Procedures. Simultaneously with the
authentication of Regulation S Permanent Global Notes, the Trustee shall cancel
the Regulation S Temporary Global Note. The aggregate principal amount of the
Regulation S Temporary Global Note and the Regulation S Permanent Global Notes
may from time to time be increased or decreased by adjustments made on the
records of the Trustee and the Depositary or its nominee, as the case may be, in
connection with transfers of interest as hereinafter provided.
(d) Euroclear and Cedel Procedures Applicable. The provisions of the
"Operating Procedures of the Euroclear System" and "Terms and Conditions
Governing Use of Euroclear" and the "General Terms and Conditions of Cedel Bank"
and "Customer Handbook" of Cedel shall be applicable to transfers of beneficial
interests in the Regulation S Temporary Global Note and the Regulation S
Permanent Global Notes that are held by Participants through Euroclear or Cedel.
Section 2.02 Execution and Authentication.
Two Officers shall sign the First Mortgage Notes for the Company by manual
or facsimile signature.
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If an Officer whose signature is on a First Mortgage Note no longer holds
that office at the time a First Mortgage Note is authenticated, the First
Mortgage Note shall nevertheless be valid.
A First Mortgage Note shall not be valid until authenticated by the manual
signature of the Trustee. The signature shall be conclusive evidence that the
First Mortgage Note has been authenticated under this Indenture.
The Trustee shall, upon a written order of the Company signed by two
Officers (an "Authentication Order"), authenticate First Mortgage Notes for
original issue up to the aggregate principal amount stated in paragraph 4 of the
First Mortgage Notes. The aggregate principal amount of First Mortgage Notes
outstanding at any time may not exceed such amount except as provided in Section
2.07 hereof.
The Trustee may appoint an authenticating agent acceptable to the Company
to authenticate First Mortgage Notes. An authenticating agent may authenticate
First Mortgage Notes whenever the Trustee may do so. Each reference in this
Indenture to authentication by the Trustee includes authentication by such
agent. An authenticating agent has the same rights as an Agent to deal with
Holders or an Affiliate of the Company.
Section 2.03 Registrar and Paying Agent.
The Company shall maintain an office or agency where First Mortgage Notes
may be presented for registration of transfer or for exchange ("Registrar") and
an office or agency where First Mortgage Notes may be presented for payment
("Paying Agent"). The Registrar shall keep a register of the First Mortgage
Notes and of their transfer and exchange. The Company may appoint one or more
co-registrars and one or more additional paying agents. 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 Depositary with respect to the Global Notes.
The Company initially appoints the Trustee to act as the Registrar and
Paying Agent and to act as Custodian with respect to the Global Notes.
Section 2.04 Paying Agent to Hold Money in Trust.
The Company shall require each Paying Agent other than the Trustee to agree
in writing that the Paying Agent will hold in trust for the benefit of Holders
or the Trustee all money held by the Paying Agent for the payment of principal,
premium or Liquidated Damages, if any, or interest on the First Mortgage Notes,
and will notify the Trustee of any default by the Company or any Guarantor 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 or a Guarantor, the Trustee shall serve as Paying Agent for the First
Mortgage Notes.
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Section 2.05 Holder Lists.
The Trustee shall preserve in as current a form as is reasonably
practicable the most recent list available to it of the names and addresses of
all Holders and shall otherwise comply with TIA ss.312(a). If the Trustee is not
the Registrar, the Company and/or the Guarantors 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 First Mortgage Notes and the Company and the Guarantors shall
otherwise comply with TIA ss.312(a).
Section 2.06 Transfer and Exchange.
(a) Transfer and Exchange of Global Notes. A Global Note may not be
transferred as a whole except by the Depositary to a nominee of the Depositary,
by a nominee of the Depositary to the Depositary or to another nominee of the
Depositary, or by the Depositary or any such nominee to a successor Depositary
or a nominee of such successor Depositary. A Global Note will be exchanged by
the Company for Certificated Notes only if (i) the Company delivers to the
Trustee notice from the Depositary that it is unwilling or unable to continue to
act as Depositary for the Global Notes or that it is no longer a clearing agency
registered under the Exchange Act and, in either case, a successor Depositary is
not appointed by the Company within 120 days after the date of such notice from
the Depositary, (ii) the Company in its sole discretion determines that the
Global Notes (in whole but not in part) should be exchanged for Certificated
Notes and delivers a written notice to such effect to the Trustee; provided that
in no event shall the Regulation S Temporary Global Note be exchanged by the
Company for Certificated Notes prior to (x) the expiration of the Restricted
Period and (y) the receipt by the Registrar of any certificates required
pursuant to Rule 903(c)(3)(ii)(B) under the Securities Act or (iii) there shall
have occurred and be continuing a Default or Event of Default with respect to
the First Mortgage Notes. Upon the occurrence of any of the preceding events in
(i), (ii) or (iii) above, Certificated Notes shall be issued in such names as
the Depositary shall instruct the Trustee. Global Notes also may be exchanged or
replaced, in whole or in part, as provided in Sections 2.07 and 2.10 hereof.
Every First Mortgage Note authenticated and delivered in exchange for, or in
lieu of, a Global Note or any portion thereof, pursuant to this Section 2.06 or
Section 2.07 or 2.10 hereof, shall be authenticated and delivered in the form
of, and shall be, a Global Note. A Global Note may not be exchanged for another
First Mortgage Note other than as provided in this Section 2.06(a), however,
beneficial interests in a Global Note may be transferred and exchanged as
provided in Section 2.06(b), (c) or (f) hereof.
(b) Transfer and Exchange of Beneficial Interests in the Global Notes. The
transfer and exchange of beneficial interests in the Global Notes shall be
effected through the Depositary, in accordance with the provisions of this
Indenture and the Applicable Procedures. Beneficial interests in the Restricted
Global Notes shall be subject to restrictions on transfer comparable to those
set forth herein to the extent required by the Securities Act. Transfers of
beneficial interests in the Global Notes also shall require compliance with
either subparagraph (i) or (ii) below, as applicable, as well as one or more of
the other following subparagraphs, as applicable:
(i) Transfer of Beneficial Interests in the Same Global Note.
Beneficial interests in any Restricted Global Note may be transferred to
Persons who take delivery thereof in the form of a beneficial interest in
the same Restricted Global Note in accordance with the transfer
restrictions set forth in the Private Placement Legend; provided, however,
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that prior to the expiration of the Restricted Period, transfers of
beneficial interests in the Temporary Regulation S Global Note may not be
made to a U.S. Person or for the account or benefit of a U.S. Person (other
than an Initial Purchaser). Beneficial interests in any Unrestricted Global
Note may be transferred to Persons who take delivery thereof in the form of
a beneficial interest in an Unrestricted Global Note. No written orders or
instructions shall be required to be delivered to the Registrar to effect
the transfers described in this Section 2.06(b)(i).
(ii) All Other Transfers and Exchanges of Beneficial Interests in
Global Notes. In connection with all transfers and exchanges of beneficial
interests that are not subject to Section 2.06(b)(i) above, the transferor
of such beneficial interest must deliver to the Registrar either (A) (1) a
written order from a Participant or an Indirect Participant given to the
Depositary in accordance with the Applicable Procedures directing the
Depositary to credit or cause to be credited a beneficial interest in
another Global Note in an amount equal to the beneficial interest to be
transferred or exchanged and (2) instructions given in accordance with the
Applicable Procedures containing information regarding the Participant
account to be credited with such increase or (B) (1) a written order from a
Participant or an Indirect Participant given to the Depositary in
accordance with the Applicable Procedures directing the Depositary to cause
to be issued a Certificated Note in an amount equal to the beneficial
interest to be transferred or exchanged and (2) instructions given by the
Depositary to the Registrar containing information regarding the Person in
whose name such Certificated Note shall be registered to effect the
transfer or exchange referred to in (1) above; provided that in no event
shall Certificated Notes be issued upon the transfer or exchange of
beneficial interests in the Regulation S Temporary Global Note prior to (x)
the expiration of the Restricted Period and (y) the receipt by the
Registrar of any certificates required pursuant to Rule 903 under the
Securities Act. Upon consummation of an Exchange Offer by the Company in
accordance with Section 2.06(f) hereof, the requirements of this Section
2.06(b)(ii) shall be deemed to have been satisfied upon receipt by the
Registrar of the instructions contained in the Letter of Transmittal
delivered by the Holder of such beneficial interests in the Restricted
Global Notes. Upon satisfaction of all of the requirements for transfer or
exchange of beneficial interests in Global Notes contained in this
Indenture and the First Mortgage Notes or otherwise applicable under the
Securities Act, the Trustee shall adjust the principal amount of the
relevant Global Note(s) pursuant to Section 2.06(h) hereof.
(iii) Transfer of Beneficial Interests to Another Restricted Global
Note. A beneficial interest in any Restricted Global Note may be
transferred to a Person who takes delivery thereof in the form of a
beneficial interest in another Restricted Global Note if the transfer
complies with the requirements of Section 2.06(b)(ii) above and the
Registrar receives the following:
(A) if the transferee will take delivery in the form of a
beneficial interest in the Rule 144A Global Note, then the transferor
must deliver a certificate in the form of Exhibit B hereto, including
the certifications in item (1) thereof; and
(B) if the transferee will take delivery in the form of a
beneficial interest in the Regulation S Temporary Global Note or the
Regulation S Global Note, then the transferor must deliver a
certificate in the form of Exhibit B hereto, including the
certifications in item (2) thereof.
(iv) Transfer and Exchange of Beneficial Interests in a Restricted
Global Note for Beneficial Interests in the Unrestricted Global Note. A
24
beneficial interest in any Restricted Global Note may be exchanged by any
holder thereof for a beneficial interest in an Unrestricted Global Note or
transferred to a Person who takes delivery thereof in the form of a
beneficial interest in an Unrestricted Global Note if the exchange or
transfer complies with the requirements of Section 2.06(b)(ii) above and:
(A) such exchange or transfer is effected pursuant to the
Exchange Offer in accordance with the Registration Rights Agreement
and the holder of the beneficial interest to be transferred, in the
case of an exchange, or the transferee, in the case of a transfer,
certifies in the applicable Letter of Transmittal that it is not (1) a
broker-dealer, (2) a Person participating in the distribution of the
Series B First Mortgage Notes or (3) a Person who is an affiliate (as
defined in Rule 144) of the Company;
(B) such transfer is effected pursuant to the Shelf Registration
Statement in accordance with the Registration Rights Agreement;
(C) such transfer is effected by a Broker-Dealer pursuant to the
Exchange Offer Registration Statement in accordance with the
Registration Rights Agreement; or
(D) the Registrar receives the following:
(1) if the holder of such beneficial interest in a
Restricted Global Note proposes to exchange such beneficial
interest for a beneficial interest in an Unrestricted Global
Note, a certificate from such holder in the form of Exhibit C
hereto, including the certifications in item (1)(a) thereof; or
(2) if the holder of such beneficial interest in a
Restricted Global Note proposes to transfer such beneficial
interest to a Person who shall take delivery thereof in the form
of a beneficial interest in an Unrestricted Global Note, a
certificate from such holder in the form of Exhibit B hereto,
including the certifications in item (4) thereof;
and, in each such case set forth in this subparagraph (D), if the
Registrar so requests or if the Applicable Procedures so require, an
Opinion of Counsel in form reasonably acceptable to the Registrar to
the effect that such exchange or transfer is in compliance with the
Securities Act and that the restrictions on transfer contained herein
and in the Private Placement Legend are no longer required in order to
maintain compliance with the Securities Act.
If any such transfer is effected pursuant to subparagraph (B) or (D) above
at a time when an Unrestricted Global Note has not yet been issued, the Company
shall issue and, upon receipt of an Authentication Order in accordance with
Section 2.02 hereof, the Trustee shall authenticate one or more Unrestricted
Global Notes in an aggregate principal amount equal to the aggregate principal
amount of beneficial interests transferred pursuant to subparagraph (B) or (D)
above.
Beneficial interests in an Unrestricted Global Note cannot be exchanged
for, or transferred to Persons who take delivery thereof in the form of, a
beneficial interest in a Restricted Global Note.
25
(c) Transfer or Exchange of Beneficial Interests for Certificated Notes.
(i) Beneficial Interests in Restricted Global Notes to Restricted
Certificated Notes. If any holder of a beneficial interest in a Restricted
Global Note proposes to exchange such beneficial interest for a Restricted
Certificated Note or to transfer such beneficial interest to a Person who
takes delivery thereof in the form of a Restricted Certificated Note, then,
upon receipt by the Registrar of the following documentation:
(A) if the holder of such beneficial interest in a Restricted
Global Note proposes to exchange such beneficial interest for a
Restricted Certificated Note, a certificate from such holder in the
form of Exhibit C hereto, including the certifications in item (2)(a)
thereof;
(B) if such beneficial interest is being transferred to a QIB in
accordance with Rule 144A under the Securities Act, a certificate to
the effect set forth in Exhibit B hereto, including the certifications
in item (1) thereof;
(C) if such beneficial interest is being transferred to a
Non-U.S. Person in an offshore transaction in accordance with Rule 903
or Rule 904 under the Securities Act, a certificate to the effect set
forth in Exhibit B hereto, including the certifications in item (2)
thereof;
(D) if such beneficial interest is being transferred pursuant to
an exemption from the registration requirements of the Securities Act
in accordance with Rule 144 under the Securities Act, a certificate to
the effect set forth in Exhibit B hereto, including the certifications
in item (3)(a) thereof;
(E) if such beneficial interest is being transferred to the
Company or any of its Subsidiaries, a certificate to the effect set
forth in Exhibit B hereto, including the certifications in item (3)(b)
thereof; or
(F) if such beneficial interest is being transferred pursuant to
an effective registration statement under the Securities Act, a
certificate to the effect set forth in Exhibit B hereto, including the
certifications in item (3)(c) thereof,
the Trustee shall cause the aggregate principal amount of the applicable Global
Note to be reduced accordingly pursuant to Section 2.06(h) hereof, and the
Company shall execute and the Trustee shall authenticate and deliver to the
Person designated in the instructions a Certificated Note in the appropriate
principal amount. Any Certificated Note issued in exchange for a beneficial
interest in a Restricted Global Note pursuant to this Section 2.06(c) shall be
registered in such name or names and in such authorized denomination or
denominations as the holder of such beneficial interest shall instruct the
Registrar through instructions from the Depositary and the Participant or
Indirect Participant. The Trustee shall deliver such Certificated Notes to the
Persons in whose names such Notes are so registered. Any Certificated Note
issued in exchange for a beneficial interest in a Restricted Global Note
pursuant to this Section 2.06(c)(i) shall bear the Private Placement Legend and
shall be subject to all restrictions on transfer contained therein.
(ii) Beneficial Interests in Regulation S Temporary Global Note to
Certificated Notes. Notwithstanding Sections 2.06(c)(i)(A) and (C) hereof,
26
a beneficial interest in the Regulation S Temporary Global Note may not be
exchanged for a Certificated Note or transferred to a Person who takes
delivery thereof in the form of a Certificated Note prior to (x) the
expiration of the Restricted Period and (y) the receipt by the Registrar of
any certificates required pursuant to Rule 903(c)(3)(ii)(B) under the
Securities Act, except in the case of a transfer pursuant to an exemption
from the registration requirements of the Securities Act other than Rule
903 or Rule 904.
(iii) Beneficial Interests in Restricted Global Notes to Unrestricted
Certificated Notes. A holder of a beneficial interest in a Restricted
Global Note may exchange such beneficial interest for an Unrestricted
Certificated Note or may transfer such beneficial interest to a Person who
takes delivery thereof in the form of an Unrestricted Certificated Note
only if:
(A) such exchange or transfer is effected pursuant to the
Exchange Offer in accordance with the Registration Rights Agreement
and the holder of such beneficial interest, in the case of an
exchange, or the transferee, in the case of a transfer, certifies in
the applicable Letter of Transmittal that it is not (1) a
broker-dealer, (2) a Person participating in the distribution of the
Series B First Mortgage Notes or (3) a Person who is an affiliate (as
defined in Rule 144) of the Company;
(B) such transfer is effected pursuant to the Shelf Registration
Statement in accordance with the Registration Rights Agreement;
(C) such transfer is effected by a Broker-Dealer pursuant to the
Exchange Offer Registration Statement in accordance with the
Registration Rights Agreement; or
(D) the Registrar receives the following:
(1) if the holder of such beneficial interest in a
Restricted Global Note proposes to exchange such beneficial
interest for a Certificated Note that does not bear the Private
Placement Legend, a certificate from such holder in the form of
Exhibit C hereto, including the certifications in item (1)(b)
thereof; or
(2) if the holder of such beneficial interest in a
Restricted Global Note proposes to transfer such beneficial
interest to a Person who shall take delivery thereof in the form
of a Certificated Note that does not bear the Private Placement
Legend, a certificate from such holder in the form of Exhibit B
hereto, including the certifications in item (4) thereof;
and, in each such case set forth in this subparagraph (D), if the
Registrar so requests or if the Applicable Procedures so require, an
Opinion of Counsel in form reasonably acceptable to the Registrar to
the effect that such exchange or transfer is in compliance with the
Securities Act and that the restrictions on transfer contained herein
and in the Private Placement Legend are no longer required in order to
maintain compliance with the Securities Act.
(iv) Beneficial Interests in Unrestricted Global Notes to Unrestricted
Certificated Notes. If any holder of a beneficial interest in an
Unrestricted Global Note proposes to exchange such beneficial interest for
a Certificated Note or to transfer such beneficial interest to a Person who
takes delivery thereof in the form of a Certificated Note, then, upon
satisfaction of the conditions set forth in Section 2.06(b)(ii) hereof, the
27
Trustee shall cause the aggregate principal amount of the applicable Global
Note to be reduced accordingly pursuant to Section 2.06(h) hereof, and the
Company shall execute and the Trustee shall authenticate and deliver to the
Person designated in the instructions a Certificated Note in the
appropriate principal amount. Any Certificated Note issued in exchange for
a beneficial interest pursuant to this Section 2.06(c)(iii) shall be
registered in such name or names and in such authorized denomination or
denominations as the holder of such beneficial interest shall instruct the
Registrar through instructions from the Depositary and the Participant or
Indirect Participant. The Trustee shall deliver such Certificated Notes to
the Persons in whose names such Notes are so registered. Any Certificated
Note issued in exchange for a beneficial interest pursuant to this Section
2.06(c)(iii) shall not bear the Private Placement Legend.
(d) Transfer and Exchange of Certificated Notes for Beneficial Interests.
(i) Restricted Certificated Notes to Beneficial Interests in
Restricted Global Notes. If any Holder of a Restricted Certificated Note
proposes to exchange such Note for a beneficial interest in a Restricted
Global Note or to transfer such Restricted Certificated Notes to a Person
who takes delivery thereof in the form of a beneficial interest in a
Restricted Global Note, then, upon receipt by the Registrar of the
following documentation:
(A) if the Holder of such Restricted Certificated Note proposes
to exchange such Note for a beneficial interest in a Restricted Global
Note, a certificate from such Holder in the form of Exhibit C hereto,
including the certifications in item (2)(b) thereof;
(B) if such Restricted Certificated Note is being transferred to
a QIB in accordance with Rule 144A under the Securities Act, a
certificate to the effect set forth in Exhibit B hereto, including the
certifications in item (1) thereof;
(C) if such Restricted Certificated Note is being transferred to
a Non-U.S. Person in an offshore transaction in accordance with Rule
903 or Rule 904 under the Securities Act, a certificate to the effect
set forth in Exhibit B hereto, including the certifications in item
(2) thereof;
(D) if such Restricted Certificated Note is being transferred
pursuant to an exemption from the registration requirements of the
Securities Act in accordance with Rule 144 under the Securities Act, a
certificate to the effect set forth in Exhibit B hereto, including the
certifications in item (3)(a) thereof;
(E) if such Restricted Certificated Note is being transferred to
the Company or any of its Subsidiaries, a certificate to the effect
set forth in Exhibit B hereto, including the certifications in item
(3)(b) thereof; or
(F) if such Restricted Certificated Note is being transferred
pursuant to an effective registration statement under the Securities
Act, a certificate to the effect set forth in Exhibit B hereto,
including the certifications in item (3)(c) thereof,
the Trustee shall cancel the Restricted Certificated Note, increase or
cause to be increased the aggregate principal amount of, in the case of
clause (A) above, the appropriate Restricted Global Note, in the case of
clause (B) above, the Rule 144A Global Note, in the case of clause (C)
above, the Regulation S Global Note.
28
(ii) Restricted Certificated Notes to Beneficial Interests in
Unrestricted Global Notes. A Holder of a Restricted Certificated Note may
exchange such Note for a beneficial interest in an Unrestricted Global
Note or transfer such Restricted Certificated Note to a Person who takes
delivery thereof in the form of a beneficial interest in an Unrestricted
Global Note only if:
(A) such exchange or transfer is effected pursuant to the
Exchange Offer in accordance with the Registration Rights Agreement
and the Holder, in the case of an exchange, or the transferee, in the
case of a transfer, certifies in the applicable Letter of Transmittal
that it is not (1) a broker-dealer, (2) a Person participating in the
distribution of the Series B First Mortgage Notes or (3) a Person who
is an affiliate (as defined in Rule 144) of the Company;
(B) such transfer is effected pursuant to the Shelf Registration
Statement in accordance with the Registration Rights Agreement;
(C) such transfer is effected by a Broker-Dealer pursuant to the
Exchange Offer Registration Statement in accordance with the
Registration Rights Agreement; or
(D) the Registrar receives the following:
(1) if the Holder of such Certificated Notes proposes to
exchange such Notes for a beneficial interest in the Unrestricted
Global Note, a certificate from such Holder in the form of
Exhibit C hereto, including the certifications in item (1)(c)
thereof; or
(2) if the Holder of such Certificated Notes proposes to
transfer such Notes to a Person who shall take delivery thereof
in the form of a beneficial interest in the Unrestricted Global
Note, a certificate from such Holder in the form of Exhibit B
hereto, including the certifications in item (4) thereof;
and, in each such case set forth in this subparagraph (D), if the
Registrar so requests or if the Applicable Procedures so require, an
Opinion of Counsel in form reasonably acceptable to the Registrar to
the effect that such exchange or transfer is in compliance with the
Securities Act and that the restrictions on transfer contained herein
and in the Private Placement Legend are no longer required in order to
maintain compliance with the Securities Act.
Upon satisfaction of the conditions of any of the subparagraphs in this
Section 2.06(d)(ii), the Trustee shall cancel the Certificated Notes and
increase or cause to be increased the aggregate principal amount of the
Unrestricted Global Note.
(iii) Unrestricted Certificated Notes to Beneficial Interests in
Unrestricted Global Notes. A Holder of an Unrestricted Certificated Note
may exchange such Note for a beneficial interest in an Unrestricted Global
Note or transfer such Certificated Notes to a Person who takes delivery
thereof in the form of a beneficial interest in an Unrestricted Global Note
at any time. Upon receipt of a request for such an exchange or transfer,
the Trustee shall cancel the applicable Unrestricted Certificated Note and
increase or cause to be increased the aggregate principal amount of one of
the Unrestricted Global Notes.
29
If any such exchange or transfer from a Certificated Note to a
beneficial interest is effected pursuant to subparagraphs (ii)(B), (ii)(D)
or (iii) above at a time when an Unrestricted Global Note has not yet been
issued, the Company shall issue and, upon receipt of an Authentication
Order in accordance with Section 2.02 hereof, the Trustee shall
authenticate one or more Unrestricted Global Notes in an aggregate
principal amount equal to the principal amount of Certificated Notes so
transferred.
(e) Transfer and Exchange of Certificated Notes for Certificated Notes.
Upon request by a Holder of Certificated Notes and such Holder's compliance with
the provisions of this Section 2.06(e), the Registrar shall register the
transfer or exchange of Certificated Notes. Prior to such registration of
transfer or exchange, the requesting Holder shall present or surrender to the
Registrar the Certificated Notes duly endorsed or accompanied by a written
instruction of transfer in form satisfactory to the Registrar duly executed by
such Holder or by its attorney, duly authorized in writing. In addition, the
requesting Holder shall provide any additional certifications, documents and
information, as applicable, required pursuant to the following provisions of
this Section 2.06(e).
(i) Restricted Certificated Notes to Restricted Certificated Notes.
Any Restricted Certificated Note may be transferred to and registered in
the name of Persons who take delivery thereof in the form of a Restricted
Certificated Note if the Registrar receives the following:
(A) if the transfer will be made pursuant to Rule 144A under the
Securities Act, then the transferor must deliver a certificate in the
form of Exhibit B hereto, including the certifications in item (1)
thereof;
(B) if the transfer will be made pursuant to Rule 903 or Rule
904, then the transferor must deliver a certificate in the form of
Exhibit B hereto, including the certifications in item (2) thereof;
and
(C) if the transfer will be made pursuant to any other exemption
from the registration requirements of the Securities Act, then the
transferor must deliver a certificate in the form of Exhibit B hereto,
including the certifications, certificates and Opinion of Counsel
required by item (3) thereof, if applicable.
(ii) Restricted Certificated Notes to Unrestricted Certificated Notes.
Any Restricted Certificated Note may be exchanged by the Holder thereof for
an Unrestricted Certificated Note or transferred to a Person or Persons who
take delivery thereof in the form of an Unrestricted Certificated Note if:
(A) such exchange or transfer is effected pursuant to the
Exchange Offer in accordance with the Registration Rights Agreement
and the Holder, in the case of an exchange, or the transferee, in the
case of a transfer, certifies in the applicable Letter of Transmittal
that it is not (1) a broker-dealer, (2) a Person participating in the
distribution of the Series B First Mortgage Notes or (3) a Person who
is an affiliate (as defined in Rule 144) of the Company;
(B) any such transfer is effected pursuant to the Shelf
Registration Statement in accordance with the Registration Rights
Agreement;
30
(C) any such transfer is effected by a Broker-Dealer pursuant to
the Exchange Offer Registration Statement in accordance with the
Registration Rights Agreement; or
(D) the Registrar receives the following:
(1) if the Holder of such Restricted Certificated Notes
proposes to exchange such Notes for an Unrestricted Certificated
Note, a certificate from such Holder in the form of Exhibit C
hereto, including the certifications in item (1)(d) thereof; or
(2) if the Holder of such Restricted Certificated Notes
proposes to transfer such Notes to a Person who shall take
delivery thereof in the form of an Unrestricted Certificated
Note, a certificate from such Holder in the form of Exhibit B
hereto, including the certifications in item (4) thereof;
and, in each such case set forth in this subparagraph (D), if the Registrar
so requests, an Opinion of Counsel in form reasonably acceptable to the
Company to the effect that such exchange or transfer is in compliance with
the Securities Act and that the restrictions on transfer contained herein
and in the Private Placement Legend are no longer required in order to
maintain compliance with the Securities Act.
(iii) Unrestricted Certificated Notes to Unrestricted Certificated
Notes. A Holder of Unrestricted Certificated Notes may transfer such Notes
to a Person who takes delivery thereof in the form of an Unrestricted
Certificated Note. Upon receipt of a request to register such a transfer,
the Registrar shall register the Unrestricted Certificated Notes pursuant
to the instructions from the Holder thereof.
(f) Exchange Offer. 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 2.02, the Trustee
shall authenticate (i) one or more Unrestricted Global Notes in an aggregate
principal amount equal to the principal amount of the beneficial interests in
the Restricted Global Notes tendered for acceptance by Persons that certify in
the applicable Letters of Transmittal that (x) they are not broker-dealers, (y)
they are not participating in a distribution of the Series B First Mortgage
Notes and (z) they are not affiliates (as defined in Rule 144) of the Company,
and accepted for exchange in the Exchange Offer and (ii) Certificated Notes in
an aggregate principal amount equal to the principal amount of the Restricted
Certificated Notes accepted for exchange in the Exchange Offer. Concurrently
with the issuance of such Notes, the Trustee shall cause the aggregate principal
amount of the applicable Restricted 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 Notes so accepted Certificated
Notes in the appropriate principal amount.
(g) Legends. The following legends shall appear on the face of all Global
Notes and Certificated Notes issued under this Indenture unless specifically
stated otherwise in the applicable provisions of this Indenture.
(i) Private Placement Legend.
31
(A) Except as permitted by subparagraph (B) below, each Global
Note and each Certificated Note (and all Series A First Mortgage Notes
issued in exchange therefor or substitution thereof) shall bear the
legend in substantially the following form:
"This First Mortgage 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 next
sentence. 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 has acquired this First Mortgage Note in an
offshore transaction in compliance with Regulation S under the
Securities Act,
(2) Agrees that it will not resell or otherwise transfer
this First Mortgage 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 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
First Mortgage 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 First Mortgage
Note in violation of the foregoing."
(B) Notwithstanding the foregoing, any Global Note or
Certificated Note issued pursuant to subparagraphs (b)(iv), (c)(iii),
(c)(iv), (d)(ii), (d)(iii), (e)(ii), (e)(iii) or (f) to this Section
2.06 (and all Series B First Mortgage Notes issued in exchange
therefor or substitution thereof) shall not bear the Private Placement
Legend.
(ii) Global Note Legend. Each Global Note shall bear a legend in
substantially the following form:
"THIS GLOBAL NOTE IS HELD BY THE DEPOSITARY (AS DEFINED IN THE INDENTURE
GOVERNING THIS NOTE) OR ITS NOMINEE IN CUSTODY FOR THE BENEFIT OF THE
BENEFICIAL OWNERS HEREOF, AND IS NOT TRANSFERABLE TO ANY PERSON UNDER ANY
CIRCUMSTANCES
32
EXCEPT THAT (I) THE TRUSTEE MAY MAKE SUCH NOTATIONS HEREON AS MAY BE
REQUIRED PURSUANT TO SECTION 2.07 OF THE INDENTURE, (II) THIS GLOBAL NOTE
MAY BE EXCHANGED IN WHOLE BUT NOT IN PART PURSUANT TO SECTION 2.06(a) OF
THE INDENTURE, (III) THIS GLOBAL NOTE MAY BE DELIVERED TO THE TRUSTEE FOR
CANCELLATION PURSUANT TO SECTION 2.11 OF THE INDENTURE AND (IV) THIS GLOBAL
NOTE MAY BE TRANSFERRED TO A SUCCESSOR DEPOSITARY WITH THE PRIOR WRITTEN
CONSENT OF THE COMPANY."
(iii) Regulation S Temporary Global Note Legend. The Regulation S
Temporary Global Note shall bear a legend in substantially the following
form:
"THE RIGHTS ATTACHING TO THIS REGULATION S TEMPORARY GLOBAL NOTE, AND THE
CONDITIONS AND PROCEDURES GOVERNING ITS EXCHANGE FOR CERTIFICATED NOTES,
ARE AS SPECIFIED IN THE INDENTURE (AS DEFINED HEREIN). NEITHER THE HOLDER
NOR THE BENEFICIAL OWNERS OF THIS REGULATION S TEMPORARY GLOBAL NOTE SHALL
BE ENTITLED TO RECEIVE PAYMENT OF INTEREST HEREON."
(h) Cancellation and/or Adjustment of Global Notes. At such time as all
beneficial interests in a particular Global Note have been exchanged for
Certificated Notes or a particular Global Note has been redeemed, repurchased or
canceled in whole and not in part, each such Global Note shall be returned to or
retained and canceled by the Trustee in accordance with Section 2.11 hereof. At
any time prior to such cancellation, if any beneficial interest in a Global Note
is exchanged for or transferred to a Person who will take delivery thereof in
the form of a beneficial interest in another Global Note or for Certificated
Notes, the principal amount of First Mortgage Notes represented by such Global
Note shall be reduced accordingly and an endorsement shall be made on such
Global Note by the Trustee or by the Depositary at the direction of the Trustee
to reflect such reduction; and if the beneficial interest is being exchanged for
or transferred to a Person who will take delivery thereof in the form of a
beneficial interest in another Global Note, such other Global Note shall be
increased accordingly and an endorsement shall be made on such Global Note by
the Trustee or by the Depositary at the direction of the Trustee to reflect such
increase.
(i) 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 Notes upon the Company's order or at the Registrar's request.
(ii) No service charge shall be made to a holder of a beneficial
interest in a Global Note or to a Holder of a Certificated Note for any
registration of transfer or exchange, but the Company may require payment
of a sum sufficient to cover any transfer tax or similar governmental
charge payable in connection therewith (other than any such transfer taxes
or similar governmental charge payable upon exchange or transfer pursuant
to Sections 2.10, 3.06, 3.09, 4.10, 4.15 and 9.05 hereof).
(iii) The Registrar shall not be required to register the transfer
of or exchange any First Mortgage Note selected for redemption in whole or
in part, except the unredeemed portion of any First Mortgage Note being
redeemed in part.
(iv) All Global Notes and Certificated Notes issued upon any
registration of transfer or exchange of Global Notes or Certificated Notes
33
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 Notes surrendered upon such registration of transfer
or exchange.
(v) The Company shall not be required (A) to issue, to register the
transfer of or to exchange any First Mortgage Notes during a period
beginning at the opening of business 15 days before the day of any
selection of First Mortgage Notes for redemption under Section 3.02 hereof
and ending at the close of business on the day of selection, (B) to
register the transfer of or to exchange any First Mortgage Note so
selected for redemption in whole or in part, except the unredeemed portion
of any First Mortgage Note being redeemed in part or (C) to register the
transfer of or to exchange a First Mortgage Note between a record date and
the next succeeding Interest Payment Date.
(vi) Prior to due presentment for the registration of a transfer of
any First Mortgage Note, the Trustee, any Agent and the Company may deem
and treat the Person in whose name any First Mortgage Note is registered
as the absolute owner of such First Mortgage Note for the purpose of
receiving payment of principal of and interest on such First Mortgage
Notes and for all other purposes, and none of the Trustee, any Agent or
the Company shall be affected by notice to the contrary.
(vii) The Trustee shall authenticate Global Notes and Certificated
Notes in accordance with the provisions of Section 2.02 hereof.
(viii) All certifications, certificates and Opinions of Counsel
required to be submitted to the Registrar pursuant to this Section 2.06 to
effect a registration of transfer or exchange may be submitted by
facsimile.
Section 2.07 Replacement First Mortgage Notes.
If any mutilated First Mortgage 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 First Mortgage Note, the Company shall issue
and the Trustee, upon receipt of an Authentication Order, shall authenticate a
replacement First Mortgage 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, the Trustee, any Agent and any authenticating agent from
any loss that any of them may suffer if a First Mortgage Note is replaced. The
Company may charge for its expenses in replacing a First Mortgage Note.
Every replacement First Mortgage 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 First Mortgage Notes duly issued hereunder.
Section 2.08 Outstanding First Mortgage Notes.
The First Mortgage Notes outstanding at any time are all the First Mortgage
Notes authenticated by the Trustee except for those canceled by it, those
delivered to it for cancellation, those reductions in the interest in a Global
Note effected by the Trustee in accordance with the provisions hereof, and those
described in this Section as not outstanding. Except as set forth in Section
2.09 hereof, a First Mortgage Note does not cease to be outstanding because the
Company or an Affiliate of the Company holds the First Mortgage Note; however,
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First Mortgage Notes held by the Company or a Subsidiary of the Company shall
not be deemed to be outstanding for purposes of Section 3.07(b) hereof.
If a First Mortgage Note is replaced pursuant to Section 2.07 hereof, it
ceases to be outstanding unless the Trustee receives proof satisfactory to it
that the replaced First Mortgage Note is held by a bona fide purchaser.
If the principal amount of any First Mortgage Note is considered paid under
Section 4.01 hereof, it ceases to be outstanding and interest on it ceases to
accrue.
If the Paying Agent (other than the Company, a Subsidiary or an Affiliate
of any thereof) holds, on a redemption date or maturity date, money sufficient
to pay First Mortgage Notes payable on that date, then on and after that date
such First Mortgage Notes shall be deemed to be no longer outstanding and shall
cease to accrue interest.
Section 2.09 Treasury First Mortgage Notes.
In determining whether the Holders of the required principal amount of
First Mortgage Notes have concurred in any direction, waiver or consent, First
Mortgage Notes owned by the Company, any Guarantor or by any Person directly or
indirectly controlling or controlled by or under direct or indirect common
control with the Company, shall be considered as though not outstanding, except
that for the purposes of determining whether the Trustee shall be protected in
relying on any such direction, waiver or consent, only First Mortgage Notes that
the Trustee knows are so owned shall be so disregarded.
Section 2.10 Temporary First Mortgage Notes.
Until certificates representing First Mortgage Notes are ready for
delivery, the Company may prepare and the Trustee, upon receipt of an
Authentication Order, shall authenticate temporary First Mortgage Notes.
Temporary First Mortgage Notes shall be substantially in the form of
Certificated Notes but may have variations that the Company considers
appropriate for temporary First Mortgage Notes and as shall be reasonably
acceptable to the Trustee. Without unreasonable delay, the Company shall prepare
and the Trustee shall authenticate Certificated Notes in exchange for temporary
First Mortgage Notes.
Holders of temporary First Mortgage Notes shall be entitled to all of the
benefits of this Indenture.
Section 2.11 Cancellation.
The Company at any time may deliver First Mortgage Notes to the Trustee for
cancellation. The Registrar and Paying Agent shall forward to the Trustee any
First Mortgage Notes surrendered to them for registration of transfer, exchange
or payment. The Trustee and no one else shall cancel all First Mortgage Notes
surrendered for registration of transfer, exchange, payment, replacement or
cancellation and shall destroy canceled First Mortgage Notes (subject to the
record retention requirement of the Exchange Act). Certification of the
destruction of all canceled First Mortgage Notes shall be delivered to the
Company. The Company may not issue new First Mortgage Notes to replace First
Mortgage Notes that it has paid or that have been delivered to the Trustee for
cancellation.
Section 2.12 Defaulted Interest.
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If the Company defaults in a payment of interest on the First Mortgage
Notes, it shall pay the defaulted interest in any lawful manner plus, to the
extent lawful, interest payable on the defaulted interest, to the Persons who
are Holders on a subsequent special record date, in each case at the rate
provided in the First Mortgage Notes and in Section 4.01 hereof. The Company
shall notify the Trustee in writing of the amount of defaulted interest proposed
to be paid on each First Mortgage Note and the date of the proposed payment. The
Company shall fix or cause to be fixed each such special record date and payment
date, provided that no such special record date shall be less than 10 days prior
to the related payment date for such defaulted interest. At least 15 days before
the special record date, the Company (or, upon the written request of the
Company, the Trustee in the name and at the expense of the Company) shall mail
or cause to be mailed to Holders a notice that states the special record date,
the related payment date and the amount of such interest to be paid.
ARTICLE 3.
REDEMPTION AND PREPAYMENT
Section 3.01. Notices to Trustee.
If the Company elects to redeem First Mortgage Notes pursuant to the
optional redemption provisions of Section 3.07 hereof, it shall furnish to the
Trustee, at least 45 days but not more than 60 days before a redemption date, an
Officers' Certificate setting forth (i) the clause of this Indenture pursuant to
which the redemption shall occur, (ii) the redemption date, (iii) the principal
amount of First Mortgage Notes to be redeemed and (iv) the redemption price.
Section 3.02. Selection of First Mortgage Notes to Be Redeemed.
If less than all of the First Mortgage Notes are to be redeemed or
purchased in an offer to purchase at any time, the Trustee shall select the
First Mortgage Notes to be redeemed or purchased among the Holders of the First
Mortgage Notes in compliance with the requirements of the principal national
securities exchange, if any, on which the First Mortgage Notes are listed or, if
the First Mortgage Notes are not so listed, on a pro rata basis, by lot or in
accordance with any other method the Trustee considers fair and appropriate. In
the event of partial redemption by lot, the particular First Mortgage 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 First Mortgage Notes not previously called for redemption.
The Trustee shall promptly notify the Company in writing of the First
Mortgage Notes selected for redemption and, in the case of any First Mortgage
Note selected for partial redemption, the principal amount thereof to be
redeemed. First Mortgage Notes and portions of First Mortgage Notes selected
shall be in amounts of $1,000 or whole multiples of $1,000; except that if all
of the First Mortgage Notes of a Holder are to be redeemed, the entire
outstanding amount of First Mortgage Notes held by such Holder, even if not a
multiple of $1,000, shall be redeemed. Except as provided in the preceding
sentence, provisions of this Indenture that apply to First Mortgage Notes called
for redemption also apply to portions of First Mortgage Notes called for
redemption.
Section 3.03. Notice of Redemption.
Subject to the provisions of Section 3.09 hereof, at least 30 days but not
more than 60 days before a redemption date, the Company shall mail or cause to
be mailed, by first class mail, a notice of redemption to each Holder whose
First Mortgage Notes are to be redeemed at its registered address.
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The notice shall identify the First Mortgage Notes to be redeemed and shall
state:
(a) the redemption date;
(b) redemption price;
(c) if any First Mortgage Note is being redeemed in part, the portion
of the principal amount of such First Mortgage Note to be redeemed and
that, after the redemption date upon surrender of such First Mortgage Note,
a new First Mortgage Note or First Mortgage Notes in principal amount equal
to the unredeemed portion shall be issued upon cancellation of the original
First Mortgage Note;
(d) the name and address of the Paying Agent;
(e) that First Mortgage Notes called for redemption must be
surrendered to the Paying Agent to collect the redemption price;
(f) that, unless the Company defaults in making such redemption
payment, interest (including Liquidated Damages) on First Mortgage Notes
called for redemption ceases to accrue on and after the redemption date;
(g) the paragraph of the First Mortgage Notes and/or Section of this
Indenture pursuant to which the First Mortgage 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 First
Mortgage Notes.
At the Company's request, the Trustee shall give the notice of redemption
in the Company's name and at its expense; provided, however, that the Company
shall have delivered to the Trustee, at least 45 days prior to the redemption
date, an Officers' Certificate requesting that the Trustee give such notice and
setting forth the information to be stated in such notice as provided in the
preceding paragraph.
Section 3.04. Effect of Notice of Redemption.
Once notice of redemption is mailed in accordance with Section 3.03 hereof,
First Mortgage Notes called for redemption become irrevocably due and payable on
the redemption date at the redemption price. A notice of redemption may not be
conditional.
Section 3.05. Deposit of Redemption Price.
One Business Day prior to the redemption date, the Company shall deposit
with the Trustee or with the Paying Agent money sufficient to pay the redemption
price of and accrued and unpaid interest on all First Mortgage 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 and unpaid interest on, all First Mortgage Notes to be redeemed.
If the Company complies with the provisions of the preceding paragraph, on
and after the redemption date, interest shall cease to accrue on the First
Mortgage Notes or the portions of First Mortgage Notes called for redemption. If
a First Mortgage Note is redeemed on or after an interest record date but on or
prior to the related interest payment date, then any accrued and unpaid interest
(including Liquidated Damages) shall be paid to the Person in whose name such
First Mortgage Note was registered at the close of business on such record date.
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If any First Mortgage Note called for redemption shall not be so paid upon
surrender for redemption because of the failure of the Company to comply with
the preceding paragraph, interest shall be paid on the unpaid principal, from
the redemption date until such principal is paid, and to the extent lawful on
any interest not paid on such unpaid principal, in each case at the rate
provided in the First Mortgage Notes and in Section 4.01 hereof.
Section 3.06. First Mortgage Notes Redeemed in Part.
Upon surrender of a First Mortgage 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 First Mortgage
Note equal in principal amount to the unredeemed portion of the First Mortgage
Note surrendered.
Section 3.07. Optional Redemption.
(a) Except as set forth in clause (b) of this Section 3.07, the Company
shall not have the option to redeem the First Mortgage Notes pursuant to this
Section 3.07 prior to April 1, 2004. Thereafter, the Company shall have the
option to redeem the First Mortgage Notes, in whole or in part, upon not less
than 30 nor more than 60 day's notice at the redemption prices (expressed as
percentages of principal amount) set forth below plus accrued and unpaid
interest and Liquidated Damages thereon, if any, to the applicable redemption
date, if redeemed during the twelve-month period beginning on April 1 of the
years indicated below:
Year Percentage
---- ----------
2004.................................................. 105.125%
2005.................................................. 103.417%
2006.................................................. 101.708%
2007 and thereafter................................... 100.000%
(b) Notwithstanding the provisions of clause (a) of this Section 3.07, at
any time prior to April 1, 2002, the Company may redeem First Mortgage Notes
with the net proceeds of one or more Public Equity Offerings at a redemption
price equal to 110.250% of the aggregate principal amount thereof plus accrued
and unpaid interest (including Liquidated Damages) thereon, if any; provided
that at least 65% in aggregate principal amount of the First Mortgage Notes
originally issued remain outstanding immediately after the occurrence of such
redemption and that such redemption occurs within 45 days of the date of the
closing of such Public Equity Offering.
(c) Any redemption pursuant to this Section 3.07 shall be made pursuant to
the provisions of Section 3.01 through 3.06 hereof.
Section 3.08. Mandatory Redemption.
The Company shall not be required to make mandatory redemption or sinking
fund payments with respect to the First Mortgage Notes.
Section 3.09. Offer to Purchase by Application of Excess Proceeds.
In the event that, pursuant to Section 4.10 or Section 4.22 hereof, as
applicable, the Company shall be required to commence an offer to all Holders to
purchase First Mortgage Notes (an "Asset Sale Offer"), it shall follow the
procedures specified below.
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The Asset Sale Offer shall remain open for a period of 20 Business Days
following its commencement and no longer, except to the extent that a longer
period is required by applicable law (the "Offer Period"). No later than five
Business Days after the termination of the Offer Period (the "Purchase Date"),
the Company shall purchase the principal amount of First Mortgage Notes required
to be purchased pursuant to Section 4.10 or Section 4.22 hereof, as applicable,
(the "Offer Amount") or, if less than the Offer Amount has been tendered, all
First Mortgage Notes tendered in response to the Asset Sale Offer. Payment for
any First Mortgage Notes so purchased shall be made in the same manner as
interest payments are made.
If the Purchase Date is on or after an interest record date and on or
before the related interest payment date, any accrued and unpaid interest shall
be paid to the Person in whose name a First Mortgage Note is registered at the
close of business on such record date, and no additional interest shall be
payable to Holders who tender First Mortgage Notes pursuant to the Asset Sale
Offer.
Upon the commencement of an Asset Sale Offer, the Company shall send, by
first class mail, a notice to the Trustee and each of the Holders, with a copy
to the Trustee. The notice shall contain all instructions and materials
necessary to enable such Holders to tender First Mortgage Notes pursuant to the
Asset Sale Offer. The Asset Sale Offer shall be made to all Holders. The notice,
which shall govern the terms of the Asset Sale Offer, shall state:
(a) that the Asset Sale Offer is being made pursuant to this Section 3.09
and Section 4.10 or Section 4.22 hereof, as applicable, and the length of time
the Asset Sale Offer shall remain open;
(b) the Offer Amount, the purchase price and the Purchase Date;
(c) that any First Mortgage Note not tendered or accepted for payment shall
continue to accrete or accrue interest;
*(d) that, unless the Company defaults in making such payment, any First
Mortgage Note accepted for payment pursuant to the Asset Sale Offer shall cease
to accrete or accrue interest after the Purchase Date;
(e) that Holders electing to have a First Mortgage Note purchased pursuant
to an Asset Sale Offer may elect to have First Mortgage Notes purchased in
integral multiples of $1,000 only;
(f) that Holders electing to have a First Mortgage Note purchased pursuant
to any Asset Sale Offer shall be required to surrender the First Mortgage Note,
with the form entitled "Option of Holder to Elect Purchase" on the reverse of
the First Mortgage 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 Purchase Date;
(g) that Holders shall be entitled to withdraw their election if the
Company, the depositary or the Paying Agent, as the case may be, receives, not
later than the expiration of the Offer Period, a telegram, telex, facsimile
transmission or letter setting forth the name of the Holder, the principal
amount of the First Mortgage Note the Holder delivered for purchase and a
statement that such Xxxxxx is withdrawing his election to have such First
Mortgage Note purchased;
(h) that, if the aggregate principal amount of First Mortgage Notes
surrendered by Holders exceeds the Offer Amount, the Company shall select the
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First Mortgage Notes to be purchased on a pro rata basis (with such adjustments
as may be deemed appropriate by the Company so that only First Mortgage Notes in
denominations of $1,000, or integral multiples thereof, shall be purchased); and
(i) that Holders whose First Mortgage Notes were purchased only in part
shall be issued new First Mortgage Notes equal in principal amount to the
unpurchased portion of the First Mortgage Notes surrendered (or transferred by
book-entry transfer).
On or before the Purchase Date, the Company shall, to the extent lawful,
accept for payment, on a pro rata basis to the extent necessary, the Offer
Amount of First Mortgage Notes or portions thereof tendered pursuant to the
Asset Sale Offer, or if less than the Offer Amount has been tendered, all First
Mortgage Notes tendered, and shall deliver to the Trustee an Officers'
Certificate stating that such First Mortgage Notes or portions thereof were
accepted for payment by the Company in accordance with the terms of this Section
3.09. The Company, the Depositary or the Paying Agent, as the case may be, shall
promptly (but in any case not later than five days after the Purchase Date) mail
or deliver to each tendering Holder an amount equal to the purchase price of the
First Mortgage Notes tendered by such Holder and accepted by the Company for
purchase, and the Company shall promptly issue a new First Mortgage Note, and
the Trustee, upon written request from the Company shall authenticate and mail
or deliver such new First Mortgage Note to such Holder, in a principal amount
equal to any unpurchased portion of the First Mortgage Note surrendered. Any
First Mortgage Note not so accepted shall be promptly mailed or delivered by the
Company to the Holder thereof. The Company shall publicly announce the results
of the Asset Sale Offer on the Purchase Date.
Other than as specifically provided in this Section 3.09, any purchase
pursuant to this Section 3.09 shall be made pursuant to the provisions of
Sections 3.01 through 3.06 hereof.
ARTICLE 4.
COVENANTS
Section 4.01. Payment of First Mortgage Notes.
The Company shall pay or cause to be paid the principal of, premium, if
any, and interest on the First Mortgage Notes on the dates and in the manner
provided in the First Mortgage Notes. Principal, premium, if any, and interest
shall be considered paid on the date due if the Paying Agent, if other than the
Company or a Subsidiary thereof, holds as of 10:00 a.m. Eastern 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 then due. The Company shall pay all Liquidated Damages, if any, in the
same manner on the dates and in the amounts set forth in the Registration Rights
Agreement.
The Company shall pay interest (including post-petition interest in any
proceeding under any Bankruptcy Law) on overdue principal at the rate equal to
1% per annum in excess of the then applicable interest rate on the First
Mortgage Notes to the extent lawful; it shall pay interest (including
post-petition interest in any proceeding under any Bankruptcy Law) on overdue
installments of interest and Liquidated Damages (without regard to any
applicable grace period) at the same rate to the extent lawful.
Section 4.02. Maintenance of Office or Agency.
The Company shall maintain in the Borough of Manhattan, the City of New
York, an office or agency (which may be an office of the Trustee or an affiliate
of the Trustee, Registrar or co-registrar) where First Mortgage Notes may be
surrendered for registration of transfer or for exchange and where notices and
40
demands to or upon the Company in respect of the First Mortgage 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 First Mortgage Notes may be presented or surrendered for
any or all such purposes and may from time to time rescind such designations;
provided, however, that no such designation or rescission shall in any manner
relieve the Company of its obligation to maintain an office or agency in the
Borough of Manhattan, the City of New York for such purposes. The Company shall
give prompt written notice to the Trustee of any such designation or rescission
and of any change in the location of any such other office or agency.
The Company hereby designates the Corporate Trust Office of the Trustee as
one such office or agency of the Company in accordance with Section 2.03.
Section 4.03. Reports.
(a) Whether or not required by the rules and regulations of the SEC, so
long as any First Mortgage Notes are outstanding, the Company shall furnish to
the Holders of First Mortgage Notes (i) all quarterly and annual financial
information that would be required to be contained in a filing with the SEC on
Forms 10-Q and 10-K if the Company were required to file such forms, including a
"Management's Discussion and Analysis of Financial Condition and Results of
Operations" and, with respect to the annual information only, a report on the
annual financial statements by the Company's certified independent accountants
and (ii) all current reports that would be required to be filed with the SEC on
Form 8-K if the Company were required to file such reports, in each case, within
the time periods specified in the SEC's rules and regulations. In addition,
following the consummation of the Exchange Offer, whether or not required by the
rules and regulations of the SEC, the Company shall file a copy of all
information and reports referred to in clauses (i) and (ii) above with the SEC
for public availability within the time periods specified in the SEC's rules and
regulations (unless the SEC will not accept such a filing) and make such
information available to securities analysts and prospective investors upon
request. The Company and the Guarantors shall at all times comply with TIA
ss.314(a).
(b) For so long as any First Mortgage Notes remain outstanding, the Company
and the Guarantors shall furnish to the 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 4.04. Compliance Certificate.
(a) The Company and each Guarantor (to the extent that such Guarantor is so
required under the TIA) shall deliver to the Trustee, within 90 days after the
end of each fiscal year, an Officers' Certificate stating that a review of the
activities of the Company and its Subsidiaries during the preceding fiscal year
has been made under the supervision of the signing Officers with a view to
determining whether the Company has kept, observed, performed and fulfilled its
obligations under this Indenture and the Security Agreements, 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 the Security Agreements
and is not in default in the performance or observance of any of the terms,
provisions and conditions of this Indenture or the Security Agreements (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
41
Company is taking or proposes to take with respect thereto) and that to the best
of his or her knowledge no event has occurred and remains in existence by reason
of which payments on account of the principal of or interest (including
Liquidated Damages), if any, on the First Mortgage 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) So long as not contrary to the then current recommendations of the
American Institute of Certified Public Accountants, the year-end financial
statements delivered pursuant to Section 4.03(a) above shall be accompanied by a
written statement of the Company's independent public accountants (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 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 First Mortgage Notes are
outstanding, deliver to the Trustee, forthwith upon any Officer 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.
Section 4.05. Taxes.
The Company shall pay, and shall cause each of its Subsidiaries to pay,
prior to delinquency, all material taxes, assessments, and governmental levies
except such as are contested in good faith and by appropriate proceedings or
where the failure to effect such payment is not adverse in any material respect
to the Holders of the First Mortgage Notes.
Section 4.06. Stay, Extension and Usury Laws.
The Company and each of the Guarantors covenants (to the extent that it may
lawfully do so) that it shall not at any time insist upon, plead, or in any
manner whatsoever claim or take the benefit or advantage of, any stay, extension
or usury law wherever enacted, now or at any time hereafter in force, that may
affect the covenants or the performance of this Indenture; and the Company and
each of the Guarantors (to the extent that it may lawfully do so) hereby
expressly waives all benefit or advantage of any such law, and covenants that it
shall not, by resort to any such law, hinder, delay or impede the execution of
any power herein granted to the Trustee, but shall suffer and permit the
execution of every such power as though no such law has been enacted.
Section 4.07. Restricted Payments.
The Company shall not, and shall not permit any of its Restricted
Subsidiaries to, directly or indirectly: (i) declare or pay any dividend or make
any other payment or distribution on account of the Company's or any of its
Restricted Subsidiaries' Equity Interests (including, without limitation, any
payment in connection with any merger or consolidation involving the Company or
any of its Restricted Subsidiaries) or to the direct or indirect holders of the
Company's or any of its Restricted Subsidiaries' Equity Interests in their
capacity as such (other than dividends or distributions payable in Equity
Interests (other than Disqualified Stock) of the Company or Xxxxxxx-Xxxxx Group
or to the Company or a Restricted Subsidiary of the Company); (ii) purchase,
redeem or otherwise acquire or retire for value (including, without limitation,
in connection with any merger or consolidation involving the Company) any Equity
42
Interests of the Company or any direct or indirect parent of the Company (other
than Equity Interests owned by Xxxxxxx-Xxxxx Group, the Company or any Wholly
Owned Restricted Subsidiary of the Company); (iii) make any payment on or with
respect to, or purchase, redeem, defease or otherwise acquire or retire for
value any Indebtedness that is subordinated to the First Mortgage Notes or the
Subsidiary Guarantees, except a payment of interest or principal at the Stated
Maturity thereof; or (iv) make any Restricted Investment (all such payments and
other actions set forth in clauses (i) through (iv) above being collectively
referred to as "Restricted Payments"), unless, at the time of and after giving
effect to such Restricted Payment:
(a) no Default or Event of Default shall have occurred and be
continuing or would occur as a consequence thereof; and
(b) the Company would, at the time of such Restricted Payment and
after giving pro forma effect thereto as if such Restricted Payment had
been made at the beginning of the applicable four-quarter period, have been
permitted to incur at least $1.00 of additional Indebtedness pursuant to
the Fixed Charge Coverage Ratio test set forth in the first paragraph of
Section 4.09 hereof; and
(c) such Restricted Payment, together with the aggregate amount of all
other Restricted Payments made by the Company and its Restricted
Subsidiaries after the date of this Indenture (excluding Restricted
Payments permitted by clauses (ii), (iii), (iv), (v), (vi), (vii), (viii)
and (xii) of the next succeeding paragraph) is less than the sum, without
duplication, of (i) 50% of the Consolidated Net Income of the Company for
the period (taken as one accounting period) from the beginning of the date
of this Indenture to the end of the Company's most recently ended fiscal
quarter for which internal financial statements are available at the time
of such Restricted Payment (or, if such Consolidated Net Income for such
period is a deficit, less 100% of such deficit), plus (ii) 100% of the
aggregate net cash proceeds received by the Company since the date of this
Indenture as a contribution to its common equity capital or from the issue
or sale of Equity Interests of the Company (other than Disqualified Stock)
or from the issue or sale of convertible or exchangeable Disqualified Stock
or convertible or exchangeable debt securities of the Company that have
been converted into or exchanged for such Equity Interests (other than
Equity Interests (or Disqualified Stock or debt securities) sold to a
Subsidiary of the Company), plus (iii) to the extent that any Restricted
Investment that was made after the date of this Indenture is sold for cash
or otherwise liquidated or repaid for cash (or the non-cash proceeds have
been converted to cash), the lesser of (A) the cash return of capital with
respect to such Restricted Investment (less the cost of disposition, if
any) and (B) the initial amount of such Restricted Investment, plus (iv) if
any Unrestricted Subsidiary is redesignated as a Restricted Subsidiary, the
lesser of (A) the fair market value of the Company's ownership interest in
such redesignated Subsidiary (as determined in good faith by the Board of
Directors) as of the date of its redesignation or (B) the fair market value
when made of all Investments subsequent to the date of this Indenture
previously made by the Company and its Restricted Subsidiaries in such
redesignated Subsidiary but only to the extent that such Investments were
treated as a Restricted Payment (other than any Restricted Payment made
pursuant to clauses (i) through (xii) below).
So long as no Default has occurred and is continuing or would be caused
thereby, the preceding provisions shall not prohibit (i) the payment of any
dividend within 60 days after the date of declaration thereof, if at said date
of declaration such payment would have complied with the provisions of this
Indenture; (ii) the redemption, repurchase, retirement, defeasance or other
acquisition of any subordinated Indebtedness of the Company or any Restricted
Subsidiary or of any Equity Interests of the Company or any Restricted
Subsidiary in exchange for, or out of the net cash proceeds of the substantially
43
concurrent sale or issuance (other than to a Restricted Subsidiary of the
Company) of, Equity Interests of the Company (other than Disqualified Stock) or
from the net cash proceeds of an equity capital contribution to the Company;
provided that the amount of any such net cash proceeds that are utilized for any
such redemption, repurchase, retirement, defeasance or other acquisition shall
be excluded from clause (c) (ii) of the preceding paragraph; (iii) the
defeasance, redemption, repurchase or other acquisition of subordinated
Indebtedness of the Company or any Restricted Subsidiary with the net cash
proceeds from an incurrence of Permitted Refinancing Indebtedness; (iv) the
payment of any dividend by a Subsidiary of the Company to the holders of its
common Equity Interests on a pro rata basis; (v) the repurchase, redemption or
other acquisition or retirement for value of any Equity Interests of the Company
or any Restricted Subsidiary of the Company held by any member of the Company's
(or any of its Restricted Subsidiaries') management pursuant to any management
equity subscription agreement or stock option agreement; provided that the
aggregate price paid for all such repurchased, redeemed, acquired or retired
Equity Interests shall not exceed $250,000 in any twelve-month period plus the
amount received by the Company or any Restricted Subsidiary of the Company from
any member of management for the purchase of any Equity Interests of the Company
or any Restricted Subsidiary of the Company during such twelve-month period;
provided that any amounts so received for such purchases shall be excluded from
clause (c)(ii) of the preceding paragraph to the extent of any such repurchase,
redemption or other acquisition or retirement for value; (vi) Permitted
Investments; (vii) repurchase of Equity Interests deemed to occur upon exercise
of stock options to the extent that such Equity Interests represent a portion of
the exercise price of such options; (viii) any loans, advances, distributions or
payments from the Company to any Restricted Subsidiary, or any loans, advances,
distributions or payments by a Restricted Subsidiary to the Company or to
another Restricted Subsidiary; provided, however, that any such loans, advances,
distributions or payments must be expressly subordinated to the prior payment in
full in cash of all Obligations with respect to the First Mortgage Notes; (ix)
the defeasance, redemption, repurchase or other acquisition of any Indebtedness
subordinated or pari passu in right of payment to the First Mortgage Notes at a
purchase price not greater than 101% of the principal amount of such
Indebtedness, plus any accrued and unpaid interest thereon, in the event of a
Change of Control; provided that prior to or contemporaneously with such
repurchase, the Company has made the Change of Control Offer with respect to the
First Mortgage Notes and has repurchased all First Mortgage Notes validly
tendered for payment and not withdrawn in connection with such Change of Control
Offer; (x) other Restricted Payments in an aggregate amount not to exceed $5.0
million; (xi) any Investments in a joint venture or in a Permitted Business in
an aggregate amount not to exceed $10.0 million; or (xii) the declaration or
payment of dividends or advances to Xxxxxxx-Xxxxx Group for expenses incurred by
Xxxxxxx-Xxxxx Group in its capacity as a holding company that are attributable
to the operations of the Company and its Restricted Subsidiaries, including,
without limitation, (A) fees and expenses paid to members of the Board of
Directors of Xxxxxxx-Xxxxx Group, (B) general corporate overhead expenses of
Xxxxxxx-Xxxxx Group directly and exclusively attributable to the ownership
and/or business and operations of the Company and its Restricted Subsidiaries,
not to exceed $100,000 in any fiscal year or $500,000 in any fiscal year if
Xxxxxxx-Xxxxx Group is a public reporting company under the Securities Exchange
Act of 1934, (C) foreign, federal, state or local tax liabilities paid by
Xxxxxxx-Xxxxx Group directly and exclusively attributable to the ownership
and/or business and operations of the Company and its Restricted Subsidiaries
(other than Xxxxxxx-Xxxxx Group), (D) the repurchase, redemption or other
acquisition or retirement for value of any Equity Interests of Xxxxxxx-Xxxxx
Group held by any member or former member of Xxxxxxx-Xxxxx Group's or the
Company's (or any of their Restricted Subsidiaries') Board of Directors or any
present or former officer, employee or director of Xxxxxxx-Xxxxx Group, the
Company or any Restricted Subsidiary pursuant to any management equity
subscription agreement or stock option agreement, directly and exclusively
attributable to the ownership and/or business and operations of the Company and
its Restricted Subsidiaries (other than Xxxxxxx-Xxxxx Group), provided that the
aggregate amount paid pursuant to this clause (D) does not exceed in any fiscal
year $250,000, plus the aggregate cash proceeds received by the Company or
Xxxxxxx-Xxxxx Group from any reissuance of Equity Interests by Xxxxxxx-Xxxxx
Group or the Company to employees, officers or directors of Xxxxxxx-Xxxxx Group,
44
the Company or any Restricted Subsidiary during such fiscal year provided that
any cash proceeds received from any such reissuance shall be excluded from
clause (c)(ii) of the preceding paragraph, to the extent of any such repurchase,
redemption, or other acquisition or retirement for value, (E) customary and
reasonable accounting, legal or other professional or administrative expenses
directly and exclusively attributable to the ownership and/or business and
operations of the Company and its Restricted Subsidiaries (other than
Xxxxxxx-Xxxxx Group), and (F) reasonable fees, offering costs and related
expenses associated with any registration statements filed with the Commission;
provided, however, the aggregate amount paid pursuant to the foregoing clauses
(A) and (E) does not exceed $500,000 in any fiscal year.
The amount of all Restricted Payments (other than cash) shall be the fair
market value on the date of the Restricted Payment of the asset(s) or securities
proposed to be transferred or issued to or by the Company or such Restricted
Subsidiary, as the case may be, pursuant to the Restricted Payment. The fair
market value of any assets or securities that are required to be valued by this
Section 4.07 shall be determined by the Board of Directors whose resolution with
respect thereto shall be delivered to the Trustee. The Board of Directors'
determination must be based upon an opinion or appraisal issued by an
accounting, appraisal or investment banking firm of national standing if the
fair market value exceeds $5.0 million. Not later than the date of making any
Restricted Payment, the Company shall deliver to the Trustee an Officers'
Certificate stating that such Restricted Payment is permitted and setting forth
the basis upon which the calculations required by this Section 4.07 were
computed, together with a copy of any fairness opinion or appraisal required by
this Indenture.
The Board of Directors may designate any Restricted Subsidiary (other than
any of the Special Purpose Restricted Subsidiaries) to be an Unrestricted
Subsidiary if such designation would not cause a Default. For purposes of making
such determination, all outstanding Investments by the Company and its
Restricted Subsidiaries (except to the extent repaid in cash) in the Subsidiary
so designated shall be deemed to be Restricted Payments at the time of such
designation and shall reduce the amount available for Restricted Payments under
the first paragraph of this Section 4.07. All such outstanding Investments shall
be deemed to constitute Investments in an amount equal to the fair market value
of such Investments at the time of such designation (as determined in good faith
by the Board of Directors). Such designation shall only be permitted if such
Restricted Payment would be permitted at such time and if such Restricted
Subsidiary otherwise meets the definition of an Unrestricted Subsidiary.
For purposes of determining compliance with this Section 4.07, in the event
that a Restricted Payment meets the criteria of more than one of the exceptions
described in (i) through (xii) above or is entitled to be made pursuant to the
first paragraph of this Section 4.07, the Company shall, in its sole discretion,
classify such Restricted Payment in any manner that complies with this Section
4.07.
Section 4.08. Dividend and Other Payment Restrictions Affecting Restricted
Subsidiaries.
The Company shall not, and shall not permit any of its Restricted
Subsidiaries to, directly or indirectly, create or permit to exist or become
effective any consensual encumbrance or restriction on the ability of any
Restricted Subsidiary to (i) pay dividends or make any other distributions on
its Capital Stock to the Company or any of its Restricted Subsidiaries, or with
respect to any other interest or participation in, or measured by, its profits,
or pay any indebtedness owed to the Company or any of its Restricted
Subsidiaries, (ii) make loans or advances to the Company or any of its
Restricted Subsidiaries or (iii) transfer any of its properties or assets to the
Company or any of its Restricted Subsidiaries.
45
However, the preceding restrictions shall not apply to Xxxxxxx-Xxxxx Group
and to encumbrances or restrictions existing under or by reason of (i) Existing
Indebtedness and the Credit Facilities as in effect on the date of this
Indenture and any amendments, modifications, restatements, renewals, increases,
supplements, refundings, replacements or refinancings thereof, provided that
such amendments, modifications, restatements, renewals, increases, supplements,
refundings, replacement or refinancings are no more restrictive, taken as a
whole, with respect to such dividend and other payment restrictions than those
contained in such Existing Indebtedness, as in effect on the date of this
Indenture, (ii) this Indenture, the Guarantees and the First Mortgage Notes,
(iii) applicable law, (iv) any instrument governing Indebtedness or Capital
Stock of a Person acquired by the Company or any of its Restricted Subsidiaries
as in effect at the time of such acquisition (except to the extent such
Indebtedness was incurred in connection with or in contemplation of such
acquisition), which encumbrance or restriction is not applicable to any Person,
or the properties or assets of any Person, other than the Person, or the
property or assets of the Person, so acquired, provided that, in the case of
Indebtedness, such Indebtedness was permitted by the terms of this Indenture to
be incurred, (v) customary non-assignment provisions in leases or other
agreements entered into in the ordinary course of business and consistent with
past practices, (vi) purchase money obligations for property acquired in the
ordinary course of business that impose restrictions on the property so acquired
of the nature described in clause (iii) of the preceding paragraph, (vii) any
agreement for the sale or other disposition of a Restricted Subsidiary or all or
substantially all of the assets of such Restricted Subsidiary that restricts
distributions by that Restricted Subsidiary pending such sale or other
disposition, (viii) Permitted Refinancing Indebtedness; provided that the
restrictions contained in the agreements governing such Permitted Refinancing
Indebtedness are no more restrictive, taken as a whole, than those contained in
the agreements governing the Indebtedness being refinanced, (ix) Liens securing
Indebtedness that limit the right of the debtor to dispose of the assets subject
to such Lien, (x) provisions with respect to the disposition or distribution of
assets or property in joint venture agreements, assets sale agreements, stock
sale agreements and other similar agreements entered into in the ordinary course
of business, (xi) restrictions on cash or other deposits or net worth imposed by
customers under contracts entered into in the ordinary course of business, (xii)
permitted mortgage or construction financing that imposes restrictions on the
property acquired or improved, (xiii) encumbrances or restrictions imposed by
amendments to the contracts, agreements or obligations referred to in the
foregoing clauses (i) through (xii) if not materially more restrictive in the
aggregate than the contract, agreement or obligation in question prior to its
amendment, (xiv) protective liens filed in connection with sale-leaseback
transactions permitted under Section 4.17 hereof and (xv) Indebtedness permitted
to be incurred pursuant to clauses (xi), (xiii) and (xv) of the third paragraph
of Section 4.09 hereof.
Section 4.09. Incurrence of Indebtedness and Issuance of Preferred Stock.
The Company shall not, and shall not permit any of its Restricted
Subsidiaries to, directly or indirectly, create, incur, issue, assume, guarantee
or otherwise become directly or indirectly liable, contingently or otherwise,
with respect to (collectively, "incur") any Indebtedness (including Acquired
Debt), and the Company shall not issue any Disqualified Stock and shall not
permit any of its Restricted Subsidiaries to issue any shares of Preferred
Stock; provided, however, that the Company may incur Indebtedness (including
Acquired Debt) or issue Disqualified Stock, and the Restricted Subsidiaries
(other than the Special Purpose Restricted Subsidiaries) may incur Indebtedness
or issue Preferred Stock, if the Fixed Charge Coverage Ratio for the Company's
most recently ended four full fiscal quarters for which internal financial
statements are available immediately preceding the date on which such additional
Indebtedness is incurred or such Disqualified Stock is issued would have been at
least 2.0 to 1.0 determined on a pro forma basis (including a pro forma
application of the net proceeds therefrom), as if the additional Indebtedness
had been incurred or the Preferred Stock or Disqualified Stock had been issued,
as the case may be, at the beginning of such four-quarter period.
46
If such four quarter period includes any period prior to the date of this
Indenture, the financial statements for such prior period shall be prepared on a
pro forma basis giving effect to the Transactions in accordance with Article 11
of Regulation S-X under the Securities Act.
The first paragraph of this Section 4.09 shall not prohibit the incurrence
of any of the following items of Indebtedness (collectively, "Permitted Debt"):
(i) the incurrence by the Company and any Restricted Subsidiary (other
than the Special Purpose Restricted Subsidiaries) of Indebtedness under
Credit Facilities in an aggregate principal amount at any one time
outstanding under this clause (i) not to exceed the Borrowing Base, less
the aggregate amount of all mandatory reductions required by Sections 4.10
and 4.16 hereof that have actually been made since the date of this
Indenture; provided, that the Indebtedness incurred to refund, refinance or
replace any Indebtedness incurred pursuant to this clause (i) need not
constitute Permitted Refinancing Indebtedness;
(ii) the incurrence by the Company and its Restricted Subsidiaries
(other than the Special Purpose Restricted Subsidiaries) of the Existing
Indebtedness;
(iii) the incurrence by the Company and the Restricted Subsidiaries of
Indebtedness represented by the First Mortgage Notes to be issued on the
date of this Indenture and the Exchange Notes to be issued pursuant to the
Registration Rights Agreements (including, in each case, the Subsidiary
Guarantees);
(iv) the incurrence by the Company or any of its Restricted
Subsidiaries (other than the Special Purpose Restricted Subsidiaries) of
Permitted Refinancing Indebtedness in exchange for, or the net proceeds of
which are used to refund, refinance or replace Indebtedness (other than
intercompany Indebtedness) that was permitted by this Indenture to be
incurred under the first paragraph of this Section 4.09 or clauses (ii),
(iii), (iv), (ix) or (xvi) of this paragraph;
(v) the incurrence by the Company or any of its Restricted
Subsidiaries of intercompany Indebtedness between or among the Company and
any of its Wholly Owned Restricted Subsidiaries; provided, however, that
(i) if the Company or any Guarantor is the obligor on such Indebtedness,
such Indebtedness must be expressly subordinated to the prior payment in
full in cash of all Obligations with respect to the First Mortgage Notes,
in the case of the Company, or the Guarantee, in the case of a Guarantor
and (ii) (A) any subsequent issuance or transfer of Equity Interests that
results in any such Indebtedness being held by a Person other than the
Company or a Restricted Subsidiary thereof and (B) any sale or other
transfer of any such Indebtedness to a Person that is not either the
Company or a Wholly Owned Restricted Subsidiary thereof shall be deemed, in
each case, to constitute an incurrence of such Indebtedness by the Company
or such Subsidiary, as the case may be, that was not permitted by this
clause (v);
(vi) the incurrence by the Company or any of its Restricted
Subsidiaries (other than the Special Purpose Restricted Subsidiaries) of
Hedging Obligations that are incurred for the purpose of fixing or hedging
interest rate risk with respect to any floating rate Indebtedness that is
permitted by the terms of this Indenture to be outstanding;
(vii) the guarantee by the Company or any of its Restricted
Subsidiaries (other than the Special Purpose Restricted Subsidiaries) of
Indebtedness of the Company or a Restricted Subsidiary of the Company that
was permitted to be incurred by another provision of this Section 4.09;
47
(viii) the accrual of interest, the accretion or amortization of
original issue discount, the payment of interest on any Indebtedness in the
form of additional Indebtedness with the same terms, and the payment of
dividends on Disqualified Stock in the form of additional shares of the
same class of Disqualified Stock shall not be deemed to be an incurrence of
Indebtedness or an issuance of Disqualified Stock for purposes of this
Section 4.09; provided, in each such case, that the amount thereof is
included in Fixed Charges of the Company as accrued;
(ix) the incurrence by the Company or any of its Restricted
Subsidiaries (other than the Special Purpose Restricted Subsidiaries) of
additional Indebtedness in an aggregate principal amount (or accreted
value, as applicable) at any time outstanding, including all Permitted
Refinancing Indebtedness incurred to refund, refinance or replace any
Indebtedness incurred pursuant to this clause (ix), not to exceed $20.0
million;
(x) the incurrence by the Company or any of its Restricted
Subsidiaries (other than the Special Purpose Restricted Subsidiaries) of
obligations that are incurred for the purpose of fixing or hedging currency
risk or the value of commodities or foreign currencies purchased or
received by the Company or any Restricted Subsidiary in the ordinary course
of business in amounts reasonably related to the Company's business and not
for speculative purposes;
(xi) Indebtedness of the Company or a Restricted Subsidiary (other
than the Special Purpose Restricted Subsidiaries) owed to (including
obligations in respect of letters of credit for the benefit of) any Person
in connection with worker's compensation, health, disability or other
employee benefits or property, casualty or liability insurance provided by
such Person to the Company or such Restricted Subsidiary, pursuant to
reimbursement or indemnification obligations to such Person, in each case
incurred in the ordinary course of business and consistent with past
practices;
(xii) Indebtedness arising from agreements of the Company or a
Restricted Subsidiary (other than the Special Purpose Restricted
Subsidiaries) providing for indemnification, adjustment of purchase price
or similar obligations, in each case, incurred or assumed in connection
with the disposition of any business, asset or Equity Interests; provided
that the maximum aggregate liability of all such Indebtedness shall at no
time exceed the gross proceeds actually received by the Company and its
Restricted Subsidiaries in connection with such disposition;
(xiii) obligations in respect of performance and surety bonds and
completion guarantees provided by the Company or any Restricted Subsidiary
(other than the Special Purpose Restricted Subsidiaries) in the ordinary
course of business;
(xiv) the incurrence by the Company's Unrestricted Subsidiaries of
Non-Recourse Debt, provided, however, that if any such Indebtedness ceases
to be Non-Recourse Debt or such Subsidiary ceases to be an Unrestricted
Subsidiary, such event shall be deemed to constitute an incurrence of
Indebtedness by a Restricted Subsidiary of the Company;
(xv) the incurrence of Indebtedness (other than by the Special Purpose
Restricted Subsidiaries) in connection with Receivables Transactions; and
48
(xvi) the incurrence by Xxxxxxx-Xxxxx Group of Indebtedness
represented by (A) the non-cash pay subordinated notes issued to IMC
Global, 399 Ventures and Management Investors to consummate the
Transactions and (B) the 4 1/2% convertible subordinated note issued to 399
Ventures on March 31, 1999 to effect the acquisitions of AgriBusiness and
Xxxxxxx-Xxxxx.
The Company shall not incur any Indebtedness (including Permitted Debt)
that is contractually subordinated in right of payment to any other Indebtedness
of the Company unless such Indebtedness is also contractually subordinated in
right of payment to the First Mortgage Notes on substantially identical terms;
provided, however, that no Indebtedness of the Company shall be deemed to be
contractually subordinated in right of payment to any other Indebtedness of the
Company solely by virtue of being unsecured.
For purposes of determining compliance with this Section 4.09, in the event
that an item of proposed Indebtedness meets the criteria of more than one of the
categories of Permitted Debt described in clauses (i) through (xvi) above, or is
entitled to be incurred pursuant to the first paragraph of this Section 4.09,
the Company shall be permitted to classify such item of Indebtedness on the date
of its incurrence, or reclassify all or a portion of such item of Indebtedness,
in any manner that complies with this Section 4.09. Indebtedness under Credit
Facilities outstanding on the date on which First Mortgage Notes are first
issued and authenticated under this Indenture shall be deemed to have been
incurred on such date in reliance on the exception provided by clause (i) of the
definition of Permitted Debt.
Notwithstanding any of the foregoing, the Special Purpose Restricted
Subsidiaries shall not incur any Indebtedness except for Permitted Debt
specifically provided for in clauses (iii) and (v) of this Section 4.09.
Section 4.10. Asset Sales.
The Company shall not, and shall not permit any of its Restricted
Subsidiaries, to consummate an Asset Sale other than transfers of Receivables to
a Receivables Subsidiary in connection with a Receivables Transaction and
regulatory divestitures required in connection with acquisitions unless (i) the
Company (or the Restricted 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 assets or Equity Interests issued or sold or otherwise disposed of,
(ii) such fair market value is determined by the Company's Board of Directors
and evidenced by a resolution of the Board of Directors set forth in an
Officers' Certificate delivered to the Trustee and (iii) at least 75% of the
consideration therefor received by the Company or such Restricted Subsidiary is
in the form of cash. For purposes of this provision, each of the following shall
be deemed to be cash: (A) any liabilities (as shown on the Company's or such
Restricted Subsidiary's most recent balance sheet), of the Company or any
Restricted Subsidiary (other than contingent liabilities and liabilities that
are by their terms subordinated to the First Mortgage Notes or any Subsidiary
Guarantee) that are assumed by the transferee of any such assets pursuant to a
customary assumption agreement and (B) any securities, notes or other
obligations received by the Company or any such Restricted Subsidiary from such
transferee that are within 45 days converted by the Company or such Restricted
Subsidiary into cash (to the extent of the cash received in that conversion);
provided, however, that the 75% limitation referred to above shall not apply to
any Asset Sale in which the cash or Cash Equivalents portion of the
consideration received therefore is equal to or greater than what the net
after-tax proceeds would have been had such Asset Sale complied with the
aforementioned 75% limitation.
Within 365 days after the receipt of any Net Proceeds from an Asset Sale,
the Company may apply such Net Proceeds at its option (a) to repay Senior Debt
49
and, if the Senior Debt repaid is revolving credit Indebtedness, to
correspondingly reduce commitments with respect thereto, (b) to acquire all or
substantially all of the assets of, or a majority of the Voting Stock of,
another Permitted Business, (c) to make a capital expenditure or (d) to acquire
other long-term assets that are used or useful in a Permitted Business.
Pending the final application of any such Net Proceeds, the Company may
temporarily reduce revolving credit borrowings or otherwise invest such Net
Proceeds in any manner that is not prohibited by this Indenture.
Any Net Proceeds from Asset Sales that are not applied or invested as
provided in the preceding paragraph shall constitute "Excess Proceeds." When the
aggregate amount of Excess Proceeds exceeds $5.0 million, the Company shall make
an Asset Sale Offer to all Holders of First Mortgage Notes and all holders of
other Indebtedness that is pari passu with the First Mortgage Notes containing
provisions similar to those set forth in this Indenture with respect to offers
to purchase or redeem with the proceeds of sales of assets to purchase the
maximum principal amount of First Mortgage Notes and such other pari passu
Indebtedness that may be purchased out of the Excess Proceeds. The offer price
in any Asset Sale Offer shall be equal to 100% of principal amount plus accrued
and unpaid interest (including Liquidated Damages), if any, to the date of
purchase, and shall be payable in cash. If any Excess Proceeds remain after
consummation of an Asset Sale Offer, the Company may use such Excess Proceeds
for any purpose not otherwise prohibited by this Indenture. If the aggregate
principal amount of First Mortgage Notes and such other pari passu Indebtedness
tendered into such Asset Sale Offer exceeds the amount of Excess Proceeds, the
Trustee shall select the First Mortgage Notes and such other pari passu
Indebtedness to be purchased on a pro rata basis based on the principal amount
of First Mortgage Notes and such other pari passu Indebtedness tendered. Upon
completion of each Asset Sale Offer, the amount of Excess Proceeds shall be
reset at zero.
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 each
repurchase of First Mortgage Notes pursuant to an Asset Sale Offer. To the
extent that the provisions of any securities laws or regulations conflict with
this Section 4.10, the Company shall comply with the applicable securities laws
and regulations and shall not be deemed to have breached its obligations
hereunder by virtue of such conflict.
Section 4.11. Transactions with Affiliates.
The Company shall not, and shall not permit any of its Restricted
Subsidiaries to, make any payment to, or sell, lease, transfer or otherwise
dispose of any of its properties or assets to, or purchase any property or
assets from, or enter into or make or amend any transaction, contract,
agreement, understanding, loan, advance or guarantee with, or for the benefit
of, any Affiliate (each, an "Affiliate Transaction"), unless (a) such Affiliate
Transaction is on terms that are no less favorable to the Company or the
relevant Restricted Subsidiary than those that would have been obtained in a
comparable transaction by the Company or such Restricted Subsidiary with an
unrelated Person and (b) the Company delivers to the Trustee (i) with respect to
any Affiliate Transaction or series of interrelated or contractually related
Affiliate Transactions involving aggregate consideration in excess of $5.0
million, a resolution of the Board of Directors set forth in an Officers'
Certificate certifying that such Affiliate Transaction complies with this
Section 4.11 and that such Affiliate Transaction has been approved by a majority
of the disinterested members of the Board of Directors and (ii) with respect to
any Affiliate Transaction or series of interrelated or contractually related
Affiliate Transactions involving aggregate consideration in excess of $10.0
50
million, an opinion as to the fairness to the Holders of such Affiliate
Transaction from a financial point of view issued by an accounting, appraisal or
investment banking firm of national standing.
The following items shall not be deemed to be Affiliate Transactions and,
therefore, shall not be subject to the provisions of the prior paragraph: (i)
any employment agreement, compensation or employee benefit arrangements,
incentive arrangements and customary director fees (including grants of stock,
stock options or other Equity Interests) entered into by the Company or any of
its Restricted Subsidiaries in the ordinary course of business and consistent
with the past practice of the Company or such Restricted Subsidiary; (ii)
transactions between or among the Company and/or its Restricted Subsidiaries;
(iii) transactions with a Person that is an Affiliate of Xxxxxxx-Xxxxx Group or
the Company solely because Xxxxxxx-Xxxxx Group or the Company owns an Equity
Interest in such Person; (iv) payment of reasonable directors fees to Persons
who are not otherwise Affiliates of Xxxxxxx-Xxxxx Group or the Company; (v)
Restricted Payments that are permitted by Section 4.07 hereof; and (vi)
customary loans, advances, fees and compensation paid to, and indemnity provided
on behalf of, officers, directors, employees or consultants of the Company or
any of its Restricted Subsidiaries.
Section 4.12. Liens.
The Special Purpose Restricted Subsidiaries shall not, and the Company
shall not permit any of its Special Purpose Restricted Subsidiaries to, directly
or indirectly, create, incur, assume or suffer to exist any Lien of any kind,
except for Special Purpose Restricted Subsidiary Permitted Liens. The Company
shall not, and shall not permit any of its Restricted Subsidiaries to, directly
or indirectly, create, incur, assume or suffer to exist any Lien of any kind
securing the Collateral or Indebtedness, Attributable Debt or trade payables on
any asset now owned or hereafter acquired, except Permitted Liens; provided,
however that in addition to creating Permitted Liens on its properties or
assets, the Company and any of its Restricted Subsidiaries (other than the
Special Purpose Restricted Subsidiaries) may create any Lien upon any of their
properties or assets (including but not limited to any capital stock of its
Subsidiaries) if the First Mortgage Notes are equally and ratably secured.
Section 4.13. Line of Business.
The Company shall not, and shall not permit any Restricted Subsidiary to,
engage in any business other than Permitted Businesses, except to such extent as
would not be material to the Company and its Restricted Subsidiaries taken as a
whole.
Section 4.14. Corporate Existence.
Subject to Article 5 hereof, the Company shall do or cause to be done all
things necessary to preserve and keep in full force and effect (i) its corporate
existence, and the corporate, partnership or other existence of each of its
Restricted Subsidiaries, in accordance with the respective organizational
documents (as the same may be amended from time to time) of the Company or any
such Restricted Subsidiary and (ii) the rights (charter and statutory), licenses
and franchises of the Company and its Restricted Subsidiaries; provided,
however, that the Company shall not be required to preserve any such right,
license or franchise, or the corporate, partnership or other existence of any of
its Subsidiaries, if the Board of Directors shall determine that the
preservation thereof is no longer desirable in the conduct of the business of
the Company and its Subsidiaries, taken as a whole, and that the loss thereof is
not adverse in any material respect to the Holders of the First Mortgage Notes.
51
Section 4.15. Offer to Repurchase Upon Change of Control.
(a) If a Change of Control occurs, each Holder of First Mortgage Notes
shall have the right to require the Company to repurchase all or any part (equal
to $1,000 or an integral multiple thereof) of that Holder's First Mortgage Notes
pursuant to an offer (the "Change of Control Offer") on the terms set forth in
this Indenture. In the Change of Control Offer, the Company shall offer a
payment in cash (the "Change of Control Payment") equal to 101% of the aggregate
principal amount of First Mortgage Notes repurchased plus accrued and unpaid
interest (including Liquidated Damages) thereon, to the date of purchase. Within
ten days following any Change of Control, the Company shall mail a notice to
each Holder describing the transaction or transactions that constitute the
Change of Control and offering to repurchase First Mortgage Notes on the Change
of Control Payment Date specified in such notice which date shall be no earlier
than 30 days and no later than 60 days from the date such notice is mailed,
pursuant to the procedures required by this Indenture and described in such
notice. 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 First Mortgage Notes as a result of a Change of Control. To
the extent that the provisions of any securities laws or regulations conflict
with the Change of Control provisions of this Indenture, the Company shall
comply with the applicable securities laws and regulations and shall not be
deemed to have breached its obligations under the Change of Control provisions
of this Indenture by virtue of such conflict.
(b) On the date the Change of Control Payment is made (the "Change of
Control Payment Date"), the Company shall, to the extent lawful (1) accept for
payment all First Mortgage Notes or portions thereof properly tendered pursuant
to the Change of Control Offer, (2) deposit with the Paying Agent an amount
equal to the Change of Control Payment in respect of all First Mortgage Notes or
portions thereof so tendered and (3) deliver or cause to be delivered to the
Trustee the First Mortgage Notes so accepted together with an Officers'
Certificate stating the aggregate principal amount of First Mortgage Notes or
portions thereof being purchased by the Company.
(c) The Paying Agent shall promptly mail to each Holder of First Mortgage
Notes so tendered the Change of Control Payment for such First Mortgage Notes,
and the Trustee shall promptly authenticate and mail (or cause to be transferred
by book entry) to each Holder a new First Mortgage Note equal in principal
amount to any unpurchased portion of the First Mortgage Notes surrendered, if
any; provided that each such new First Mortgage Note shall be in a principal
amount of $1,000 or an integral multiple thereof.
(d) The provisions described above that require the Company to make a
Change of Control Offer following a Change of Control shall be applicable
regardless of whether or not any other provisions of this Indenture are
applicable. Except as described above with respect to a Change of Control, this
Indenture does not contain provisions that permit the Holders of the First
Mortgage Notes to require that the Company repurchase or redeem the First
Mortgage Notes in the event of a takeover, recapitalization or similar
transaction.
(e) The Company shall not be required to make a Change of Control Offer
upon a Change of Control if a third party makes the Change of Control Offer in
the manner, at the times and otherwise in compliance with the requirements set
forth in this Section 4.15 and purchases all First Mortgage Notes validly
tendered and not withdrawn under such Change of Control Offer.
Section 4.16. Sale of Nitrogen Facility
Upon the sale of a Nitrogen Facility (or the capital stock of the Guarantor
owning such facility), each Holder of First Mortgage Notes shall have the right
to require the Company to repurchase ratably with the Net Proceeds of such sale
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all outstanding First Mortgage Notes, in whole or in part, at a repurchase price
equal to the Permitted Sale Repurchase Price, according to the procedures set
forth in Section 4.15 hereof. "Permitted Sale Repurchase Price" means an amount
equal to, as determined by an Independent Investment Banker, the sum of the
present values of the remaining scheduled payments of interest and the scheduled
payment of principal thereon, discounted to the repurchase date on a semiannual
basis (assuming a 360-day year consisting of twelve 30-day months) at the
Special Adjusted Treasury Rate, plus accrued and unpaid interest thereon and
Liquidated Damages, if any, to the repurchase date.
All of the consideration received by the Company or a Restricted Subsidiary
from the sale of a Nitrogen Facility shall be in the form of cash. Any proceeds
from the sale of a Nitrogen Facility remaining after the repurchase of First
Mortgage Notes set forth in Section 4.15 shall be applied to permanently repay
Senior Debt and, if the Senior Debt repaid is revolving credit Indebtedness,
shall permanently reduce commitments with respect thereto.
Section 4.17. Limitation on Sale and Leaseback Transactions.
The Company shall not, and shall not permit any of its Restricted
Subsidiaries to, enter into any sale and leaseback transaction; provided that
the Company or any Restricted Subsidiary may enter into a sale and leaseback
transaction if (i) the Company or that Restricted Subsidiary, as applicable,
could have incurred Indebtedness in an amount equal to the Attributable Debt
relating to such sale and leaseback transaction under Section 4.09 hereof, (ii)
the gross cash proceeds of that sale and leaseback transaction are at least
equal to the fair market value, as determined in good faith by the Board of
Directors and set forth in an Officers' Certificate delivered to the Trustee, of
the property that is the subject of that sale and leaseback transaction and
(iii) the transfer of assets in that sale and leaseback transaction is permitted
by, and the Company applies the proceeds of such transaction in compliance with
Section 4.10 hereof.
Section 4.18. Limitation on Issuances and Sales of Capital Stock of Wholly
Owned Restricted Subsidiaries.
The Company shall not, and shall not permit any of its Restricted
Subsidiaries (other than Xxxxxxx-Xxxxx Group) to, transfer, convey, sell, lease
or otherwise dispose of any Equity Interests in any Wholly Owned Restricted
Subsidiary of the Company to any Person (other than the Company or a Wholly
Owned Restricted Subsidiary of the Company), unless (i) such transfer,
conveyance, sale, lease or other disposition is of all the Equity Interests in
such Wholly Owned Restricted Subsidiary and the cash Net Proceeds from such
transfer, conveyance, sale, lease or other disposition are applied in accordance
with Section 4.10 hereof or (ii) such transfer, conveyance, sale, lease or other
disposition is of less than all the Capital Stock of such Wholly Owned
Restricted Subsidiary, such formerly Wholly Owned Restricted Subsidiary has been
duly designated as an Unrestricted Subsidiary and no longer constitutes a
Restricted Subsidiary after such sale, the Company could have made an Investment
in the retained shares of such formerly Wholly Owned Restricted Subsidiary at
the time of such sale in accordance with Section 4.07 hereof and the cash Net
Proceeds from such transfer, conveyance, sale, lease or other disposition are
applied in accordance with Section 4.10 hereof.
In addition, the Company shall not permit any Wholly Owned Restricted
Subsidiary of the Company to issue any of its Equity Interests (other than, if
necessary, shares of its Capital Stock constituting directors' qualifying
shares) to any Person other than to the Company or a Wholly Owned Restricted
Subsidiary of the Company.
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Section 4.19. Advances to Subsidiaries.
All advances to Xxxxxxx-Xxxxx Group and Subsidiaries of the Company made by
the Company after the date of this Indenture shall be evidenced by intercompany
notes in favor of the Company. These intercompany notes shall be subordinated to
the Guarantees and the First Mortgage Notes.
Section 4.20. Payments for Consent.
Xxxxxxx-Xxxxx Group and the Company shall not, and shall not permit any of
their Subsidiaries to, directly or indirectly, pay or cause to be paid any
consideration to or for the benefit of any Holder of First Mortgage Notes for or
as an inducement to any consent, waiver or amendment of any of the terms or
provisions of this Indenture or the First Mortgage Notes unless such
consideration is offered to be paid and is paid to all Holders of the First
Mortgage Notes that consent, waive or agree to amend in the time frame set forth
in the solicitation documents relating to such consent, waiver or agreement.
Section 4.21. Additional Guarantees.
If the Company or any of its Subsidiaries acquires or creates another
Restricted Subsidiary after the date of this Indenture, then that newly acquired
or created Restricted Subsidiary must become a Guarantor and execute a
supplemental indenture, a form of which is attached as Exhibit E hereto, and
deliver an Opinion of Counsel to the Trustee within 10 Business Days of the date
on which it was acquired or created. Notwithstanding the foregoing, in the event
the Company or any of its Subsidiaries acquires or creates a Restricted
Subsidiary which is organized under the laws of a jurisdiction other than the
United States or a political subdivision thereof, and if the issuance of a
Guarantee by such Restricted Subsidiary would result in the imposition of a tax
or similar governmental charge, such foreign Restricted Subsidiary shall not be
required to be a Guarantor. The form of such Guarantee is attached as Exhibit D
hereto.
Section 4.22. Master Conveyance Agreement
The Trustee, as Collateral Agent for and on behalf of the Holders of the
First Mortgage Notes, the Company and IMC Global have entered into the Master
Conveyance Agreement. In connection therewith, on or before September 15, 1999,
the Company shall deliver to the Trustee an Officer's Certificate which shall
certify (i) which parcels of real property listed on Schedule 1 to the Master
Conveyance Agreement have been conveyed to one of the IMC Operating Companies
(as defined in the Master Conveyance Agreement) or a Subsidiary thereof and the
entity to which each parcel was so conveyed, (ii) which parcels listed on
Schedule 1 to the Master Conveyance Agreement have not been properly conveyed,
(iii) which parcels of real property listed on Schedule 2 to the Master
Conveyance Agreement have been conveyed to one of the Special Purpose Restricted
Subsidiaries, (iv) which parcels listed on Schedule 2 to the Master Conveyance
Agreement have not been properly conveyed, (v) that no Default or Event of
Default exists with respect to the Indenture, and (vi) all of the parcels listed
in clauses (i) and (iii) above have been transferred to one of the Special
Purpose Restricted Subsidiaries and (vii) that indemnity proceeds from the
Master Conveyance Agreement shall be applied as set forth below. Purchaser shall
also attach to the Officer's Certificate a valuation report prepared in
accordance with paragraph 5 of the Master Conveyance Agreement entitled
"Seller's Indemnification" for those parcels listed in clauses (ii) and (iv)
above. Any indemnity proceeds received by the Company or the Trustee as
collateral agent under the Master Conveyance Agreement from IMC Global or the
Company shall be applied or invested as provided for in the second and third
paragraphs of Section 4.10; however, if the aggregate amount of indemnity
proceeds exceeds $5.0 million, the Company will make an Asset Sale Offer
pursuant to the provisions of Section 4.10.
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ARTICLE 5.
SUCCESSORS
Section 5.01. Merger, Consolidation, or Sale of Assets.
Xxxxxxx-Xxxxx Group and the Company may not, directly or indirectly (a)
consolidate or merge with or into another Person (whether or not Xxxxxxx-Xxxxx
Group or the Company is the surviving corporation) or (b) sell, assign,
transfer, convey or otherwise dispose of all or substantially all of the
properties or assets of the Company and its Restricted Subsidiaries taken as a
whole, in one or more related transactions, to another Person, unless in the
case of each of Xxxxxxx-Xxxxx Group and the Company, (i) either (A)
Xxxxxxx-Xxxxx Group or the Company is the surviving corporation or (B) the
Person formed by or surviving any such consolidation or merger (if other than
Xxxxxxx-Xxxxx Group or the Company) or to which such sale, assignment, transfer,
conveyance or other disposition shall have been made is a corporation organized
or existing under the laws of the United States, any state thereof or the
District of Columbia, (ii) the Person formed by or surviving any such
consolidation or merger (if other than Xxxxxxx-Xxxxx Group or the Company) or
the Person to which such sale, assignment, transfer, conveyance or other
disposition shall have been made assumes all the obligations of Xxxxxxx-Xxxxx
Group or the Company under the First Mortgage Notes, this Indenture and the
Registration Rights Agreement pursuant to agreements reasonably satisfactory to
the Trustee, (iii) immediately after such transaction no Default or Event of
Default exists and (iv) Xxxxxxx-Xxxxx Group or the Company or the Person formed
by or surviving any such consolidation or merger (if other than Xxxxxxx-Xxxxx
Group or the Company), or to which such sale, assignment, transfer, conveyance
or other disposition shall have been made (A) will have Consolidated Net Worth
immediately after the transaction equal to or greater than the Consolidated Net
Worth of Xxxxxxx-Xxxxx Group or the Company immediately preceding the
transaction and (B) will, on the date of such transaction after giving pro forma
effect thereto and any related financing transactions as if the same had
occurred at the beginning of the applicable four-quarter period, be permitted to
incur at least $1.00 of additional Indebtedness pursuant to the Fixed Charge
Coverage Ratio test set forth in the first paragraph of Section 4.09 hereof.
In addition, Xxxxxxx-Xxxxx Group and the Company may not, directly or
indirectly, lease all or substantially all of its properties or assets, in one
or more related transactions, to any other Person. This Section 5.01 shall not
apply to a sale, assignment, transfer, conveyance or other disposition of assets
between or among Xxxxxxx-Xxxxx Group, the Company and any of its Wholly Owned
Subsidiaries and any of the Guarantors.
Section 5.02. Successor Corporation Substituted.
Upon any consolidation or merger, or any sale, assignment, transfer, lease,
conveyance or other disposition of all or substantially all of the assets of the
Company in accordance with Section 5.01 hereof, the successor corporation formed
by such consolidation or into or with which the Company is merged or to which
such sale, assignment, transfer, lease, conveyance or other disposition is made
shall succeed to, and be substituted for (so that from and after the date of
such consolidation, merger, sale, 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 Company shall not be relieved from the obligation to pay the
principal of and interest on the First Mortgage Notes except in the case of a
sale of all of the Company's assets that meets the requirements of Section 5.01
hereof.
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ARTICLE 6.
DEFAULTS AND REMEDIES
Section 6.01. Events of Default.
An "Event of Default" occurs if:
(a) the Company defaults in the payment when due of interest on, or
Liquidated Damages with respect to, the First Mortgage Notes and such default
continues for a period of 30 days;
(b) the Company defaults in the payment when due of principal of or
premium, if any, on the First Mortgage Notes when the same becomes due and
payable at maturity, upon redemption (including in connection with an offer to
purchase) or otherwise;
(c) the Company or any of its Restricted Subsidiaries fails to comply with
any of the provisions of Section 4.07, 4.09, 4.10, 4.15, 4.16, 4.22 or 5.01
hereof;
(d) the Company or any of its Restricted Subsidiaries fails to observe or
perform any other covenant, representation, warranty or other agreement in this
Indenture, the First Mortgage Notes or the Security Agreements for 60 days after
notice to the Company by the Trustee or the Holders of at least 25% in aggregate
principal amount of the First Mortgage Notes (including Additional First
Mortgage Notes, if any) then outstanding voting as a single class;
(e) a default occurs under any mortgage, indenture or instrument under
which there may be issued or by which there may be secured or evidenced any
Indebtedness for money borrowed by the Company or any of its Restricted
Subsidiaries (or the payment of which is guaranteed by the Company or any of its
Restricted Subsidiaries), whether such Indebtedness or guarantee now exists, or
is created after the date of this Indenture, which default is caused by a
failure to pay principal of, or interest or premium, if any, on such
Indebtedness prior to the expiration of the grace period provided in such
Indebtedness on the date of such default (a "Payment Default") or results in the
acceleration of such Indebtedness prior to its express maturity and, in each
case, the principal amount of such Indebtedness, together with the principal
amount of any other such Indebtedness under which there has been a Payment
Default or the maturity of which has been so accelerated, aggregates $10.0
million or more;
(f) a final judgment or final judgments for the payment of money are
entered by a court or courts of competent jurisdiction against the Company or
any Restricted Subsidiary that is a Significant Subsidiary or any group of
Restricted Subsidiaries that, taken as a whole, would constitute a Significant
Subsidiary and such judgment or judgments remain undischarged for a period
(during which execution shall not be effectively stayed) of 60 days, provided
that the aggregate of all such undischarged judgments exceeds $10.0 million;
(g) the Company or any Restricted Subsidiary that is a Significant
Subsidiary or any group of Restricted Subsidiaries that, taken as a whole, would
constitute a Significant Subsidiary pursuant to or within the meaning of
Bankruptcy Law:
(i) commences a voluntary case,
(ii) consents to the entry of an order for relief against it in an
involuntary case,
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(iii) consents to the appointment of a custodian of it or for all or
substantially all of its property,
(iv) makes a general assignment for the benefit of its creditors, or
(v) generally is not paying its debts as they become due; or
(h) a court of competent jurisdiction enters an order or decree under any
Bankruptcy Law that:
(i) is for relief against the Company or any Restricted Subsidiary
that is a Significant Subsidiary or any group of Restricted Subsidiaries
that, taken as a whole, would constitute a Significant Subsidiary in an
involuntary case;
(ii) appoints a custodian of the Company or any Restricted Subsidiary
that is a Significant Subsidiary or any group of Restricted Subsidiaries
that, taken as a whole, would constitute a Significant Subsidiary or for
all or substantially all of the property of the Company or any Restricted
Subsidiary that is a Significant Subsidiary or any group of Restricted
Subsidiaries that, taken as a whole, would constitute a Significant
Subsidiary; or
(iii) orders the liquidation of the Company or any Restricted
Subsidiary that is a Significant Subsidiary or any group of Restricted
Subsidiaries that, taken as a whole, would constitute a Significant
Subsidiary;
and the order or decree remains unstayed and in effect for 60 consecutive days;
or
(i) the Company or any Restricted Subsidiary shall breach any material
representation, warranty or agreement set forth in the Security Agreements or
repudiate any obligations under the Security Agreements or the Security
Agreements shall be held in any judicial proceeding to be unenforceable or
invalid or shall cease for any reason to be in full force and effect.
(j) except as permitted by this Indenture, any Guarantee is held in any
judicial proceeding to be unenforceable or invalid or shall cease for any reason
to be in full force and effect or any Guarantor, or any Person acting on behalf
of any Guarantor, shall deny or disaffirm its obligations under such Guarantor's
Guarantee.
Section 6.02. Acceleration.
If any Event of Default (other than an Event of Default specified in clause
(g) or (h) of Section 6.01 hereof with respect to the Company, any Restricted
Subsidiary that is a Significant Subsidiary or any group of Restricted
Significant Subsidiaries that, taken as a whole, would constitute a Significant
Subsidiary) occurs and is continuing, the Trustee or the Holders of at least 25%
in principal amount of the then outstanding First Mortgage Notes may declare all
the First Mortgage Notes to be due and payable immediately. Upon any such
declaration, the First Mortgage Notes shall become due and payable immediately.
Notwithstanding the foregoing, if an Event of Default specified in clause (g) or
(h) of Section 6.01 hereof occurs with respect to the Company, any Restricted
Subsidiary that is a Significant Subsidiary or any group of Restricted
Subsidiaries that, taken as a whole, would constitute a Significant Subsidiary,
all outstanding First Mortgage Notes shall be due and payable immediately
without further action or notice. The Holders of a majority in aggregate
principal amount of the then outstanding First Mortgage Notes by written notice
to the Trustee may on behalf of all of the Holders rescind an acceleration and
its consequences if the rescission would not conflict with any judgment or
decree and if all existing Events of Default (except nonpayment of principal,
57
interest (or Liquidated Damages) or premium that has become due solely because
of the acceleration) have been cured or waived.
If an Event of Default occurs on or after April 1, 2004 by reason of any
willful action (or inaction) taken (or not taken) by or on behalf of the Company
with the intention of avoiding payment of the premium that the Company would
have had to pay if the Company then had elected to redeem the First Mortgage
Notes pursuant to Section 3.07 hereof, then, upon acceleration of the First
Mortgage Notes, an equivalent premium shall also become and be immediately due
and payable, to the extent permitted by law, anything in this Indenture or in
the First Mortgage Notes to the contrary notwithstanding. If an Event of Default
occurs prior to April 1, 2004 by reason of any willful action (or inaction)
taken (or not taken) by or on behalf of the Company with the intention of
avoiding the prohibition on redemption of the First Mortgage Notes prior to such
date, then, upon acceleration of the First Mortgage Notes, an additional premium
shall also become and be immediately due and payable in an amount, for each of
the years beginning on April 1 of the years set forth below, as set forth below
(expressed as a percentage of the principal amount of the First Mortgage Notes
on the date of payment that would otherwise be due but for the provisions of
this sentence):
Year Percentage
---- ----------
1999.................................................. 110.250%
2000.................................................. 109.225%
2001.................................................. 108.200%
2002.................................................. 107.175%
2003.................................................. 106.150%
Section 6.03. Other Remedies.
If an Event of Default occurs and is continuing, the Trustee may pursue any
available remedy to collect the payment of principal, premium, if any, and
interest on the First Mortgage Notes or to enforce the performance of any
provision of the First Mortgage Notes or this Indenture.
The Trustee may maintain a proceeding even if it does not possess any of
the First Mortgage Notes or does not produce any of them in the proceeding. A
delay or omission by the Trustee or any Holder of a First Mortgage Note in
exercising any right or remedy accruing upon an Event of Default shall not
impair the right or remedy or constitute a waiver of or acquiescence in the
Event of Default. All remedies are cumulative to the extent permitted by law.
Section 6.04. Waiver of Past Defaults.
Holders of not less than a majority in aggregate principal amount of the
then outstanding First Mortgage Notes by notice to the Trustee may on behalf of
the Holders of all of the First Mortgage Notes waive an existing Default or
Event of Default and its consequences hereunder, except a continuing Default or
Event of Default in the payment of the principal of, premium and Liquidated
Damages, if any, or interest on, the First Mortgage Notes (including in
connection with an offer to purchase) (provided, however, that the Holders of a
majority in aggregate principal amount of the then outstanding First Mortgage
Notes may rescind an acceleration and its consequences, including any related
payment default that resulted from such acceleration). Upon any such waiver,
such Default shall cease to exist, and any Event of Default arising therefrom
shall be deemed to have been cured for every purpose of this Indenture; but no
such waiver shall extend to any subsequent or other Default or impair any right
consequent thereon.
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Section 6.05. Control by Majority.
Holders of a majority in principal amount of the then outstanding First
Mortgage Notes may direct the time, method and place of conducting any
proceeding for exercising any remedy available to the Trustee or exercising any
trust or power conferred on it. However, the Trustee may refuse to follow any
direction that conflicts with law or this Indenture that the Trustee determines
may be unduly prejudicial to the rights of other Holders of First Mortgage Notes
or that may involve the Trustee in personal liability. The Trustee may also
withhold from Holders of the First Mortgage Notes notice of any continuing
Default or Event of Default (except a Default or Event of Default relating to
the payment of principal or interest (or Liquidated Damages)) if it determines
that withholding notice is in their interest.
Section 6.06. Limitation on Suits.
A Holder of a First Mortgage Note may pursue a remedy with respect to this
Indenture or the First Mortgage Notes only if:
(a) the Holder of a First Mortgage Note gives to the Trustee written notice
of a continuing Event of Default;
(b) the Holders of at least 25% in principal amount of the then outstanding
First Mortgage Notes make a written request to the Trustee to pursue the remedy;
(c) such Holder of a First Mortgage Note or Holders of First Mortgage 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 then outstanding First Mortgage Notes do not give the Trustee a direction
inconsistent with the request.
A Holder of a First Mortgage Note may not use this Indenture to prejudice
the rights of another Holder of a First Mortgage Note or to obtain a preference
or priority over another Holder of a First Mortgage Note.
Section 6.07. Rights of Holders of First Mortgage Notes to Receive Payment.
Notwithstanding any other provision of this Indenture, the right of any
Holder of a First Mortgage Note to receive payment of principal, premium and
Liquidated Damages, if any, and interest on the First Mortgage Note, on or after
the respective due dates expressed in the First Mortgage Note (including in
connection with an offer to purchase), or to bring suit for the enforcement of
any such payment on or after such respective dates, shall not be impaired or
affected without the consent of such Holder.
Section 6.08. Collection Suit by Trustee.
If an Event of Default specified in Section 6.01(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 or any Guarantor for the whole
amount of principal of, premium and Liquidated Damages, if any, and interest
remaining unpaid on the First Mortgage 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
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reasonable compensation, expenses, disbursements and advances of the Trustee,
its agents and counsel.
Section 6.09. Trustee May File Proofs of Claim.
The Trustee is authorized to file such proofs of claim and other papers or
documents as may be necessary or advisable in order to have the claims of the
Trustee (including any claim for the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel) and the
Holders of the First Mortgage Notes allowed in any judicial proceedings relative
to the Company (or any other obligor upon the First Mortgage Notes), its
creditors or its property and shall be entitled and empowered to collect,
receive and distribute any money or other property payable or deliverable on any
such claims and any custodian in any such judicial proceeding is hereby
authorized by each Holder to make such payments to the Trustee, and in the event
that the Trustee shall consent to the making of such payments directly to the
Holders, to pay to the Trustee any amount due to it for the reasonable
compensation, expenses, disbursements and advances of the Trustee, its agents
and counsel, and any other amounts due the Trustee under Section 7.07 hereof. To
the extent that the payment of any such compensation, expenses, disbursements
and advances of the Trustee, its agents and counsel, and any other amounts due
the Trustee under Section 7.07 hereof out of the estate in any such proceeding,
shall be denied for any reason, payment of the same shall be secured by a Lien
on, and shall be paid out of, any and all distributions, dividends, money,
securities and other properties that the Holders may be entitled to receive in
such proceeding whether in liquidation or under any plan of reorganization or
arrangement or otherwise. Nothing herein contained shall be deemed to authorize
the Trustee to authorize or consent to or accept or adopt on behalf of any
Holder any plan of reorganization, arrangement, adjustment or composition
affecting the First Mortgage Notes or the rights of any Holder, or to authorize
the Trustee to vote in respect of the claim of any Holder in any such
proceeding.
Section 6.10. Priorities.
If the Trustee collects any money pursuant to this Article, it shall pay
out the money in the following order:
First: to the Trustee, its agents and attorneys for amounts due under
Section 7.07 hereof, including payment of all compensation, expense and
liabilities incurred, and all advances made, by the Trustee and the costs
and expenses of collection;
Second: to Holders of First Mortgage Notes for amounts due and unpaid
on the First Mortgage Notes for principal, premium and Liquidated Damages,
if any, and interest, ratably, without preference or priority of any kind,
according to the amounts due and payable on the First Mortgage Notes for
principal, premium and Liquidated Damages, if any and interest,
respectively; and
Third: to the Company or to such party as a court of competent
jurisdiction shall direct.
The Trustee may fix a record date and payment date for any payment to
Holders of First Mortgage Notes pursuant to this Section 6.10.
Section 6.11. Undertaking for Costs.
In any suit for the enforcement of any right or remedy under this Indenture
or in any suit against the Trustee for any action taken or omitted by it as a
Trustee, a court in its discretion may require the filing by any party litigant
in the suit of an undertaking to pay the costs of the suit, and the court in its
discretion may assess reasonable costs, including reasonable attorneys' fees,
against any party litigant in the suit, having due regard to the merits and good
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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 First Mortgage Note
pursuant to Section 6.07 hereof, or a suit by Holders of more than 10% in
principal amount of the then outstanding First Mortgage Notes.
ARTICLE 7.
TRUSTEE
Section 7.01. Duties of Trustee.
(a) If an Event of Default has occurred and is continuing, the Trustee
shall exercise such of the rights and powers vested in it by this Indenture, and
use the same degree of care and skill in its exercise, as a prudent person would
exercise or use under the circumstances in the conduct of such person's own
affairs.
(b) Except during the continuance of an Event of Default:
(i) the duties of the Trustee shall be determined solely by the
express provisions of this Indenture and the Trustee need perform only
those duties that are specifically set forth in this Indenture and no
others, and no implied covenants or obligations shall be read into this
Indenture against the Trustee; and
(ii) in the absence of bad faith on its part, the Trustee may
conclusively rely, as to the truth of the statements and the correctness of
the opinions expressed therein, upon certificates or opinions furnished to
the Trustee and conforming to the requirements of this Indenture. However,
the Trustee shall examine the certificates and opinions to determine
whether or not they conform to the requirements of this Indenture.
(c) The Trustee may not be relieved from liabilities for its own negligent
action, its own negligent failure to act, 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 6.05 hereof.
(d) Whether or not therein expressly so provided, every provision of this
Indenture that in any way relates to the Trustee is subject to paragraphs (a),
(b), and (c) of this Section.
(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.
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(f) The Trustee shall not be liable for interest on any money received by
it except as the Trustee may agree in writing with the Company. Money held in
trust by the Trustee need not be segregated from other funds except to the
extent required by law.
Section 7.02. Rights of Trustee.
(a) The Trustee may conclusively 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 shall
be full and complete authorization and protection from liability in respect of
any action taken, suffered or omitted by it hereunder in good faith and in
reliance thereon.
(c) The Trustee may act through its attorneys and agents and shall not be
responsible for the misconduct or negligence of any agent appointed with due
care.
(d) The Trustee shall not be liable for any action it takes or omits to
take in good faith that it believes to be authorized or within the rights or
powers conferred upon it by this Indenture.
(e) Unless otherwise specifically provided in this Indenture, any demand,
request, direction or notice from the Company shall be sufficient if signed by
an Officer of the Company.
(f) The Trustee shall be under no obligation to exercise any of the rights
or powers vested in 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.
Section 7.03. Individual Rights of Trustee.
The Trustee in its individual or any other capacity may become the owner or
pledgee of First Mortgage Notes and may otherwise deal with the Company or any
Affiliate of the Company with the same rights it would have if it were not
Trustee. However, in the event that the Trustee acquires any conflicting
interest it must eliminate such conflict within 90 days, apply to the SEC for
permission to continue as trustee or resign. Any Agent may do the same with like
rights and duties. The Trustee is also subject to Sections 7.10 and 7.11 hereof.
Section 7.04. Trustee's Disclaimer.
The Trustee shall not be responsible for and makes no representation as to
the validity or adequacy of this Indenture or the First Mortgage Notes, it shall
not be accountable for the Company's use of the proceeds from the First Mortgage
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 First Mortgage Notes or any other document in connection with
the sale of the First Mortgage Notes or pursuant to this Indenture other than
its certificate of authentication.
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Section 7.05. Notice of Defaults.
If a Default or Event of Default occurs and is continuing and if it is
known to the Trustee, the Trustee shall mail to Holders of First Mortgage 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 First Mortgage Note, the Trustee may
withhold the notice if and so long as a committee of its Responsible Officers in
good faith determines that withholding the notice is in the interests of the
Holders of the First Mortgage Notes.
Section 7.06. Reports by Trustee to Holders of the First Mortgage Notes.
Within 60 days after each May 15 beginning with the May 15 following the
date of this Indenture, and for so long as First Mortgage Notes remain
outstanding, the Trustee shall mail to the Holders of the First Mortgage 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)(2). 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 First
Mortgage Notes shall be mailed to the Company and filed with the SEC and each
stock exchange on which the First Mortgage Notes are listed in accordance with
TIA ss. 313(d). The Company shall promptly notify the Trustee when the First
Mortgage Notes are listed on any stock exchange.
Section 7.07. Compensation and Indemnity.
The Company shall pay to the Trustee from time to time reasonable
compensation for its acceptance of this Indenture and services hereunder. The
Trustee's compensation shall not be limited by any law on compensation of a
trustee of an express trust. The Company shall reimburse the Trustee promptly
upon request for all reasonable disbursements, advances and expenses incurred or
made by it in addition to the compensation for its services. Such expenses shall
include the reasonable compensation, disbursements and expenses of the Trustee's
agents and counsel.
The Company shall indemnify the Trustee against any and all losses,
liabilities or expenses incurred by it arising out of or in connection with the
acceptance or administration of its duties under this Indenture, including the
costs and expenses of enforcing this Indenture against the Company (including
this Section 7.07) and defending itself against any claim (whether asserted by
the Company or any Holder or any other person) or liability in connection with
the exercise or performance of any of its powers or duties hereunder, except to
the extent any such loss, liability or expense may be attributable to its
negligence or 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 7.07 shall survive the
satisfaction and discharge of this Indenture.
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To secure the Company's payment obligations in this Section, the Trustee
shall have a Lien prior to the First Mortgage Notes on all money or property
held or collected by the Trustee, except that held in trust to pay principal and
interest on particular First Mortgage Notes. Such Lien shall survive the
satisfaction and discharge of this Indenture.
When the Trustee incurs expenses or renders services after an Event of
Default specified in Section 6.01(g) or (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
Bankruptcy Law.
The Trustee shall comply with the provisions of TIA ss.313(b)(2) to the
extent applicable.
Section 7.08. Replacement of Trustee.
A resignation or removal of the Trustee and appointment of a successor
Trustee shall become effective only upon the successor Trustee's acceptance of
appointment as provided in this Section.
The Trustee may resign in writing at any time and be discharged from the
trust hereby created by so notifying the Company. The Holders of a majority in
principal amount of the then outstanding First Mortgage Notes may remove the
Trustee by so notifying the Trustee and the Company in writing. The Company may
remove the Trustee if:
(a) the Trustee fails to comply with Section 7.10 hereof;
(b) the Trustee is adjudged a bankrupt or an insolvent or an order for
relief is entered with respect to the Trustee under any Bankruptcy Law;
(c) a custodian or public officer takes charge of the Trustee or its
property; or
(d) the Trustee becomes incapable of acting.
If the Trustee resigns or is removed or if a vacancy exists in the office
of Trustee for any reason, the Company shall promptly appoint a successor
Trustee. Within one year after the successor Trustee takes office, the Holders
of a majority in principal amount of the then outstanding First Mortgage Notes
may appoint a successor Trustee to replace the successor Trustee appointed by
the Company.
If a successor Trustee does not take office within 60 days after the
retiring Trustee resigns or is removed, the retiring Trustee, the Company, or
the Holders of at least 10% in principal amount of the then outstanding First
Mortgage Notes may petition any court of competent jurisdiction for the
appointment of a successor Trustee.
If the Trustee, after written request by any Holder who has been a Holder
for at least six months, fails to comply with Section 7.10, such Holder may
petition any court of competent jurisdiction for the removal of the Trustee and
the appointment of a successor Trustee.
A successor Trustee shall deliver a written acceptance of its appointment
to the retiring Trustee and to the Company. Thereupon, the resignation or
removal of the retiring Trustee shall become effective, and the successor
Trustee shall have all the rights, powers and duties of the Trustee under this
Indenture. The successor Trustee shall mail a notice of its succession to
Holders. The retiring Trustee shall promptly transfer all property held by it as
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Trustee to the successor Trustee, provided all sums owing to the Trustee
hereunder have been paid and subject to the Lien provided for in Section 7.07
hereof. Notwithstanding replacement of the Trustee pursuant to this Section
7.08, the Company's obligations under Section 7.07 hereof shall continue for the
benefit of the retiring Trustee.
Section 7.09. Successor Trustee by Xxxxxx, etc.
If the Trustee consolidates, merges or converts into, or transfers all or
substantially all of its corporate trust business to, another corporation, the
successor corporation without any further act shall be the successor Trustee.
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 million
as set forth in its most recent published annual report of condition.
This Indenture shall always have a Trustee who satisfies the requirements
of TIA ss.310(a)(1), (2) and (5). The Trustee is subject to TIA ss.310(b).
Section 7.11. Preferential Collection of Claims Against 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.
LEGAL DEFEASANCE AND COVENANT DEFEASANCE
Section 8.01. Option to Effect Legal Defeasance or Covenant Defeasance.
The Company may, at the option of its Board of Directors evidenced by a
resolution set forth in an Officers' Certificate, at any time, elect to have
either Section 8.02 or 8.03 hereof be applied to all outstanding First Mortgage
Notes upon compliance with the conditions set forth below in this Article Eight.
Section 8.02. Legal Defeasance and Discharge.
Upon the Company's exercise under Section 8.01 hereof of the option
applicable to this Section 8.02, the Company shall, subject to the satisfaction
of the conditions set forth in Section 8.04 hereof, be deemed to have been
discharged from its obligations with respect to all outstanding First Mortgage
Notes and the Guarantors shall be deemed to have been discharged from their
obligations with respect to their Guarantees on the date the conditions set
forth below are satisfied (hereinafter, "Legal Defeasance"). For this purpose,
Legal Defeasance means that the Company shall be deemed to have paid and
discharged the entire Indebtedness represented by the outstanding First Mortgage
Notes, which shall thereafter be deemed to be "outstanding" only for the
purposes of Section 8.05 hereof and the other Sections of this Indenture
referred to in (a) and (b) below, and to have satisfied all its other
obligations under such First Mortgage Notes and this Indenture (and the Trustee,
on demand of and at the expense of the Company, shall execute proper instruments
acknowledging the same), and the Guarantors shall be deemed to have been
discharged from their obligation with respect to their Guarantees, except for
the following provisions which shall survive until otherwise terminated or
discharged hereunder: (a) the rights of Holders of outstanding First Mortgage
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Notes to receive solely from the trust fund described in Section 8.04 hereof,
and as more fully set forth in such Section, payments in respect of the
principal of, premium, if any, and interest (including Liquidated Damages) on
such First Mortgage Notes when such payments are due, (b) the Company's
obligations with respect to such First Mortgage Notes under Article 2 and
Section 4.02 hereof, (c) the rights, powers, trusts, duties and immunities of
the Trustee hereunder and the Company's obligations in connection therewith and
(d) this Article Eight. Subject to compliance with this Article Eight, the
Company may exercise its option under this Section 8.02 notwithstanding the
prior exercise of its option under Section 8.03 hereof.
Section 8.03. Covenant Defeasance.
Upon the Company's exercise under Section 8.01 hereof of the option
applicable to this Section 8.03, the Company and the Guarantors shall, subject
to the satisfaction of the conditions set forth in Section 8.04 hereof, be
released from its obligations under the covenants contained in Sections 4.07,
4.08, 4.09, 4.10, 4.11, 4.12, 4.13, 4.15, 4.16, 4.17, 4.18, 4.19, 4.20, 4.21 and
4.22 hereof and clause (iv) of Section 5.01 hereof with respect to the
outstanding First Mortgage Notes on and after the date the conditions set forth
in Section 8.04 are satisfied (hereinafter, "Covenant Defeasance"), and the
First Mortgage 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 First Mortgage Notes shall not be deemed outstanding for
accounting purposes). For this purpose, Covenant Defeasance means that, with
respect to the outstanding First Mortgage Notes, the Company may omit to comply
with and shall have no liability in respect of any term, condition or limitation
set forth in any such covenant, 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 6.01 hereof, but, except as specified above, the remainder of this
Indenture and such First Mortgage Notes shall be unaffected thereby. In
addition, upon the Company's exercise under Section 8.01 hereof of the option
applicable to this Section 8.03 hereof, subject to the satisfaction of the
conditions set forth in Section 8.04 hereof, Sections 6.01(c) through 6.01(f)
hereof shall not constitute Events of Default.
Section 8.04. Conditions to Legal or Covenant Defeasance.
The following shall be the conditions to the application of either Section
8.02 or 8.03 hereof to the outstanding First Mortgage Notes:
In order to exercise either Legal Defeasance or Covenant Defeasance:
(a) the Company must irrevocably deposit with the Trustee, in trust, for
the benefit of the Holders, cash in United States dollars, non-callable
Government Securities, or a combination thereof, in such amounts as will be
sufficient, in the opinion of a nationally recognized firm of independent public
accountants, to pay the principal of, premium and Liquidated Damages, if any,
and interest on the outstanding First Mortgage Notes on the stated date for
payment thereof or on the applicable redemption date, as the case may be, and
the Company must specify whether the First Mortgage Notes are being defeased to
maturity or to a particular redemption date;
(b) in the case of an election under Section 8.02 hereof, the Company shall
have delivered to the Trustee an Opinion of Counsel in the United States
reasonably acceptable to the Trustee confirming that (A) the Company has
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received from, or there has been published by, the Internal Revenue Service a
ruling or (B) since the date of this Indenture, there has been a change in the
applicable federal income tax law, in either case to the effect that, and based
thereon such Opinion of Counsel shall confirm that, the Holders of the
outstanding First Mortgage Notes will not recognize income, gain or loss for
federal income tax purposes as a result of such Legal Defeasance and will be
subject to federal income tax on the same amounts, in the same manner and at the
same times as would have been the case if such Legal Defeasance had not
occurred;
(c) in the case of an election under Section 8.03 hereof, the Company shall
have delivered to the Trustee an Opinion of Counsel in the United States
reasonably acceptable to the Trustee confirming that the Holders of the
outstanding First Mortgage Notes will not recognize income, gain or loss for
federal income tax purposes as a result of such Covenant Defeasance and will be
subject to federal income tax on the same amounts, in the same manner and at the
same times as would have been the case if such Covenant Defeasance had not
occurred;
(d) no Default or Event of Default shall have occurred and be continuing on
the date of such deposit (other than a Default or Event of Default resulting
from the incurrence of Indebtedness all or a portion of the proceeds of which
will be used to defease the First Mortgage Notes pursuant to this Article Eight
concurrently with such incurrence) or insofar as Sections 6.01(g) or 6.01(h)
hereof is concerned, at any time in the period ending on the 91st day after the
date of deposit;
(e) such Legal Defeasance or Covenant Defeasance shall not result in a
breach or violation of, or constitute a default under, any material agreement or
instrument (other than this Indenture) to which the Company or any of its
Subsidiaries is a party or by which the Company or any of its Subsidiaries is
bound;
(f) the Company shall have delivered to the Trustee an Opinion of Counsel
(which may be subject to customary exceptions) to the effect that, assuming no
intervening bankruptcy of the Company or any Guarantor between the date of
deposit and the 91st day following the deposit and assuming that no Holder is an
"insider" of the Company under applicable bankruptcy law, after 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;
(g) the Company shall have delivered to the Trustee an Officers'
Certificate stating that the deposit was not made by the Company with the intent
of preferring the Holders over any other creditors of the Company or with the
intent of defeating, hindering, delaying or defrauding any other creditors of
the Company or others; and
(h) the Company shall have delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that all conditions
precedent provided for or relating to the Legal Defeasance or the Covenant
Defeasance have been complied with.
Section 8.05. Deposited Money and Government Securities to be Held in Trust;
Other Miscellaneous Provisions.
Subject to Section 8.06 hereof, all money and non-callable Government
Securities (including the proceeds thereof) deposited with the Trustee (or other
qualifying trustee, collectively for purposes of this Section 8.05, the
"Trustee") pursuant to Section 8.04 hereof in respect of the outstanding First
Mortgage Notes shall be held in trust and applied by the Trustee, in accordance
with the provisions of such First Mortgage Notes and this Indenture, to the
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payment, either directly or through any Paying Agent (including the Company
acting as Paying Agent) as the Trustee may determine, to the Holders of such
First Mortgage Notes of all sums due and to become due thereon in respect of
principal, premium, if any, and interest, but such money need not be segregated
from other funds except to the extent required by law.
The Company shall pay and indemnify the Trustee against any tax, fee or
other charge imposed on or assessed against the cash or non-callable Government
Securities deposited pursuant to Section 8.04 hereof or the principal and
interest received in respect thereof other than any such tax, fee or other
charge which by law is for the account of the Holders of the outstanding First
Mortgage Notes
Anything in this Article Eight to the contrary notwithstanding, the Trustee
shall deliver or pay to the Company from time to time upon the request of the
Company any money or non-callable Government Securities held by it as provided
in Section 8.04 hereof which, in the opinion of a nationally recognized firm of
independent public accountants expressed in a written certification thereof
delivered to the Trustee (which may be the opinion delivered under Section
8.04(a) hereof), are in excess of the amount thereof that would then be required
to be deposited to effect an equivalent Legal Defeasance or Covenant Defeasance.
Section 8.06. Repayment to Company.
Any money deposited with the Trustee or any Paying Agent, or then held by
the Company, in trust for the payment of the principal of, premium, if any, or
interest on any First Mortgage Note and remaining unclaimed for one year after
such principal, and premium, if any, or interest has become due and payable
shall be paid to the Company on its request or (if then held by the Company)
shall be discharged from such trust; and the Holder of such First Mortgage Note
shall thereafter look only to the Company for payment thereof, and all liability
of the Trustee or such Paying Agent with respect to such trust money, and all
liability of the Company as trustee thereof, shall thereupon cease; provided,
however, that the Trustee or such Paying Agent, before being required to make
any such repayment, may at the expense of the Company cause to be published
once, in the New York Times and The Wall Street Journal (national edition),
notice that such money remains unclaimed and that, after a date specified
therein, which shall not be less than 30 days from the date of such notification
or publication, any unclaimed balance of such money then remaining will be
repaid to the Company.
Section 8.07. Reinstatement.
If the Trustee or Paying Agent is unable to apply any United States dollars
or non-callable Government Securities in accordance with Section 8.02 or 8.03
hereof, as the case may be, by reason of any order or judgment of any court or
governmental authority enjoining, restraining or otherwise prohibiting such
application, then the Company's obligations under this Indenture and the First
Mortgage Notes shall be revived and reinstated as though no deposit had occurred
pursuant to Section 8.02 or 8.03 hereof until such time as the Trustee or Paying
Agent is permitted to apply all such money in accordance with Section 8.02 or
8.03 hereof, as the case may be; provided, however, that, if the Company makes
any payment of principal of, premium, if any, or interest on any First Mortgage
Note following the reinstatement of its obligations, the Company shall be
subrogated to the rights of the Holders of such First Mortgage Notes to receive
such payment from the money held by the Trustee or Paying Agent.
ARTICLE 9.
AMENDMENT, SUPPLEMENT AND WAIVER
Section 9.01. Without Consent of Holders of First Mortgage Notes.
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Notwithstanding Section 9.02 of this Indenture, the Company, the Guarantors
and the Trustee may amend or supplement this Indenture, the Guarantees or the
First Mortgage Notes without the consent of any Holder of a First Mortgage Note:
(a) to cure any ambiguity, defect or inconsistency;
(b) to provide for uncertificated First Mortgage Notes in addition to or in
place of certificated First Mortgage Notes or to alter the provisions of Article
2 hereof (including the related definitions) in a manner that does not
materially adversely affect any Holder;
(c) to provide for the assumption of the Company's or a Guarantor's
obligations to the Holders of the First Mortgage Notes by a successor to the
Company pursuant to Article 5 or Article 11 hereof;
(d) to make any change that would provide any additional rights or benefits
to the Holders of the First Mortgage Notes or that does not adversely affect the
legal rights hereunder of any Holder of the First Mortgage Note;
(e) to comply with requirements of the SEC in order to effect or maintain
the qualification of this Indenture under the TIA;
(f) to provide for the issuance of Additional First Mortgage Notes in
accordance with the limitations set forth in this Indenture as of the date
hereof; or
(g) to allow any Guarantor to execute a supplemental indenture and/or a
Guarantee with respect to the First Mortgage Notes.
Upon the request of the Company accompanied by a resolution of its Board of
Directors authorizing the execution of any such amended or supplemental
Indenture, and upon receipt by the Trustee of the documents described in Section
7.02 hereof, the Trustee shall join with the Company and the Guarantors 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 9.02. With Consent of Holders of First Mortgage Notes.
Except as provided below in this Section 9.02, the Company and the Trustee
may amend or supplement this Indenture (including Section 3.09, 4.10 and 4.15
hereof), the Guarantees and the First Mortgage Notes with the consent of the
Holders of at least a majority in principal amount of the First Mortgage Notes
(including Additional First Mortgage Notes, if any) then outstanding voting as a
single class (including, without limitation consents obtained in connection with
a tender offer or exchange offer for, or purchase of, the First Mortgage Notes),
and, subject to Sections 6.04 and 6.07 hereof, any existing Default or Event of
Default (other than a Default or Event of Default in the payment of the
principal of, premium, if any, or interest (including Liquidated Damages) on the
First Mortgage Notes, except a payment default resulting from an acceleration
that has been rescinded) or compliance with any provision of this Indenture, the
Guarantees or the First Mortgage Notes may be waived with the consent of the
Holders of a majority in principal amount of the then outstanding First Mortgage
Notes (including Additional First Mortgage Notes, if any) voting as a single
class (including, without limitation, consents obtained in connection with a
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tender offer or exchange offer for, or purchase of, the First Mortgage Notes).
Section 2.08 hereof shall determine which First Mortgage Notes are considered to
be "outstanding" for purposes of this Section 9.02.
The Collateral Agent and the Company can (i) amend the Security Agreements
or (ii) release any of the Collateral from a Lien of the Security Agreements
(except in accordance with the provisions thereof or as set forth in Section
10.3 hereof) only with the consent of holders of at least 75% in aggregate
principal amount of the outstanding First Mortgage Notes.
Upon the request of the Company accompanied by a resolution of its Board of
Directors authorizing the execution of any such amended or supplemental
Indenture, and upon the filing with the Trustee of evidence satisfactory to the
Trustee of the consent of the Holders of First Mortgage Notes as aforesaid, and
upon receipt by the Trustee of the documents described in Section 7.02 hereof,
the Trustee shall join with the Company in the execution of such amended or
supplemental Indenture unless such amended or supplemental Indenture directly
affects the Trustee's own rights, duties or immunities under this Indenture or
otherwise, in which case the Trustee may in its discretion, but shall not be
obligated to, enter into such amended or supplemental Indenture.
It shall not be necessary for the consent of the Holders of First Mortgage
Notes under this Section 9.02 to approve the particular form of any proposed
amendment or waiver, but it shall be sufficient if such consent approves the
substance thereof.
After an amendment, supplement or waiver under this Section becomes
effective, the Company shall mail to the Holders of First Mortgage 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 6.04 and 6.07 hereof,
the Holders of a majority in aggregate principal amount of the First Mortgage
Notes (including Additional First Mortgage Notes, if any) then outstanding
voting as a single class may waive compliance in a particular instance by the
Company with any provision of this Indenture or the First Mortgage Notes.
However, without the consent of each Holder affected, an amendment or waiver
under this Section 9.02 may not (with respect to any First Mortgage Notes held
by a non-consenting Holder):
(a) reduce the principal amount of First Mortgage Notes whose Holders must
consent to an amendment, supplement or waiver;
(b) reduce the principal of or change the fixed maturity of any First
Mortgage Note or alter or waive any of the provisions with respect to the
redemption of the First Mortgage Notes except as provided above with respect to
Sections 3.09, 4.10 and 4.15 hereof;
(c) reduce the rate of or change the time for payment of interest,
including default interest, on any First Mortgage Note;
(d) waive a Default or Event of Default in the payment of principal of or
premium, if any, or interest (or Liquidated Damages) on the First Mortgage Notes
(except a rescission of acceleration of the First Mortgage Notes by the Holders
of at least a majority in aggregate principal amount of the then outstanding
First Mortgage Notes (including Additional First Mortgage Notes, if any) and a
waiver of the payment default that resulted from such acceleration);
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(e) make any First Mortgage Note payable in money other than that stated in
the First Mortgage Notes;
(f) make any change in the provisions of this Indenture relating to waivers
of past Defaults or the rights of Holders of First Mortgage Notes to receive
payments of principal of or interest (or Liquidated Damages) or premium, if any,
on the First Mortgage Notes;
(g) waive a redemption payment with respect to any First Mortgage Note
(other than a payment required by Sections 4.10, 4.15 and 4.16 hereof);
(h) make any change in Section 6.04 or 6.07 hereof or in the foregoing
amendment and waiver provisions; or
(i) release any Guarantor from any of its obligations under its Guarantee
or this Indenture, except in accordance with the terms of this Indenture.
Section 9.03. Compliance with Trust Indenture Act.
Every amendment or supplement to this Indenture or the First Mortgage Notes
shall be set forth in a amended or supplemental Indenture that complies with the
TIA as then in effect.
Section 9.04. Revocation and Effect of Consents.
Until an amendment, supplement or waiver becomes effective, a consent to it
by a Holder of a First Mortgage Note is a continuing consent by the Holder of a
First Mortgage Note and every subsequent Holder of a First Mortgage Note or
portion of a First Mortgage Note that evidences the same debt as the consenting
Holder's First Mortgage Note, even if notation of the consent is not made on any
First Mortgage Note. However, any such Holder of a First Mortgage Note or
subsequent Holder of a First Mortgage Note may revoke the consent as to its
First Mortgage Note if the Trustee receives written notice of revocation before
the date the waiver, supplement or amendment becomes effective. An amendment,
supplement or waiver becomes effective in accordance with its terms and
thereafter binds every Holder.
Section 9.05. Notation on or Exchange of First Mortgage Notes.
The Trustee may place an appropriate notation about an amendment,
supplement or waiver on any First Mortgage Note thereafter authenticated. The
Company in exchange for all First Mortgage Notes may issue and the Trustee
shall, upon receipt of an Authentication Order, authenticate new First Mortgage
Notes that reflect the amendment, supplement or waiver.
Failure to make the appropriate notation or issue a new First Mortgage Note
shall not affect the validity and effect of such amendment, supplement or
waiver.
Section 9.06. Trustee to Sign Amendments, etc.
The Trustee shall sign any amended or supplemental Indenture authorized
pursuant to this Article Nine if the amendment or supplement does not adversely
affect the rights, duties, liabilities or immunities of the Trustee. The Company
may not sign an amendment or supplemental Indenture until the Board of Directors
approves it. In executing any amended or supplemental indenture, the Trustee
shall be entitled to receive and (subject to Section 7.01 hereof) shall be fully
protected in relying upon, in addition to the documents required by Section
11.04 hereof, an Officer's Certificate and an Opinion of Counsel stating that
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the execution of such amended or supplemental indenture is authorized or
permitted by this Indenture.
ARTICLE 10.
COLLATERAL AND SECURITY
Section 10.01. Security Agreements.
The due and punctual payment of the principal of and interest and
Liquidated Damages, if any, on the First Mortgage Notes when and as the same
shall be due and payable, whether on an interest payment date, at maturity, by
acceleration, repurchase, redemption or otherwise, and interest on the overdue
principal of and interest and Liquidated Damages (to the extent permitted by
law), if any, on the First Mortgage Notes and performance of all other
obligations of the Company and the Guarantors to the Holders of First Mortgage
Notes or the Trustee under this Indenture and the First Mortgage Notes,
according to the terms hereunder or thereunder, shall be secured as provided in
the Security Agreements and the Guarantees which the Company and the Guarantors
have entered into simultaneously with the execution of this Indenture and which
is attached as Exhibit G hereto. Each Holder of First Mortgage Notes, by its
acceptance thereof, consents and agrees to the terms of the Security Agreements
(including, without limitation, the provisions providing for foreclosure and
release of Collateral) as the same may be in effect or may be amended from time
to time in accordance with its terms and authorizes and directs the Collateral
Agent to enter into the Security Agreements and to perform its obligations and
exercise its rights thereunder in accordance therewith. The Company and the
Guarantors shall deliver to the Trustee, in its capacity as both Trustee and
Collateral Agent, all documents required pursuant to the Security Agreements,
and shall do or cause to be done all such acts and things as may be necessary or
proper, or as may be required by the provisions of the Security Agreements, to
assure and confirm to the Trustee, in its capacity as both Trustee and
Collateral Agent, the security interest in the Collateral contemplated hereby,
by the Security Agreements or any part thereof, as from time to time
constituted, so as to render the same available for the security and benefit of
this Indenture and of the First Mortgage Notes secured hereby, according to the
intent and purposes herein expressed. The Company and the Guarantors shall take,
or shall cause its Subsidiaries to take, upon request of the Trustee, any and
all actions reasonably required to cause the Security Agreements to create and
maintain, as security for the Obligations of the Company and the Guarantors
hereunder, a valid and enforceable perfected first priority Lien in and on all
the Collateral, in favor of the Collateral Agent for the benefit of the Holders
of First Mortgage Notes, superior to and prior to the rights of all third
Persons and subject to no other Liens than Permitted Liens.
Section 10.02. Recording and Opinions.
(a) The Company shall furnish to the Trustee simultaneously with the
execution and delivery of this Indenture an Opinion of Counsel either (i)
stating that in the opinion of such counsel all action has been taken with
respect to the recording, registering and filing of this Indenture, the
Mortgages, financing statements or other instruments necessary to make effective
the Lien intended to be created by the Security Agreements, and reciting with
respect to the security interests in the Collateral, the details of such action,
or (ii) stating that, in the opinion of such counsel, no such action is
necessary to make such Lien effective.
(b) The Company shall furnish to the Trustee, in its capacity as both
Trustee and Collateral Agent, on April 1 in each year beginning with April 1,
2000, an Opinion of Counsel, dated as of such date, either (i) (A) stating that,
in the opinion of such counsel, action has been taken with respect to the
recording, registering, filing, re-recording, re-registering and refiling of all
supplemental indentures, financing statements, continuation statements or other
instruments of further assurance as is necessary to maintain the Lien of the
Security Agreements and reciting with respect to the security interests in the
Collateral the details of such action or referring to prior Opinions of Counsel
in which such details are given, (B) stating that, based on relevant laws as in
effect on the date of such Opinion of Counsel, all financing statements and
continuation statements have been executed and filed that are necessary as of
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such date and during the succeeding 12 months fully to preserve and protect, to
the extent such protection and preservation are possible by filing, the rights
of the Holders of First Mortgage Notes and the Collateral Agent and the Trustee
hereunder and under the Security Agreements with respect to the security
interests in the Collateral, or (ii) stating that, in the opinion of such
counsel, no such action is necessary to maintain such Lien and assignment.
(c) The Company shall otherwise comply with the provisions of TIA
ss.314(b).
Section 10.03. Release of Collateral.
(a) Subject to subsections (b), (c) and (d) of this Section 10.03, the
Nitrogen Facility referred to in Section 4.16 hereof may be released without
substitution of collateral from the Lien and security interest created by the
Security Agreements if an offer is made to repurchase the First Mortgage Notes
from the cash proceeds of the sale of the Nitrogen Facility in accordance with
the provisions of the Security Agreements or as provided hereby. In addition,
upon the request of the Company pursuant to an Officers' Certificate certifying
that all conditions precedent hereunder have been met (at the sole cost and
expense of the Company) the Collateral Agent shall release (i) the Nitrogen
Facility that is sold, conveyed or disposed of in compliance with the provisions
of this Indenture; provided, that the Company shall apply the Net Proceeds in
accordance with Section 4.16 hereof. Upon receipt of such Officers' Certificate
the Collateral Agent shall execute, deliver or acknowledge any necessary or
proper instruments of termination, satisfaction or release to evidence the
release of the Nitrogen Facility permitted to be released pursuant to this
Indenture or the Security Agreements.
(b) No Collateral shall be released from the Lien and security interest
created by the Security Agreements pursuant to the provisions of the Security
Agreements unless there shall have been delivered to the Collateral Agent the
Officer's Certificate required by this Section 10.03.
(c) At any time when a Default or Event of Default shall have occurred and
be continuing and the maturity of the First Mortgage Notes shall have been
accelerated (whether by declaration or otherwise) and the Trustee shall have
delivered a notice of acceleration to the Collateral Agent, no release of the
Nitrogen Facility pursuant to the provisions of the Security Agreements shall be
effective as against the Holders of First Mortgage Notes.
(d) The release of the Nitrogen Facility from the terms of this Indenture
and the Security Agreements shall not be deemed to impair the security under
this Indenture in contravention of the provisions hereof if and to the extent
the Nitrogen Facility is released pursuant to the terms of the Security
Agreements. To the extent applicable, the Company shall cause TIA ss.313(b),
relating to reports, and TIA ss.314(d), relating to the release of property or
securities from the Lien and security interest of the Security Agreements, to be
complied with. Any certificate or opinion required by TIA ss.314(d) may be made
by an Officer of the Company except in cases where TIA ss.314(d) requires that
such certificate or opinion be made by an independent Person, which Person shall
be an independent engineer, appraiser or other expert selected or approved by
the Trustee, in his capacity as both Trustee and Collateral Agent, in the
exercise of reasonable care.
Section 10.04. Certificates of the Company.
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The Company shall furnish to the Trustee and the Collateral Agent, prior
to each proposed release of the Nitrogen Facility pursuant to the Security
Agreements, (i) all documents required by TIA ss.314(d) and (ii) an Opinion of
Counsel, which may be rendered by internal counsel to the Company, to the effect
that such accompanying documents constitute all documents required by TIA
ss.314(d). The Trustee may, to the extent permitted by Sections 7.01 and 7.02
hereof, accept as conclusive evidence of compliance with the foregoing
provisions the appropriate statements contained in such documents and such
Opinion of Counsel.
Section 10.05. Certificates of the Trustee.
In the event that the Company wishes to release the Nitrogen Facility in
accordance with the Security Agreements and has delivered the certificates and
documents required by the Security Agreements and Sections 10.03 and 10.04
hereof, the Trustee shall determine whether it has received all documentation
required by TIA ss.314(d) in connection with such release and, based on such
determination and the Opinion of Counsel delivered pursuant to Section 10.04(b),
shall deliver a certificate to the Collateral Agent setting forth such
determination.
Section 10.06. Authorization of Actions to Be Taken by the Trustee Under the
Security Agreements.
Subject to the provisions of Section 7.01 and 7.02 hereof, the Trustee may,
in its sole discretion and without the consent of the Holders of First Mortgage
Notes, direct, on behalf of the Holders of First Mortgage Notes, the Collateral
Agent to, take all actions it deems necessary or appropriate in order to (a)
enforce any of the terms of the Security Agreements and (b) collect and receive
any and all amounts payable in respect of the Obligations of the Company
hereunder. The Trustee shall have power to institute and maintain such suits and
proceedings as it may deem expedient to prevent any impairment of the Collateral
by any acts that may be unlawful or in violation of the Security Agreements or
this Indenture, and such suits and proceedings as the Trustee may deem expedient
to preserve or protect its interests and the interests of the Holders of First
Mortgage Notes in the Collateral (including power to institute and maintain
suits or proceedings to restrain the enforcement of or compliance with any
legislative or other governmental enactment, rule or order that may be
unconstitutional or otherwise invalid if the enforcement of, or compliance with,
such enactment, rule or order would impair the security interest hereunder or be
prejudicial to the interests of the Holders of First Mortgage Notes or of the
Trustee). The Collateral Agent shall determine the circumstances and manner in
which the Collateral shall be disposed of, including, but not limited to, the
determination of whether to release all or any portion of the Nitrogen Facility
from the liens created by the Security Agreements and whether to foreclose on
the Collateral following an Event of Default and a declaration of acceleration
of the First Mortgage Notes.
Section 10.07. Authorization of Receipt of Funds by the Trustee Under the
Security Agreements.
The Trustee is authorized to receive any funds for the benefit of the
Holders of First Mortgage Notes distributed under the Security Agreements, and
to make further distributions of such funds to the Holders of First Mortgage
Notes according to the provisions of this Indenture.
Section 10.08. Impact of Event of Default
So long as no Event of Default shall have occurred and be continuing, and
subject to certain terms and conditions, the Company and its Subsidiaries shall
be entitled to exercise any voting and other consensual rights pertaining to the
Collateral pledged by them.
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Upon the occurrence and during the continuance of an Event of Default and a
declaration of an acceleration of the First Mortgage Notes (1) and following
written notice from the Collateral Agent all rights of the Company to exercise
such voting and other consensual rights shall cease, and all such rights shall
become vested in the Collateral Agent, which, to the extent permitted by law,
shall have the sole right to exercise such voting and other consensual rights,
(2) all rights of the Company to receive any cash dividends, interest and other
payments made upon or with respect to the Collateral will cease and such cash
dividends, interest and other payments will be paid to the Collateral Agent and
(3) the Collateral Agent may sell the Collateral or any part thereof in
accordance with the terms of the Security Agreements. All funds distributed
under the Security Agreements and received by the Collateral Agent for the
benefit of the Holders of the First Mortgage Notes will be distributed by the
Collateral Agent in accordance with the provisions of this Indenture.
Section 10.09. Termination of Security Interest.
Upon the full and final payment and performance of all Obligations of the
Company under this Indenture and the First Mortgage Notes, and of the Guarantors
under this Indenture and the Guarantees, or upon Legal Defeasance, the Trustee
shall, at the request of the Company, deliver a certificate to the Collateral
Agent stating that such Obligations have been paid in full, and instruct the
Collateral Agent to release the Liens pursuant to this Indenture and the
Security Agreements. The Security Agreements shall thereafter be terminated.
ARTICLE 11.
GUARANTEES
Section 11.01. Guarantee.
Subject to this Article 11, each of the Guarantors hereby, jointly and
severally, unconditionally guarantees to each Holder of a First Mortgage Note
authenticated and delivered by the Trustee and to the Trustee and its successors
and assigns, irrespective of the validity and enforceability of this Indenture,
the First Mortgage Notes or the obligations of the Company hereunder or
thereunder, that: (a) the principal of and interest on the First Mortgage Notes
will be promptly paid in full when due, whether at maturity, by acceleration,
redemption or otherwise, and interest (including Liquidated Damages) on the
overdue principal of and interest on the First Mortgage Notes, if any, if
lawful, and all other obligations of the Company to the Holders or the Trustee
hereunder or thereunder will be promptly paid in full or performed, all in
accordance with the terms hereof and thereof; and (b) in case of any extension
of time of payment or renewal of any First Mortgage Notes or any of such other
obligations, that same will be promptly paid in full when due or performed in
accordance with the terms of the extension or renewal, whether at stated
maturity, by acceleration or otherwise. Failing payment when due of any amount
so guaranteed or any performance so guaranteed for whatever reason, the
Guarantors shall be jointly and severally obligated to pay the same immediately.
Each Guarantor agrees that this is a guarantee of payment and not a guarantee of
collection.
The Guarantors hereby agree that their obligations hereunder shall be
unconditional, irrespective of the validity, regularity or enforceability of the
First Mortgage Notes or this Indenture, the absence of any action to enforce the
same, any waiver or consent by any Holder of the First Mortgage Notes with
respect to any provisions hereof or thereof, the recovery of any judgment
against the Company, any action to enforce the same or any other circumstance
which might otherwise constitute a legal or equitable discharge or defense of a
guarantor. Each Guarantor hereby waives diligence, presentment, demand of
payment, filing of claims with a court in the event of insolvency or bankruptcy
75
of the Company, any right to require a proceeding first against the Company,
protest, notice and all demands whatsoever and covenant that this Guarantee
shall not be discharged except by complete performance of the obligations
contained in the First Mortgage Notes and this Indenture.
If any Holder or the Trustee is required by any court or otherwise to
return to the Company, the Guarantors or any custodian, trustee, liquidator or
other similar official acting in relation to either the Company or the
Guarantors, any amount paid by either to the Trustee or such Holder, this
Guarantee, to the extent theretofore discharged, shall be reinstated in full
force and effect.
Each Guarantor agrees that it shall not be entitled to any right of
subrogation in relation to the Holders in respect of any obligations guaranteed
hereby until payment in full of all obligations guaranteed hereby. Each
Guarantor further agrees that, as between the Guarantors, on the one hand, and
the Holders and the Trustee, on the other hand, (x) the maturity of the
obligations guaranteed hereby may be accelerated as provided in Article 6 hereof
for the purposes of this Guarantee, notwithstanding any stay, injunction or
other prohibition preventing such acceleration in respect of the obligations
guaranteed hereby, and (y) in the event of any declaration of acceleration of
such obligations as provided in Article 6 hereof, such obligations (whether or
not due and payable) shall forthwith become due and payable by the Guarantors
for the purpose of this Guarantee. The Guarantors shall have the right to seek
contribution from any non-paying Guarantor so long as the exercise of such right
does not impair the rights of the Holders under the Guarantee.
Section 11.02. Limitation on Guarantor Liability.
Each Guarantor, and by its acceptance of First Mortgage Notes, each Holder,
hereby confirms that it is the intention of all such parties that the Guarantee
of such Guarantor not constitute a fraudulent transfer or conveyance for
purposes of Bankruptcy Law, the Uniform Fraudulent Conveyance Act, the Uniform
Fraudulent Transfer Act or any similar federal or state law to the extent
applicable to any Guarantee. To effectuate the foregoing intention, the Trustee,
the Holders and the Guarantors hereby irrevocably agree that the obligations of
such Guarantor will, after giving effect to such maximum amount and all other
contingent and fixed liabilities of such Guarantor that are relevant under such
laws, and after giving effect to any collections from, rights to receive
contribution from or payments made by or on behalf of any other Guarantor in
respect of the obligations of such other Guarantor under this Article 10, result
in the obligations of such Guarantor under its Guarantee not constituting a
fraudulent transfer or conveyance.
Section 11.03. Execution and Delivery of Guarantee.
To evidence its Guarantee set forth in Section 11.01, each Guarantor hereby
agrees that a notation of such Guarantee substantially in the form included in
Exhibit D shall be endorsed by an Officer of such Guarantor on each First
Mortgage Note authenticated and delivered by the Trustee and that this Indenture
shall be executed on behalf of such Guarantor by its President or one of its
Vice Presidents.
Each Guarantor hereby agrees that its Guarantee set forth in Section 11.01
shall remain in full force and effect notwithstanding any failure to endorse on
each First Mortgage Note a notation of such Guarantee.
If an Officer whose signature is on this Indenture or on the Guarantee no
longer holds that office at the time the Trustee authenticates the First
Mortgage Note on which a Guarantee is endorsed, the Guarantee shall be valid
nevertheless.
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The delivery of any First Mortgage Note by the Trustee, after the
authentication thereof hereunder, shall constitute due delivery of the Guarantee
set forth in this Indenture on behalf of the Guarantors.
In the event that the Company creates or acquires any new Subsidiaries
subsequent to the date of this Indenture, if required by Section 4.21 hereof,
the Company shall cause such Subsidiaries to execute supplemental indentures to
this Indenture and Guarantees in accordance with Section 4.21 hereof and this
Article 11, to the extent applicable.
Section 11.04. Guarantors May Consolidate, etc., on Certain Terms.
Except as otherwise provided in Section 11.05, no Guarantor may sell or
otherwise dispose of all or substantially all of its assets to, or consolidate
with or merge with or into (whether or not such Guarantor is the surviving
Person) another Person, other than the Company or another Guarantor, unless (a)
subject to Section 11.05 hereof, either the Person acquiring the property in any
such sale or disposition or the Person formed by or surviving any such
consolidation or merger (if other than a Guarantor or the Company)
unconditionally assumes all the obligations of such Guarantor, pursuant to a
supplemental indenture in form and substance reasonably satisfactory to the
Trustee, under the First Mortgage Notes, this Indenture, the Guarantee and the
Registration Rights Agreement on the terms set forth herein or therein or the
Net Proceeds of such sale or other disposition are applied in accordance with
Section 4.10 hereof; and (b) immediately after giving effect to such
transaction, no Default or Event of Default exists.
In case of any such consolidation, merger, sale or conveyance and upon the
assumption by the successor Person, by supplemental indenture, executed and
delivered to the Trustee and satisfactory in form to the Trustee, of the
Guarantee endorsed upon the First Mortgage Notes and the due and punctual
performance of all of the covenants and conditions of this Indenture to be
performed by the Guarantor, such successor Person shall succeed to and be
substituted for the Guarantor with the same effect as if it had been named
herein as a Guarantor. Such successor Person thereupon may cause to be signed
any or all of the Guarantees to be endorsed upon all of the First Mortgage Notes
issuable hereunder which theretofore shall not have been signed by the Company
and delivered to the Trustee. All the Guarantees so issued shall in all respects
have the same legal rank and benefit under this Indenture as the Guarantees
theretofore and thereafter issued in accordance with the terms of this Indenture
as though all of such Guarantees had been issued at the date of the execution
hereof.
Except as set forth in Articles 4 and 5 hereof, and notwithstanding clauses
(a) and (b) above, nothing contained in this Indenture or in any of the First
Mortgage Notes shall prevent any consolidation or merger of a Guarantor with or
into the Company or another Guarantor, or shall prevent any sale or conveyance
of the property of a Guarantor as an entirety or substantially as an entirety to
the Company or another Guarantor.
Section 11.05. Releases Following Sale of Assets.
In the event (i) the Company designates any Restricted Subsidiary that is a
Guarantor as an Unrestricted Subsidiary, or (ii) of a sale or other disposition
of all or substantially all of the assets of any Guarantor, by way of merger,
consolidation or otherwise, or a sale or other disposition of all to the capital
stock of any Guarantor, in each case to a Person that is not (either before or
after giving effect to such transactions) a Restricted Subsidiary of the
Company; provided that the Net Proceeds of such sale or other disposition are
applied in accordance with the applicable provisions of this Indenture,
including without limitation Section 4.10 hereof, then such Guarantor (in the
event of a sale or other disposition, by way of merger, consolidation or
otherwise, of all of the capital stock of such Guarantor) or the corporation
77
acquiring the property (in the event of a sale or other disposition of all or
substantially all of the assets of such Guarantor) will be released and relieved
of any obligations under its Guarantee. Upon delivery by the Company to the
Trustee of an Officers' Certificate and an Opinion of Counsel to the effect that
such sale or other disposition was made by the Company in accordance with the
provisions of this Indenture, including without limitation Section 4.10 hereof,
the Trustee shall execute any documents reasonably required in order to evidence
the release of any Guarantor from its obligations under its Guarantee.
Any Guarantor not released from its obligations under its Guarantee shall
remain liable for the full amount of principal of and interest on the First
Mortgage Notes and for the other obligations of any Guarantor under this
Indenture as provided in this Article 11.
ARTICLE 12.
MISCELLANEOUS
Section 12.01. Trust Indenture Act Controls.
If any provision of this Indenture limits, qualifies or conflicts with the
duties imposed by TIA ss.318(c), the imposed duties shall control.
Section 12.02. Notices.
Any notice or communication by the Company, any Guarantor or the Trustee to
the others is duly given if in writing and delivered in Person or mailed by
first class mail (registered or certified, return receipt requested), telex,
telecopier or overnight air courier guaranteeing next day delivery, to the
others' address:
If to the Company and/or any Guarantor:
Xxxxxxx-Xxxxx, Inc.
00 Xxxxxxxxxxx Xxxxx - Xxxxx 0000
Xxx Xxxx, Xxx Xxxx 00000
Telecopier No.: (000) 000-0000
Attention: Xxxxxxx X. Xxxxxxx, Xx.
With a copy to:
Dechert Price & Xxxxxx
4000 Bell Atlantic Tower
0000 Xxxx Xxxxxx
Xxxxxxxxxxxx, XX 00000-0000
Telecopier No.: (000) 000-0000
Attention: Xxxxx X. Xxxxxxxx
If to the Trustee:
United States Trust Company of New York
Corporate Trust Division
000 Xxxx 00xx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Telecopier No.: (000) 000-0000/6
Attention: Xxxxx X. Xxxxx
78
The Company, any Guarantor or the Trustee, by notice to the others may
designate additional or different addresses for subsequent notices or
communications.
All notices and communications (other than those sent to Holders) shall be
deemed to have been duly given: at the time delivered by hand, if personally
delivered; five Business Days after being deposited in the mail, postage
prepaid, if mailed; when answered back, if telexed; when receipt acknowledged,
if telecopied; and the next Business Day after timely delivery to the courier,
if sent by overnight air courier guaranteeing next day delivery (except that
notice to the Trustee shall not be deemed to have been given until actually
received by the Trustee).
Any notice or communication to a Holder shall be mailed by first class
mail, certified or registered, return receipt requested, or by overnight air
courier guaranteeing next day delivery to its address shown on the register kept
by the Registrar. Any notice or communication shall also be so mailed to any
Person described in TIA ss.313(c), to the extent required by the TIA. Failure
to mail a notice or communication to a Holder or any defect in it shall not
affect its sufficiency with respect to other Holders.
If a notice or communication is mailed in the manner provided above within
the time prescribed, it is duly given, whether or not the addressee receives it.
If the Company mails a notice or communication to Holders, it shall mail a
copy to the Trustee and each Agent at the same time.
Section 12.03. Communication by Holders of First Mortgage Notes with Other
Holders of First Mortgage Notes.
Holders may communicate pursuant to TIA ss.312(b) with other Holders with
respect to their rights under this Indenture or the First Mortgage Notes. The
Company, the Guarantors, the Trustee, the Registrar and anyone else shall have
the protection of TIA ss.312(c).
Section 12.04. Certificate and Opinion as to Conditions Precedent.
Upon any request or application by the Company and/or any Guarantor to the
Trustee to take any action under this Indenture, the Company and/or such
Guarantor shall furnish to the Trustee:
(a) an Officers' Certificate in form and substance reasonably satisfactory
to the Trustee (which shall include the statements set forth in Section 12.05
hereof) stating that, in the opinion of the signers, all conditions precedent
and covenants, if any, provided for in this Indenture relating to the proposed
action have been satisfied; and
(b) an Opinion of Counsel in form and substance reasonably satisfactory to
the Trustee (which shall include the statements set forth in Section 12.05
hereof) stating that, in the opinion of such counsel, all such conditions
precedent and covenants have been satisfied.
Section 12.05. Statements Required in Certificate or Opinion.
Each certificate or opinion with respect to compliance with a condition or
covenant provided for in this Indenture (other than a certificate provided
pursuant to TIA ss.314(a)(4)) shall comply with the provisions of TIA
ss.314(e) and shall include:
79
(a) a statement that the Person making such certificate or opinion has read
such covenant or condition;
(b) a brief statement as to the nature and scope of the examination or
investigation upon which the statements or opinions contained in such
certificate or opinion are based;
(c) a statement that, in the opinion of such Person, he or she has made
such examination or investigation as is necessary to enable him to express an
informed opinion as to whether or not such covenant or condition has been
satisfied; and
(d) a statement as to whether or not, in the opinion of such Person, such
condition or covenant has been satisfied.
Section 12.06. Rules by Trustee and Agents.
The Trustee may make reasonable rules for action by or at a meeting of
Holders. The Registrar or Paying Agent may make reasonable rules and set
reasonable requirements for its functions.
Section 12.07. No Personal Liability of Directors, Officers, Employees and
Stockholders.
No past, present or future director, officer, employee, incorporator or
stockholder of the Company or any Guarantor, as such, shall have any liability
for any obligations of the Company or such Guarantor under the First Mortgage
Notes, the Guarantees, this Indenture or for any claim based on, in respect of,
or by reason of, such obligations or their creation. Each Holder by accepting a
First Mortgage Note waives and releases all such liability. The waiver and
release are part of the consideration for issuance of the First Mortgage Notes.
Section 12.08. Governing Law.
THE INTERNAL LAW OF THE STATE OF NEW YORK SHALL GOVERN AND BE USED TO
CONSTRUE THIS INDENTURE, THE NOTES AND THE GUARANTEES WITHOUT GIVING EFFECT TO
APPLICABLE PRINCIPLES OF CONFLICTS OF LAW TO THE EXTENT THAT THE APPLICATION OF
THE LAWS OF ANOTHER JURISDICTION WOULD BE REQUIRED THEREBY.
Section 12.09. No Adverse Interpretation of Other Agreements.
This Indenture may not be used to interpret any other indenture, loan or
debt agreement of the Company or its Subsidiaries or of any other Person. Any
such indenture, loan or debt agreement may not be used to interpret this
Indenture.
Section 12.10. Successors.
All agreements of the Company in this Indenture and the First Mortgage
Notes shall bind its successors. All agreements of the Trustee in this Indenture
shall bind its successors. All agreements of each Guarantor in this Indenture
shall bind its successors, except as otherwise provided in Section 11.05.
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Section 12.11. Severability.
In case any provision in this Indenture or in the First Mortgage 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 12.12. Counterpart Originals.
The parties may sign any number of copies of this Indenture. Each signed
copy shall be an original, but all of them together represent the same
agreement.
Section 12.13. Table of Contents, Headings, etc.
The Table of Contents, Cross-Reference Table and Headings of the Articles
and Sections of this Indenture have been inserted for convenience of reference
only, are not to be considered a part of this Indenture and shall in no way
modify or restrict any of the terms or provisions hereof.
[Signatures on following page]
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SIGNATURES
Dated as of April 22, 1999
XXXXXXX-XXXXX, INC.
By: /s/ X. Xxxxxxx Xxxxxxxx
------------------------------------
Name: X. Xxxxxxx Xxxxxxxx
Title:
XXXXXXX-XXXXX GROUP, INC.
By: /s/ X. Xxxxxxx Xxxxxxxx
------------------------------------
Name: X. Xxxxxxx Xxxxxxxx
Title:
XXXXXXX-XXXXX REALTY LLC
XXXXXXX-XXXXX AGRIBUSINESS REALTY LLC
XXXXXXX-XXXXX XXXXXX'X REALTY LLC
XXXXXXX-XXXXX NITROGEN REALTY LLC
XXXXXXX-XXXXX RESOURCES LLC
By: /s/ X. Xxxxxxx Xxxxxxxx
------------------------------------
Name: X. Xxxxxxx Xxxxxxxx
Title:
IMC AGRIBUSINESS INC.
XXXXXX'X XX SERVICES, INC.
IMC NITROGEN COMPANY
By: /s/ X. Xxxxxxx Xxxxxxxx
------------------------------------
Name: X. Xxxxxxx Xxxxxxxx
Title:
Attest:
-----------------------------
Name:
Title:
UNITED STATES TRUST COMPANY OF NEW YORK
By: /s/ Xxxxx X. Xxxxx
------------------------------------
Name: Xxxxx X. Xxxxx
Title: Vice-President
Attest:
-----------------------------
Authorized Signatory
Date:
82
EXHIBIT A-1
[Face of Note]
CUSIP/CINS
----------
10 1/4% First Mortgage Notes due 2009
No. 1 $
----------
XXXXXXX-XXXXX, INC.
promises to pay to
-------------------------------------------------------------
or registered assigns,
the principal sum of
-----------------------------------------------------------
Dollars on
Interest Payment Dates:
Record Dates:
Dated:
XXXXXXX-XXXXX, INC.
By:
------------------------------------
Name:
Title:
By:
------------------------------------
Name:
Title:
(SEAL)
This is one of the Global Notes referred to
in the within-mentioned Indenture:
UNITED STATES TRUST COMPANY OF NEW YORK,
as Trustee
By:
--------------------------
Authorized Signatory
A-1-1
EXHIBIT A-1
[Back of Note]
10 1/4% First Mortgage Notes due 2009
THIS GLOBAL NOTE IS HELD BY THE DEPOSITARY (AS DEFINED IN THE INDENTURE
GOVERNING THIS NOTE) OR ITS NOMINEE IN CUSTODY FOR THE BENEFIT OF THE BENEFICIAL
OWNERS HEREOF, AND IS NOT TRANSFERABLE TO ANY PERSON UNDER ANY CIRCUMSTANCES
EXCEPT THAT (I) THE TRUSTEE MAY MAKE SUCH NOTATIONS HEREON AS MAY BE REQUIRED
PURSUANT TO SECTION 2.07 OF THE INDENTURE, (II) THIS GLOBAL NOTE MAY BE
EXCHANGED IN WHOLE BUT NOT IN PART PURSUANT TO SECTION 2.06(a) OF THE INDENTURE,
(III) THIS GLOBAL NOTE MAY BE DELIVERED TO THE TRUSTEE FOR CANCELLATION PURSUANT
TO SECTION 2.11 OF THE INDENTURE AND (IV) THIS GLOBAL NOTE MAY BE TRANSFERRED TO
A SUCCESSOR DEPOSITARY WITH THE PRIOR WRITTEN CONSENT OF THE COMPANY.
THIS FIRST MORTGAGE 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 NEXT SENTENCE. BY ITS ACQUISITION HEREOF OR OF A BENEFICIAL
INTEREST HEREIN, THE HOLDER: (1) REPRESENT THAT (A) IT IS A "QUALIFIED
INSTITUTIONAL BUYER" (AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT) (A
"QIB") OR (B) IT HAS ACQUIRED THIS FIRST MORTGAGE NOTE IN AN OFFSHORE
TRANSACTION IN COMPLIANCE WITH REGULATION S UNDER THE SECURITIES ACT, (2) AGREES
THAT IT WILL NOT RESELL OR OTHERWISE TRANSFER THIS FIRST MORTGAGE 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 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 FIRST MORTGAGE NOTE OR AN INTEREST HEREIN IS
TRANSFERRED A NOTICE SUBSTANTIALLY TO THE EFFECT OF THIS LEGEND.
Capitalized terms used herein shall have the meanings assigned to them in
the Indenture referred to below unless otherwise indicated.
1. INTEREST. Xxxxxxx-Xxxxx, Inc., a Delaware corporation (the "Company"),
promises to pay interest on the principal amount of this Note at 10 1/4% per
annum from October 1, 1999 until maturity and shall pay the Liquidated Damages
payable pursuant to Section 5 of the Registration Rights Agreement referred to
below. The Company will pay interest and Liquidated Damages semi-annually in
arrears on April 1 and October 1 of each year, or if any such day is not a
Business Day, on the next succeeding Business Day (each an "Interest Payment
Date"). Interest on the Notes will accrue from the most recent date to which
interest has been paid or, if no interest has been paid, from the date of
issuance; provided that
A-1-2
if there is no existing Default in the payment of interest, and if this Note is
authenticated between a record date referred to on the face hereof and the next
succeeding Interest Payment Date, interest shall accrue from such next
succeeding Interest Payment Date; provided, further, that the first Interest
Payment Date shall be October 1, 1999. The Company shall pay interest (including
post-petition interest in any proceeding under any Bankruptcy Law) on overdue
principal and premium, if any, from time to time on demand at a rate that is 1%
per annum in excess of the rate then in effect; it shall pay interest (including
post-petition interest in any proceeding under any Bankruptcy Law) on overdue
installments of interest and Liquidated Damages (without regard to any
applicable grace periods) from time to time on demand at the same rate to the
extent lawful. Interest will be computed on the basis of a 360-day year of
twelve 30-day months.
2. METHOD OF PAYMENT. The Company will pay interest on the Notes (except
defaulted interest) and Liquidated Damages to the Persons who are registered
Holders of Notes at the close of business on the March 15 or September 15 next
preceding the Interest Payment Date, even if such Notes are canceled after such
record date and on or before such Interest Payment Date, except as provided in
Section 2.12 of the Indenture with respect to defaulted interest. The Notes will
be payable as to principal, premium and Liquidated Damages, if any, and interest
at the office or agency of the Company maintained for such purpose within or
without the City and State of New York, or, at the option of the Company,
payment of interest and Liquidated Damages may be made by check mailed to the
Holders at their addresses set forth in the register of Holders, and provided
that payment by wire transfer of immediately available funds will be required
with respect to principal of and interest, premium and Liquidated Damages on,
all Global Notes and all other Notes the Holders of which shall have provided
wire transfer instructions to the Company or the Paying Agent. Such payment
shall be in such coin or currency of the United States of America as at the time
of payment is legal tender for payment of public and private debts.
3. PAYING AGENT AND REGISTRAR. Initially, United States Trust Company of
New York, the Trustee under the Indenture, will act as Paying Agent and
Registrar. The Company may change any Paying Agent or Registrar without notice
to any Holder. The Company or any of its Subsidiaries may act in any such
capacity.
4. INDENTURE AND SECURITY AGREEMENTS. The Company issued the Notes under an
Indenture dated as of April 22, 1999 ("Indenture") among the Company, the
Guarantors and the Trustee. The terms of the Notes include those stated in the
Indenture and those made part of the Indenture by reference to the Trust
Indenture Act of 1939, as amended (15 U.S. Code xx.xx. 77aaa-77bbbb). The Notes
are subject to all such terms, and Holders are referred to the Indenture and
such Act for a statement of such terms. To the extent any provision of this Note
conflicts with the express provisions of the Indenture, the provisions of the
Indenture shall govern and be controlling. The Notes are secured obligations of
the Company limited to $210.0 million in aggregate principal amount. The Notes
are secured by a first priority security interest in the property, plant and
equipment and certain related assets of the Company and its subsidiaries,
constituting 17 of the principal granulation, seed production, processing and
nitrogen plants of the Company and its subsidiaries, and a pledge of all of the
equity interests of Xxxxxxx-Xxxxx Realty LLC, Xxxxxxx-Xxxxx AgriBusiness LLC,
Xxxxxxx-Xxxxx Nitrogen Realty LLC and Xxxxxxx-Xxxxx Xxxxxx'x Realty LLC, the
Company's Special Purpose Restricted Subsidiaries that own or will own
approximately 270 properties used in the Company's business, including
substantially all of the Farmarkets and other owned facilities, pursuant to the
Security Agreements referred to in the Indenture.
A-1-3
5. OPTIONAL REDEMPTION.
(a) Except as set forth in subparagraph (b) of this Paragraph 5, the
Company shall not have the option to redeem the Notes prior to April 1, 2004.
Thereafter, the Company shall have the option to redeem the Notes, in whole or
in part, upon not less than 30 nor more than 60 days' notice, at the redemption
prices (expressed as percentages of principal amount) set forth below plus
accrued and unpaid interest and Liquidated Damages thereon to the applicable
redemption date, if redeemed during the twelve-month period beginning on April 1
of the years indicated below:
Year Percentage
---- ----------
2004................................................... 105.125%
2005................................................... 103.417%
2006................................................... 101.708%
2007 and thereafter.................................... 100.000%
(b) Notwithstanding the provisions of subparagraph (a) of this Paragraph 5,
at any time prior to April 1, 2002, the Company may redeem Notes with the net
proceeds of one or more Public Equity Offerings at a redemption price equal to
110.250% of the aggregate principal amount, plus accrued and unpaid interest
(including Liquidated Damages) thereon, if any; provided that at least 65% in
aggregate principal amount of the Notes originally issued remain outstanding
immediately after the occurrence of such redemption and that such redemption
occurs within 45 days of the date of the closing of such Public Equity Offering.
6. MANDATORY REDEMPTION.
The Company is not required to make mandatory redemption or sinking fund
payments with respect to the Notes.
7. REPURCHASE AT OPTION OF HOLDER.
(a) If there is a Change of Control, the Company shall be required to make
an offer (a "Change of Control Offer") to repurchase all or any part (equal to
$1,000 or an integral multiple thereof) of each Holder's Notes at a purchase
price paid in cash equal to 101% of the aggregate principal amount thereof plus
accrued and unpaid interest and Liquidated Damages thereon, if any, to the date
of purchase (the "Change of Control Payment"). Within 10 days following any
Change of Control, the Company shall mail a notice to each Holder setting forth
the procedures governing the Change of Control Offer as required by the
Indenture.
(b) If the Company or a Restricted Subsidiary consummates any Asset Sales,
within five days of each date on which the aggregate amount of Excess Proceeds
exceeds $5.0 million, the Company shall commence an offer to all Holders of
Notes and all holders of other Indebtedness that is pari passu with the First
Mortgage Notes containing provisions similar to those set forth in the Indenture
with respect to offers to purchase or redeem with the proceeds of sales of
assets to purchase the maximum principal amount of First Mortgage Notes and such
other pari passu Indebtedness that may be purchased out of the Excess Proceeds,
(an "Asset Sale Offer") pursuant to Section 3.09 of the Indenture to purchase
the maximum principal amount of Notes (including any Additional Notes) that may
be purchased out of the Excess Proceeds at an offer price in cash in an amount
equal to 100% of the principal amount thereof plus accrued and unpaid interest
and Liquidated Damages thereon, if any, to the date of purchase, in accordance
with the
A-1-4
procedures set forth in the Indenture. To the extent that the aggregate amount
of Notes (including any Additional Notes) tendered pursuant to an Asset Sale
Offer is less than the Excess Proceeds, the Company may use such Excess Proceeds
for any purpose not otherwise prohibited by the Indenture. If the aggregate
principal amount of Notes surrendered by Holders thereof and such other pari
passu Indebtedness tendered into such Asset Sale Offer exceeds the amount of
Excess Proceeds, the Trustee shall select the Notes and such other pari passu
Indebtedness to be purchased on a pro rata basis based on the principal amount
of First Mortgage Notes and such other pari passu Indebtedness tendered. Holders
of Notes that are the subject of an offer to purchase will receive an Asset Sale
Offer from the Company prior to any related purchase date and may elect to have
such Notes purchased by completing the form entitled "Option of Holder to Elect
Purchase" on the reverse of the Notes.
8. NOTICE OF REDEMPTION. Notice of redemption will be mailed at least 30
days but not more than 60 days before the redemption date to each Holder whose
Notes are to be redeemed at its registered address. Notes in denominations
larger than $1,000 may be redeemed in part but only in whole multiples of
$1,000, unless all of the Notes held by a Holder are to be redeemed. On and
after the redemption date interest ceases to accrue on Notes or portions thereof
called for redemption.
9. DENOMINATIONS, TRANSFER, EXCHANGE. The Notes are in registered form
without coupons in denominations of $1,000 and integral multiples of $1,000. The
transfer of Notes may be registered and Notes may be exchanged as provided in
the Indenture. The Registrar and the Trustee may require a Holder, among other
things, to furnish appropriate endorsements and transfer documents and the
Company may require a Holder to pay any taxes and fees required by law or
permitted by the Indenture. The Company need not exchange or register the
transfer of any Note or portion of a Note selected for redemption, except for
the unredeemed portion of any Note being redeemed in part. Also, the Company
need not exchange or register the transfer of any Notes for a period of 15 days
before a selection of Notes to be redeemed or during the period between a record
date and the corresponding Interest Payment Date.
10. PERSONS DEEMED OWNERS. The registered Holder of a Note may be treated
as its owner for all purposes.
11. AMENDMENT, SUPPLEMENT AND WAIVER. Subject to certain exceptions, the
Indenture or the Notes may be amended or supplemented with the consent of the
Holders of at least a majority in principal amount of the then outstanding Notes
(including, without limitation, consents obtained in connection with a purchase
of, or tender offer for, Notes) and Additional Notes, if any, voting as a single
class, and any existing default or compliance with any provision of the
Indenture or the Notes may be waived with the consent of the Holders of a
majority in principal amount of the then outstanding Notes (including, without
limitation, consents obtained in connection with a purchase of, or tender offer
for, Notes) and Additional Notes, if any, voting as a single class. Without the
consent of any Holder of a Note, the Indenture or the Notes may be amended or
supplemented to cure any ambiguity, defect or inconsistency, to provide for
uncertificated Notes in addition to or in place of certificated Notes, to
provide for the assumption of the Company's obligations to Holders of the Notes
in case of a merger or consolidation or sale of all or substantially all of the
Company's assets, to make any change that would provide any additional rights or
benefits to the Holders of the Notes or that does not adversely affect the legal
rights under the Indenture of any such Holder or to comply with the requirements
of the SEC in order to effect or maintain the qualification of the Indenture
under the Trust Indenture Act.
12. DEFAULTS AND REMEDIES. Events of Default include: (i) default for 30
days in the payment when due of interest (including Liquidated Damages) on the
Notes; (ii) default in payment when due of the
A-1-5
principal of, or premium, if any, on the Notes when the same becomes due and
payable at maturity, upon redemption (including in connection with an offer to
purchase) or otherwise, (iii) failure by the Company or any of its Restricted
Subsidiaries to comply with Section 4.07, 4.09, 4.10, 4.15, 4.16, 4.22 or 5.01
of the Indenture; (iv) failure by the Company or any of its Restricted
Subsidiaries for 60 days after notice to the Company by the Trustee or the
Holders of at least 25% in principal amount of the Notes (including Additional
Notes, if any) then outstanding voting as a single class to comply with any of
the other agreements in the Indenture; (v) default under certain other
agreements relating to Indebtedness of the Company or any of its Restricted
Subsidiaries, which default results in the acceleration of such Indebtedness
prior to its express maturity or is caused by a failure to pay principal of, or
interest or premium, if any, on such Indebtedness prior to the expiration of the
grace period, and in each case, the principal amount of total Indebtedness
aggregates $10.0 million or more; (vi) certain final judgments against the
Company or any of its Restricted Subsidiaries for the payment of money
aggregating in excess of $10.0 million that remain undischarged for a period of
60 days; (vii) certain events of bankruptcy or insolvency with respect to the
Company or any of its Restricted Subsidiaries; (viii) the breach by the Company
or any Restricted Subsidiary of certain covenants in the Security Agreements,
repudiation by the Company or any Restricted Subsidiary of any obligations under
the Security Agreements or the Security Agreements shall be held in any judicial
proceeding to be unenforceable or invalid or shall cease for any reason to be in
full force and effect; and (ix) except as permitted by the Indenture, any
Guarantee shall be held in any judicial proceeding to be unenforceable or
invalid or shall cease for any reason to be in full force and effect or any
Guarantor or any Person acting on its behalf shall deny or disaffirm its
obligations under such Guarantor's Guarantee. If any Event of Default occurs and
is continuing, the Trustee or the Holders of at least 25% in principal amount of
the then outstanding Notes may declare all the Notes to be due and payable
immediately. Notwithstanding the foregoing, in the case of an Event of Default
arising from certain events of bankruptcy or insolvency, with respect to the
Company, any Restricted Subsidiary that is a Significant Subsidiary or any group
of Restricted Subsidiaries that, taken together, would constitute a Significant
Subsidiary, all outstanding Notes will become due and payable without further
action or notice. Holders may not enforce the Indenture or the Notes except as
provided in the Indenture. Subject to certain limitations, Holders of a majority
in principal amount of the then outstanding Notes may direct the Trustee in its
exercise of any trust or power. The Trustee may withhold from Holders of the
Notes notice of any continuing Default or Event of Default (except a Default or
Event of Default relating to the payment of principal or interest (or Liquidated
Damages)) if it determines that withholding notice is in their interest. The
Holders of a majority in aggregate principal amount of the Notes then
outstanding by notice to the Trustee may on behalf of the Holders of all of the
Notes waive any existing Default or Event of Default and its consequences under
the Indenture except a continuing Default or Event of Default in the payment of
interest (or Liquidated Damages) on, or the principal of, the Notes. The Company
is required to deliver to the Trustee annually a statement regarding compliance
with the Indenture, and the Company is required upon becoming aware of any
Default or Event of Default, to deliver to the Trustee a statement specifying
such Default or Event of Default.
13. TRUSTEE DEALINGS WITH COMPANY. If the Trustee becomes a creditor of the
Company or any Guarantor, the Indenture limits its right to obtain payment of
claims in certain cases, or to realize on certain property received in respect
of any such claim as security or otherwise. The Trustee will be permitted to
engage in other transactions; however, if it acquires any conflicting interest
it must eliminate such conflict within 90 days, apply to the Commission for
permission to continue, or resign.
14. NO RECOURSE AGAINST OTHERS. A director, officer, employee, incorporator
or stockholder, of the Company or any Guarantor, as such, shall not have any
liability for any obligations of the Company or the Guarantors under the Notes
or the Indenture, the Guarantees, or for any claim based on, in respect of,
A-1-6
or by reason of, such obligations or their creation. Each Holder by accepting a
Note waives and releases all such liability. The waiver and release are part of
the consideration for the issuance of the Notes.
15. AUTHENTICATION. This Note shall not be valid until authenticated by the
manual signature of the Trustee or an authenticating agent.
16. ABBREVIATIONS. Customary abbreviations may be used in the name of a
Holder or an assignee, such as: TEN COM (= tenants in common), TEN ENT (=
tenants by the entireties), JT TEN (= joint tenants with right of survivorship
and not as tenants in common), CUST (= Custodian), and U/G/M/A (= Uniform Gifts
to Minors Act).
17. ADDITIONAL RIGHTS OF HOLDERS OF RESTRICTED GLOBAL NOTES AND RESTRICTED
CERTIFICATED NOTES. In addition to the rights provided to Holders of Notes under
the Indenture, Holders of Restricted Global Notes and Restricted Certificated
Notes shall have all the rights set forth in the Registration Rights Agreement
dated as of April 22, 1999, between the Company and the parties named on the
signature pages thereof (the "Registration Rights Agreement").
18. CUSIP NUMBERS. Pursuant to a recommendation promulgated by the
Committee on Uniform Security Identification Procedures, the Company has caused
CUSIP numbers to be printed on the Notes and the Trustee may use CUSIP numbers
in notices of redemption as a convenience to Holders. No representation is made
as to the accuracy of such numbers either as printed on the Notes or as
contained in any notice of redemption and reliance may be placed only on the
other identification numbers placed thereon.
The Company will furnish to any Holder upon written request and without
charge a copy of the Indenture and/or the Registration Rights Agreement.
Requests may be made to:
Xxxxxxx-Xxxxx, Inc.
00 Xxxxxxxxxxx Xxxxx - Xxxxx 0000
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxx Xxxxx
A-1-7
ASSIGNMENT FORM
To assign this Note, fill in the form below:
(I) or (we) assign and transfer this Note to:
---------------------------------
(Insert assignee's legal name)
-------------------------------------------------------------------------------
(Insert assignee's soc. sec. or tax I.D. no.)
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
(Print or type assignee's name, address and zip code)
and irrevocably appoint
--------------------------------------------------------
to transfer this Note on the books of the Company. The agent may substitute
another to act for him.
Date:
------------------------
Your Signature:
------------------------------------------------------------
(Sign exactly as your name appears on the face of this Note)
Signature Guarantee*:
----------------------------
* Participant in a recognized Signature Guarantee Medallion Program (or other
signature guarantor acceptable to the Trustee).
A-1-8
EXHIBIT A-1
OPTION OF HOLDER TO ELECT PURCHASE
If you want to elect to have this Note purchased by the Company pursuant to
Section 4.10 or 4.15 of the Indenture, check the appropriate box below:
/ / Section 4.10 / / Section 4.15
If you want to elect to have only part of the Note purchased by the Company
pursuant to Section 4.10 or Section 4.15 of the Indenture, state the amount you
elect to have purchased:
$
------------------
Date:
-------------------
Your Signature:
------------------------------------------------------------
(Sign exactly as your name appears on the face of this Note)
Tax Identification No.:
----------------------------------------------------
Signature Guarantee*:
------------------
* Participant in a recognized Signature Guarantee Medallion Program (or other
signature guarantor acceptable to the Trustee).
A-1-9
EXHIBIT A-1
SCHEDULE OF EXCHANGES OF INTERESTS IN THE GLOBAL NOTE*
The following exchanges of a part of this Global Note for an interest in
another Global Note or for a Certificated Note, or exchanges of a part of
another Global Note or Certificated Note for an interest in this Global Note,
have been made:
Amount of Amount of
decrease in increase in Principal Amount Signature of
Principal Principal [at maturity] of authorized
Amount Amount this Global Note officer of
[at maturity] [at maturity] following such Trustee or
Date of of this of this decrease Note
Exchange Global Note Global Note (or increase) Custodian
-------- ------------- ------------- ---------------- ------------
* This schedule should be included only if the Note is issued in global form.
A-1-10
EXHIBIT A-2
[Face of Regulation S Temporary Global Note]
CUSIP/CINS
----------
10 1/4% First Mortgage Notes due 2009
No. 2 $
----------
XXXXXXX-XXXXX, INC.
promises to pay to
-------------------------------------------------------------
or registered assigns,
the principal sum of
-----------------------------------------------------------
Dollars on
Interest Payment Dates:
Record Dates:
Dated: April 22, 1999
XXXXXXX-XXXXX, INC.
By:
------------------------------------
Name:
Title:
By:
------------------------------------
Name:
Title:
(SEAL)
This is one of the Global Notes referred to
in the within-mentioned Indenture:
UNITED STATES TRUST COMPANY OF NEW YORK,
as Trustee
By:
--------------------------
Authorized Signatory
A-2-1
[Back of Regulation S Temporary Global Note]
10 1/4% First Mortgage Notes due 2009
THE RIGHTS ATTACHING TO THIS REGULATION S TEMPORARY GLOBAL NOTE, AND THE
CONDITIONS AND PROCEDURES GOVERNING ITS EXCHANGE FOR CERTIFICATED NOTES, ARE AS
SPECIFIED IN THE INDENTURE (AS DEFINED HEREIN). NEITHER THE HOLDER NOR THE
BENEFICIAL OWNERS OF THIS REGULATION S TEMPORARY GLOBAL NOTE SHALL BE ENTITLED
TO RECEIVE PAYMENT OF INTEREST HEREON.
UNLESS AND UNTIL IT IS EXCHANGED IN WHOLE OR IN PART FOR NOTES IN DEFINITIVE
FORM, THIS NOTE MAY NOT BE TRANSFERRED EXCEPT AS A WHOLE BY THE DEPOSITARY TO A
NOMINEE OF THE DEPOSITARY OR BY A NOMINEE OF THE DEPOSITARY TO THE DEPOSITARY OR
ANOTHER NOMINEE OF THE DEPOSITARY OR BY THE DEPOSITARY OR ANY SUCH NOMINEE TO A
SUCCESSOR DEPOSITARY OR A NOMINEE OF SUCH SUCCESSOR DEPOSITARY. UNLESS THIS
CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST
COMPANY (00 XXXXX XXXXXX, XXX XXXX, XXX XXXX) ("DTC"), TO THE COMPANY OR ITS
AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE
ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR SUCH OTHER NAME AS MAY BE
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO
CEDE & CO. OR SUCH OTHER ENTITY AS MAY BE REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
THIS FIRST MORTGAGE 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 NEXT SENTENCE. 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 HAS ACQUIRED THIS FIRST MORTGAGE NOTE IN AN OFFSHORE
TRANSACTION IN COMPLIANCE WITH REGULATION S UNDER THE SECURITIES ACT, (2) AGREES
THAT IT WILL NOT RESELL OR OTHERWISE TRANSFER THIS FIRST MORTGAGE 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 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 FIRST MORTGAGE NOTE OR AN INTEREST HEREIN IS
TRANSFERRED A NOTICE SUBSTANTIALLY TO THE EFFECT OF THIS LEGEND.
A-2-2
EXHIBIT A-2
Capitalized terms used herein shall have the meanings assigned to them in
the Indenture referred to below unless otherwise indicated.
1. INTEREST. Xxxxxxx-Xxxxx, Inc., a Delaware corporation (the "Company"),
promises to pay interest on the principal amount of this Note at 10 1/4% per
annum from October 1, 1999 until maturity and shall pay the Liquidated Damages
payable pursuant to Section 5 of the Registration Rights Agreement referred to
below. The Company will pay interest and Liquidated Damages semi-annually in
arrears on April 1 and October 1 of each year, or if any such day is not a
Business Day, on the next succeeding Business Day (each an "Interest Payment
Date"). Interest on the Notes will accrue from the most recent date to which
interest has been paid or, if no interest has been paid, from the date of
issuance; provided that if there is no existing Default in the payment of
interest, and if this Note is authenticated between a record date referred to on
the face hereof and the next succeeding Interest Payment Date, interest shall
accrue from such next succeeding Interest Payment Date; provided, further, that
the first Interest Payment Date shall be October 1, 1999. The Company shall pay
interest (including post-petition interest in any proceeding under any
Bankruptcy Law) on overdue principal and premium, if any, from time to time on
demand at a rate that is 1% per annum in excess of the rate then in effect; it
shall pay interest (including post-petition interest in any proceeding under any
Bankruptcy Law) on overdue installments of interest and Liquidated Damages
(without regard to any applicable grace periods) from time to time on demand at
the same rate to the extent lawful. Interest will be computed on the basis of a
360-day year of twelve 30-day months.
Until this Regulation S Temporary Global Note is exchanged for one or more
Regulation S Permanent Global Notes, the Holder hereof shall not be entitled to
receive payments of interest hereon; until so exchanged in full, this Regulation
S Temporary Global Note shall in all other respects be entitled to the same
benefits as other First Mortgage Notes under the Indenture.
2. METHOD OF PAYMENT. The Company will pay interest on the Notes (except
defaulted interest) and Liquidated Damages to the Persons who are registered
Holders of Notes at the close of business on the March 15 or September 15 next
preceding the Interest Payment Date, even if such Notes are canceled after such
record date and on or before such Interest Payment Date, except as provided in
Section 2.12 of the Indenture with respect to defaulted interest. The Notes will
be payable as to principal, premium, interest and Liquidated Damages, if any, at
the office or agency of the Company maintained for such purpose within or
without the City and State of New York, or, at the option of the Company,
payment of interest and Liquidated Damages may be made by check mailed to the
Holders at their addresses set forth in the register of Holders, and provided
that payment by wire transfer of immediately available funds will be required
with respect to principal of and interest, premium and Liquidated Damages on,
all Global Notes and all other Notes the Holders of which shall have provided
wire transfer instructions to the Company or the Paying Agent. Such payment
shall be in such coin or currency of the United States of America as at the time
of payment is legal tender for payment of public and private debts.
3. PAYING AGENT AND REGISTRAR. Initially, UNITED STATES TRUST COMPANY OF
NEW YORK, the Trustee under the Indenture, will act as Paying Agent and
Registrar. The Company may change any Paying Agent or Registrar without notice
to any Holder. The Company or any of its Subsidiaries may act in any such
capacity.
4. INDENTURE AND SECURITY AGREEMENTS. The Company issued the Notes under an
Indenture dated as of April 22, 1999 ("Indenture") among the Company, the
Guarantors and the Trustee. The terms
A-2-3
EXHIBIT A-2
of the Notes include those stated in the Indenture and those made part of the
Indenture by reference to the Trust Indenture Act of 1939, as amended (15 U.S.
Code ss.ss.77aaa-77bbbb). The Notes are subject to all such terms, and Holders
are referred to the Indenture and such Act for a statement of such terms. To the
extent any provision of this Note conflicts with the express provisions of the
Indenture, the provisions of the Indenture shall govern and be controlling. The
Notes are secured obligations of the Company limited to $210.0 million in
aggregate principal amount. The Notes are secured by a first priority security
interest in the property, plant and equipment and certain related assets of the
Company and its subsidiaries, constituting 17 of the principal granulation, seed
production, processing and nitrogen plants of the Company and its subsidiaries,
and a pledge of all of the equity interests of Xxxxxxx-Xxxxx Realty LLC,
Xxxxxxx-Xxxxx AgriBusiness LLC, Xxxxxxx-Xxxxx Nitrogen Realty LLC and
Xxxxxxx-Xxxxx Xxxxxx'x Realty LLC, the Company's Special Purpose Restricted
Subsidiaries that own or will own approximately 270 properties used in the
Company's business, including substantially all of the Farmarkets and other
owned facilities, pursuant to the Security Agreements referred to in the
Indenture.
5. OPTIONAL REDEMPTION.
(a) Except as set forth in subparagraph (b) of this Paragraph 5, the
Company shall not have the option to redeem the Notes prior to April 1, 2004.
Thereafter, the Company shall have the option to redeem the Notes, in whole or
in part, upon not less than 30 nor more than 60 days' notice, at the redemption
prices (expressed as percentages of principal amount) set forth below plus
accrued and unpaid interest and Liquidated Damages thereon to the applicable
redemption date, if redeemed during the twelve-month period beginning on April 1
of the years indicated below:
Year Percentage
---- ----------
2004.................................................. 105.125%
2005.................................................. 103.417%
2006.................................................. 101.708%
2007 and thereafter................................... 100.000%
(b) Notwithstanding the provisions of subparagraph (a) of this Paragraph 5,
at any time prior to April 1, 2002, the Company may redeem Notes with the net
proceeds of one or more Public Equity Offerings at a redemption price equal to
110.250% of the aggregate principal amount, plus accrued and unpaid interest
(including Liquidated Damages) thereon, if any; provided that at least 65% in
aggregate principal amount of the Notes originally issued remain outstanding
immediately after the occurrence of such redemption and that such redemption
occurs within 45 days of the date of the closing of such Public Equity Offering.
6. MANDATORY REDEMPTION.
The Company is not required to make mandatory redemption or sinking fund
payments with respect to the Notes.
7. REPURCHASE AT OPTION OF HOLDER.
(a) If there is a Change of Control, the Company shall be required to make
an offer (a "Change of Control Offer") to repurchase all or any part (equal to
$1,000 or an integral multiple thereof) of each Holder's Notes at a purchase
price paid in cash equal to 101% of the aggregate principal amount thereof plus
accrued and unpaid interest and Liquidated Damages thereon, if any, to the date
of purchase (the "Change of Control Payment"). Within 10 days following any
Change of Control, the Company shall mail a notice to each Holder setting forth
the procedures governing the Change of Control Offer as required by the
Indenture.
A-2-4
EXHIBIT A-2
(b) If the Company or a Restricted Subsidiary consummates any Asset Sales,
within five days of each date on which the aggregate amount of Excess Proceeds
exceeds $5.0 million, the Company shall commence an offer to all Holders of
Notes and all holders of other Indebtedness that is pari passu with the First
Mortgage Notes containing provisions similar to those set forth in the Indenture
with respect to offers to purchase or redeem with the proceeds of sales of
assets to purchase the maximum principal amount of First Mortgage Notes and such
other pari passu Indebtedness that may be purchased out of the Excess Proceeds,
(an "Asset Sale Offer") pursuant to Section 3.09 of the Indenture to purchase
the maximum principal amount of Notes (including any Additional Notes) that may
be purchased out of the Excess Proceeds at an offer price in cash in an amount
equal to 100% of the principal amount thereof plus accrued and unpaid interest
and Liquidated Damages thereon, if any, to the date of purchase, in accordance
with the procedures set forth in the Indenture. To the extent that the aggregate
amount of Notes (including any Additional Notes) tendered pursuant to an Asset
Sale Offer is less than the Excess Proceeds, the Company may use such Excess
Proceeds for any purpose not otherwise prohibited by the Indenture. If the
aggregate principal amount of Notes surrendered by Holders thereof and such
other pari passu Indebtedness tendered into such Asset Sale Offer exceeds the
amount of Excess Proceeds, the Trustee shall select the Notes and such other
pari passu Indebtedness to be purchased on a pro rata basis based on the
principal amount of First Mortgage Notes and such other pari passu Indebtedness
tendered. Holders of Notes that are the subject of an offer to purchase will
receive an Asset Sale Offer from the Company prior to any related purchase date
and may elect to have such Notes purchased by completing the form entitled
"Option of Holder to Elect Purchase" on the reverse of the Notes.
8. NOTICE OF REDEMPTION. Notice of redemption will be mailed at least 30
days but not more than 60 days before the redemption date to each Holder whose
Notes are to be redeemed at its registered address. Notes in denominations
larger than $1,000 may be redeemed in part but only in whole multiples of
$1,000, unless all of the Notes held by a Holder are to be redeemed. On and
after the redemption date interest ceases to accrue on Notes or portions thereof
called for redemption.
9. DENOMINATIONS, TRANSFER, EXCHANGE. The Notes are in registered form
without coupons in denominations of $1,000 and integral multiples of $1,000. The
transfer of Notes may be registered and Notes may be exchanged as provided in
the Indenture. The Registrar and the Trustee may require a Holder, among other
things, to furnish appropriate endorsements and transfer documents and the
Company may require a Holder to pay any taxes and fees required by law or
permitted by the Indenture. The Company need not exchange or register the
transfer of any Note or portion of a Note selected for redemption, except for
the unredeemed portion of any Note being redeemed in part. Also, the Company
need not exchange or register the transfer of any Notes for a period of 15 days
before a selection of Notes to be redeemed or during the period between a record
date and the corresponding Interest Payment Date.
This Regulation S Temporary Global Note is exchangeable in whole or in part
for one or more Global Notes only (i) on or after the termination of the 40-day
restricted period (as defined in Regulation S) and (ii) upon presentation of
certificates (accompanied by an Opinion of Counsel, if applicable) required by
Article 2 of the Indenture. Upon exchange of this Regulation S Temporary Global
Note for one or more Global Notes, the Trustee shall cancel this Regulation S
Temporary Global Note.
10. PERSONS DEEMED OWNERS. The registered Holder of a Note may be treated
as its owner for all purposes.
A-2-5
EXHIBIT A-2
11. AMENDMENT, SUPPLEMENT AND WAIVER. Subject to certain exceptions, the
Indenture or the Notes may be amended or supplemented with the consent of the
Holders of at least a majority in principal amount of the then outstanding Notes
(including, without limitation, consents obtained in connection with a purchase
of, or tender offer for, Notes) and Additional Notes, if any, voting as a single
class, and any existing default or compliance with any provision of the
Indenture or the Notes may be waived with the consent of the Holders of a
majority in principal amount of the then outstanding Notes (including, without
limitation, consents obtained in connection with a purchase of, or tender offer
for, Notes) and Additional Notes, if any, voting as a single class. Without the
consent of any Holder of a Note, the Indenture or the Notes may be amended or
supplemented to cure any ambiguity, defect or inconsistency, to provide for
uncertificated Notes in addition to or in place of certificated Notes, to
provide for the assumption of the Company's obligations to Holders of the Notes
in case of a merger or consolidation or sale of all or substantially all of the
Company's assets, to make any change that would provide any additional rights or
benefits to the Holders of the Notes or that does not adversely affect the legal
rights under the Indenture of any such Holder or to comply with the requirements
of the SEC in order to effect or maintain the qualification of the Indenture
under the Trust Indenture Act.
12. DEFAULTS AND REMEDIES. Events of Default include: (i) default for 30
days in the payment when due of interest (including Liquidated Damages) on the
Notes; (ii) default in payment when due of the principal of, or premium, if any,
on the Notes when the same becomes due and payable at maturity, upon redemption
(including in connection with an offer to purchase) or otherwise, (iii) failure
by the Company or any of its Restricted Subsidiaries to comply with Section
4.07, 4.09, 4.10, 4.15, 4.16, 4.22 or 5.01 of the Indenture which failure
remains uncured for 30 days; (iv) failure by the Company or any of its
Restricted Subsidiaries for 60 days after notice to the Company by the Trustee
or the Holders of at least 25% in principal amount of the Notes (including
Additional Notes, if any) then outstanding voting as a single class to comply
with any of the other agreements in the Indenture; (v) default under certain
other agreements relating to Indebtedness of the Company or any of its
Restricted Subsidiaries, which default results in the acceleration of such
Indebtedness prior to its express maturity or is caused by a failure to pay
principal of, or interest or premium, if any, on such Indebtedness prior to the
expiration of the grace period, and in each case, the principal amount of total
Indebtedness aggregates $10.0 million or more; (vi) certain final judgments
against the Company or any of its Restricted Subsidiaries for the payment of
money aggregating in excess of $10.0 million that remain undischarged for a
period of 60 days; (vii) certain events of bankruptcy or insolvency with respect
to the Company or any of its Restricted Subsidiaries; (viii) the breach by the
Company or any Restricted Subsidiary of certain covenants in the Security
Agreements, repudiation by the Company or any Restricted Subsidiary of any
obligations under the Security Agreements or the Security Agreements shall be
held in any judicial proceeding to be unenforceable or invalid or shall cease
for any reason to be in full force and effect; and (ix) except as permitted by
the Indenture, any Guarantee shall be held in any judicial proceeding to be
unenforceable or invalid or shall cease for any reason to be in full force and
effect or any Guarantor or any Person acting on its behalf shall deny or
disaffirm its obligations under such Guarantor's Guarantee. If any Event of
Default occurs and is continuing, the Trustee or the Holders of at least 25% in
principal amount of the then outstanding Notes may declare all the Notes to be
due and payable immediately. Notwithstanding the foregoing, in the case of an
Event of Default arising from certain events of bankruptcy or insolvency, with
respect to the Company, any Restricted Subsidiary that is a Significant
Subsidiary or any group of Restricted Subsidiaries that, taken together, would
constitute a Significant Subsidiary, all outstanding Notes will become due and
payable without further action or notice. Holders may not enforce the Indenture
or the Notes except as provided in the Indenture. Subject to certain
limitations, Holders of a majority in principal amount of the then outstanding
Notes may direct the Trustee in its exercise of any trust or power. The Trustee
may withhold from Holders of the Notes notice of any continuing Default or Event
of Default (except a Default
A-2-6
EXHIBIT A-2
or Event of Default relating to the payment of principal or interest (or
Liquidated Damages)) if it determines that withholding notice is in their
interest. The Holders of a majority in aggregate principal amount of the Notes
then outstanding by notice to the Trustee may on behalf of the Holders of all of
the Notes waive any existing Default or Event of Default and its consequences
under the Indenture except a continuing Default or Event of Default in the
payment of interest (or Liquidated Damages) on, or the principal of, the Notes.
The Company is required to deliver to the Trustee annually a statement regarding
compliance with the Indenture, and the Company is required upon becoming aware
of any Default or Event of Default, to deliver to the Trustee a statement
specifying such Default or Event of Default.
13. TRUSTEE DEALINGS WITH COMPANY. If the Trustee becomes a creditor of the
Company or any Guarantor, the Indenture limits its right to obtain payment of
claims in certain cases, or to realize on certain property received in respect
of any such claim as security or otherwise. The Trustee will be permitted to
engage in other transactions; however, if it acquires any conflicting interest
it must eliminate such conflict within 90 days, apply to the Commission for
permission to continue, or resign.
14. NO RECOURSE AGAINST OTHERS. A director, officer, employee, incorporator
or stockholder, of the Company or any of the Guarantors, as such, shall not have
any liability for any obligations of the Company or such Guarantor under the
Notes or the 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 Note waives and releases all such liability. The waiver and release
are part of the consideration for the issuance of the Notes.
15. AUTHENTICATION. This Note shall not be valid until authenticated by the
manual signature of the Trustee or an authenticating agent.
16. ABBREVIATIONS. Customary abbreviations may be used in the name of a
Holder or an assignee, such as: TEN COM (= tenants in common), TEN ENT (=
tenants by the entireties), JT TEN (= joint tenants with right of survivorship
and not as tenants in common), CUST (= Custodian), and U/G/M/A (= Uniform Gifts
to Minors Act).
17. ADDITIONAL RIGHTS OF HOLDERS OF RESTRICTED GLOBAL NOTES AND RESTRICTED
CERTIFICATED NOTES. In addition to the rights provided to Holders of Notes under
the Indenture, Holders of Restricted Global Notes and Restricted Certificated
Notes shall have all the rights set forth in the Registration Rights Agreement
dated as of April 22, 1999, between the Company and the parties named on the
signature pages thereof or, in the case of Additional Notes, Holders of
Restricted Global Notes and Restricted Certificated Notes shall have the rights
set forth in one or more registration rights agreements, if any, between the
Company and the other parties thereto, relating to rights given by the Company
to the purchasers of any Additional Notes (collectively, the "Registration
Rights Agreement").
18. CUSIP NUMBERS. Pursuant to a recommendation promulgated by the
Committee on Uniform Security Identification Procedures, the Company has caused
CUSIP numbers to be printed on the Notes and the Trustee may use CUSIP numbers
in notices of redemption as a convenience to Holders. No representation is made
as to the accuracy of such numbers either as printed on the Notes or as
contained in any notice of redemption and reliance may be placed only on the
other identification numbers placed thereon.
The Company will furnish to any Holder upon written request and without
charge a copy of the Indenture and/or the Registration Rights Agreement.
Requests may be made to:
A-2-7
EXHIBIT A-2
Xxxxxxx-Xxxxx, Inc.
00 Xxxxxxxxxxx Xxxxx - Xxxxx 0000
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxx Xxxxx
A-2-8
ASSIGNMENT FORM
To assign this Note, fill in the form below:
(I) or (we) assign and transfer this Note to:
---------------------------------
(Insert assignee's legal name)
-------------------------------------------------------------------------------
(Insert assignee's soc. sec. or tax I.D. no.)
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
(Print or type assignee's name, address and zip code)
and irrevocably appoint
--------------------------------------------------------
to transfer this Note on the books of the Company. The agent may substitute
another to act for him.
Date:
------------------------
Your Signature:
------------------------------------------------------------
(Sign exactly as your name appears on the face of this Note)
Signature Guarantee*:
----------------------------
* Participant in a recognized Signature Guarantee Medallion Program (or other
signature guarantor acceptable to the Trustee).
A-2-9
EXHIBIT A-2
OPTION OF HOLDER TO ELECT PURCHASE
If you want to elect to have this Note purchased by the Company pursuant to
Section 4.10 or 4.15 of the Indenture, check the appropriate box below:
/ / Section 4.10 / / Section 4.15
If you want to elect to have only part of the Note purchased by the Company
pursuant to Section 4.10 or Section 4.15 of the Indenture, state the amount you
elect to have purchased:
$
------------------
Date:
-------------------
Your Signature:
------------------------------------------------------------
(Sign exactly as your name appears on the face of this Note)
Tax Identification No.:
----------------------------------------------------
Signature Guarantee*:
------------------
* Participant in a recognized Signature Guarantee Medallion Program (or other
signature guarantor acceptable to the Trustee).
A-2-10
EXHIBIT A-2
SCHEDULE OF EXCHANGES OF REGULATION S TEMPORARY GLOBAL NOTE
The following exchanges of a part of this Regulation S Temporary Global
Note for an interest in another Global Note, or of other Restricted Global Notes
for an interest in this Regulation S Temporary Global Note, have been made:
Amount of Amount of
decrease in increase in Principal Amount Signature of
Principal Principal [at maturity] of authorized
Amount Amount this Global Note officer of
[at maturity] [at maturity] following such Trustee or
Date of of this of this decrease Note
Exchange Global Note Global Note (or increase) Custodian
-------- ------------- ------------- ---------------- ------------
A-2-11
EXHIBIT B
FORM OF CERTIFICATE OF TRANSFER
Xxxxxxx-Xxxxx, Inc.
00 Xxxxxxxxxxx Xxxxx - Xxxxx 0000
Xxx Xxxx, Xxx Xxxx 00000
United States Trust Company of New York
Corporate Trust Division
000 Xxxx 00xx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx l0036-1532
Re: 10 1/4% First Mortgage Notes due 2009
Reference is hereby made to the Indenture, dated as of April 22, 1999 (the
"Indenture"), between Xxxxxxx-Xxxxx, Inc. as issuer (the "Company"), and United
States Trust Company of New York, as trustee. Capitalized terms used but not
defined herein shall have the meanings given to them in the Indenture.
___________________, (the "Transferor") owns and proposes to transfer the
Note[s] or interest in such Note[s] specified in Annex A hereto, in the
principal amount of $___________ in such Note[s] or interests (the "Transfer"),
to ___________________________ (the "Transferee"), as further specified in Annex
A hereto. In connection with the Transfer, the Transferor hereby certifies that:
[CHECK ALL THAT APPLY]
1. |_| Check if Transferee will take delivery of a beneficial interest in
the Rule 144A Global Note or a Certificated Note Pursuant to Rule 144A. The
Transfer is being effected pursuant to and in accordance with Rule 144A under
the United States Securities Act of 1933, as amended (the "Securities Act"),
and, accordingly, the Transferor hereby further certifies that the beneficial
interest or Certificated Note is being transferred to a Person that the
Transferor reasonably believed and believes is purchasing the beneficial
interest or Certificated Note for its own account, or for one or more accounts
with respect to which such Person exercises sole investment discretion, and such
Person and each such account is a "qualified institutional buyer" within the
meaning of Rule 144A in a transaction meeting the requirements of Rule 144A and
such Transfer is in compliance with any applicable blue sky securities laws of
any state of the United States. Upon consummation of the proposed Transfer in
accordance with the terms of the Indenture, the transferred beneficial interest
or Certificated Note will be subject to the restrictions on transfer enumerated
in the Private Placement Legend printed on the Rule 144A Global Note and/or the
Certificated Note and in the Indenture and the Securities Act.
2. |_| Check if Transferee will take delivery of a beneficial interest in
the Temporary Regulation S Global Note, the Regulation S Global Note or a
Certificated Note pursuant to Regulation S. The Transfer is being effected
pursuant to and in accordance with Rule 903 or Rule 904 under the Securities Act
and, accordingly, the Transferor hereby further certifies that (i) the Transfer
is not being made to a person in the United States and (x) at the time the buy
order was originated, the Transferee was outside the United States or such
Transferor and any Person acting on its behalf reasonably believed and believes
that the Transferee was outside the United States or (y) the transaction was
executed in, on or through the facilities of a designated offshore securities
market and neither such Transferor nor any Person acting on its behalf knows
that the transaction was prearranged with a buyer in the United States, (ii) no
directed selling efforts have been made in contravention of the requirements of
Rule 903(b) or Rule 904(b)
B-1
of Regulation S under the Securities Act, (iii) the transaction is not part of a
plan or scheme to evade the registration requirements of the Securities Act and
(iv) if the proposed transfer is being made prior to the expiration of the
Restricted Period, the transfer is not being made to a U.S. Person or for the
account or benefit of a U.S. Person (other than an Initial Purchaser). Upon
consummation of the proposed transfer in accordance with the terms of the
Indenture, the transferred beneficial interest or Certificated Note will be
subject to the restrictions on Transfer enumerated in the Private Placement
Legend printed on the Regulation S Global Note, the Temporary Regulation S
Global Note and/or the Certificated Note and in the Indenture and the Securities
Act.
3. |_| Check and complete if Transferee will take delivery of a beneficial
interest in the IAI Global Note or a Certificated Note pursuant to any provision
of the Securities Act other than Rule 144A or Regulation S. The Transfer is
being effected in compliance with the transfer restrictions applicable to
beneficial interests in Restricted Global Notes and Restricted Certificated
Notes and pursuant to and in accordance with the Securities Act and any
applicable blue sky securities laws of any state of the United States, and
accordingly the Transferor hereby further certifies that (check one):
(a) |_| such Transfer is being effected pursuant to and in accordance
with Rule 144 under the Securities Act;
or
(b) |_| such Transfer is being effected to the Company or a subsidiary
thereof;
or
(c) |_| such Transfer is being effected pursuant to an effective
registration statement under the Securities Act and in compliance with the
prospectus delivery requirements of the Securities Act.
4. |_| Check if Transferee will take delivery of a beneficial interest in
an Unrestricted Global Note or of an Unrestricted Certificated Note.
(a) |_| Check if Transfer is pursuant to Rule 144. (i) The Transfer is
being effected pursuant to and in accordance with Rule 144 under the Securities
Act and in compliance with the transfer restrictions contained in the Indenture
and any applicable blue sky securities laws of any state of the United States
and (ii) the restrictions on transfer contained in the Indenture and the Private
Placement Legend are not required in order to maintain compliance with the
Securities Act. Upon consummation of the proposed Transfer in accordance with
the terms of the Indenture, the transferred beneficial interest or Certificated
Note will no longer be subject to the restrictions on transfer enumerated in the
Private Placement Legend printed on the Restricted Global Notes, on Restricted
Certificated Notes and in the Indenture.
(b) |_| Check if Transfer is Pursuant to Regulation S. (i) The Transfer is
being effected pursuant to and in accordance with Rule 903 or Rule 904 under the
Securities Act and in compliance with the transfer restrictions contained in the
Indenture and any applicable blue sky securities laws of any state of the United
States and (ii) the restrictions on transfer contained in the Indenture and the
Private Placement Legend are not required in order to maintain compliance with
the Securities Act. Upon consummation of the proposed Transfer in accordance
with the terms of the Indenture, the transferred beneficial interest or
Certificated Note will no longer be subject to the restrictions on transfer
enumerated in the Private Placement Legend printed on the Restricted Global
Notes, on Restricted Certificated Notes and in the Indenture.
B-2
(c) |_| Check if Transfer is Pursuant to Other Exemption. (i) The Transfer
is being effected pursuant to and in compliance with an exemption from the
registration requirements of the Securities Act other than Rule 144, Rule 903 or
Rule 904 and in compliance with the transfer restrictions contained in the
Indenture and any applicable blue sky securities laws of any State of the United
States and (ii) the restrictions on transfer contained in the Indenture and the
Private Placement Legend are not required in order to maintain compliance with
the Securities Act. Upon consummation of the proposed Transfer in accordance
with the terms of the Indenture, the transferred beneficial interest or
Certificated Note will not be subject to the restrictions on transfer enumerated
in the Private Placement Legend printed on the Restricted Global Notes or
Restricted Certificated Notes and in the Indenture.
This certificate and the statements contained herein are made for your
benefit and the benefit of the Company.
----------------------------------------
[Insert Name of Transferor]
By:
-------------------------------------
Name:
Title:
Dated:
-----------------------
B-3
EXHIBIT B
ANNEX A TO CERTIFICATE OF TRANSFER
1. The Transferor owns and proposes to transfer the following:
[CHECK ONE OF (a) OR (b)]
(a) |_| a beneficial interest in the:
(i) |_| Rule 144A Global Note (CUSIP ________________), or
(ii) |_| Regulation S Global Note (CUSIP ________________); or
(b) |_| a Restricted Certificated Note.
2. After the Transfer the Transferee will hold:
[CHECK ONE]
(a) |_| a beneficial interest in the:
(i) |_| Rule 144A Global Note (CUSIP ________________), or
(ii) |_| Regulation S Global Note (CUSIP ________________), or
(iii) |_| Unrestricted Global Note (CUSIP ________________); or
(b) |_| a Restricted Certificated Note; or
(c) |_| an Unrestricted Certificated Note,
in accordance with the terms of the Indenture.
B-4
EXHIBIT C
FORM OF CERTIFICATE OF EXCHANGE
Xxxxxxx-Xxxxx, Inc.
00 Xxxxxxxxxxx Xxxxx - Xxxxx 0000
Xxx Xxxx, Xxx Xxxx 00000
United States Trust Company of New York
Corporate Trust Division
000 Xxxx 00xx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx l0036-1532
Re: 10 1/4% First Mortgage Notes due 2009.
(CUSIP [000000XX0][USU7793AA89])
Reference is hereby made to the Indenture, dated as of April 22, 1999 (the
"Indenture"), between Xxxxxxx-Xxxxx, Inc., as issuer (the "Company"), and United
States Trust Company of New York, as trustee. Capitalized terms used but not
defined herein shall have the meanings given to them in the Indenture.
__________________________, (the "Owner") owns and proposes to exchange the
Note[s] or interest in such Note[s] specified herein, in the principal amount of
$____________ in such Note[s] or interests (the "Exchange"). In connection with
the Exchange, the Owner hereby certifies that:
1. Exchange of Restricted Certificated Notes or Beneficial Interests in a
Restricted Global Note for Unrestricted Certificated Notes or Beneficial
Interests in an Unrestricted Global Note
(a) |_| Check if Exchange is from beneficial interest in a Restricted
Global Note to beneficial interest in an Unrestricted Global Note. In connection
with the Exchange of the Owner's beneficial interest in a Restricted Global Note
for a beneficial interest in an Unrestricted Global Note in an equal principal
amount, the Owner hereby certifies (i) the beneficial interest is being acquired
for the Owner's own account without transfer, (ii) such Exchange has been
effected in compliance with the transfer restrictions applicable to the Global
Notes and pursuant to and in accordance with the United States Securities Act of
1933, as amended (the "Securities Act"), (iii) the restrictions on transfer
contained in the Indenture and the Private Placement Legend are not required in
order to maintain compliance with the Securities Act and (iv) the beneficial
interest in an Unrestricted Global Note is being acquired in compliance with any
applicable blue sky securities laws of any state of the United States.
(b) |_| Check if Exchange is from beneficial interest in a Restricted
Global Note to Unrestricted Certificated Note. In connection with the Exchange
of the Owner's beneficial interest in a Restricted Global Note for an
Unrestricted Certificated Note, the Owner hereby certifies (i) the Certificated
Note is being acquired for the Owner's own account without transfer, (ii) such
Exchange has been effected in compliance with the transfer restrictions
applicable to the Restricted Global Notes and pursuant to and in accordance with
the Securities Act, (iii) the restrictions on transfer contained in the
Indenture and the Private Placement Legend are not required in order to maintain
compliance with the Securities Act and (iv) the Certificated Note is being
acquired in compliance with any applicable blue sky securities laws of any state
of the United States.
C-1
EXHIBIT C
(c) |_| Check if Exchange is from Restricted Certificated Note to
beneficial interest in an Unrestricted Global Note. In connection with the
Owner's Exchange of a Restricted Certificated Note for a beneficial interest in
an Unrestricted Global Note, the Owner hereby certifies (i) the beneficial
interest is being acquired for the Owner's own account without transfer, (ii)
such Exchange has been effected in compliance with the transfer restrictions
applicable to Restricted Certificated Notes and pursuant to and in accordance
with the Securities Act, (iii) the restrictions on transfer contained in the
Indenture and the Private Placement Legend are not required in order to maintain
compliance with the Securities Act and (iv) the beneficial interest is being
acquired in compliance with any applicable blue sky securities laws of any state
of the United States.
(d) |_| Check if Exchange is from Restricted Certificated Note to
Unrestricted Certificated Note. In connection with the Owner's Exchange of a
Restricted Certificated Note for an Unrestricted Certificated Note, the Owner
hereby certifies (i) the Unrestricted Certificated Note is being acquired for
the Owner's own account without transfer, (ii) such Exchange has been effected
in compliance with the transfer restrictions applicable to Restricted
Certificated Notes and pursuant to and in accordance with the Securities Act,
(iii) the restrictions on transfer contained in the Indenture and the Private
Placement Legend are not required in order to maintain compliance with the
Securities Act and (iv) the Unrestricted Certificated Note is being acquired in
compliance with any applicable blue sky securities laws of any state of the
United States.
2. Exchange of Restricted Certificated Notes or Beneficial Interests in
Restricted Global Notes for Restricted Certificated Notes or Beneficial
Interests in Restricted Global Notes
(a) |_| Check if Exchange is from beneficial interest in a Restricted
Global Note to Restricted Certificated Note. In connection with the Exchange of
the Owner's beneficial interest in a Restricted Global Note for a Restricted
Certificated Note with an equal principal amount, the Owner hereby certifies
that the Restricted Certificated Note is being acquired for the Owner's own
account without transfer. Upon consummation of the proposed Exchange in
accordance with the terms of the Indenture, the Restricted Certificated Note
issued will continue to be subject to the restrictions on transfer enumerated in
the Private Placement Legend printed on the Restricted Certificated Note and in
the Indenture and the Securities Act.
(b) Check if Exchange is from Restricted Certificated Note to beneficial
interest in a Restricted Global Note. In connection with the Exchange of the
Owner's Restricted Certificated Note for a beneficial interest in the [CHECK
ONE] |_| Rule 144A Global Note or |_| Regulation S Global Note, the Owner hereby
certifies (i) the beneficial interest is being acquired for the Owner's own
account without transfer and (ii) such Exchange has been effected in compliance
with the transfer restrictions applicable to the Restricted Global Notes and
pursuant to and in accordance with the Securities Act, and in compliance with
any applicable blue sky securities laws of any state of the United States. Upon
consummation of the proposed Exchange in accordance with the terms of the
Indenture, the beneficial interest issued will be subject to the restrictions on
transfer enumerated in the Private Placement Legend printed on the relevant
Restricted Global Note and in the Indenture and the Securities Act.
C-2
EXHIBIT C
This certificate and the statements contained herein are made for your
benefit and the benefit of the Company.
----------------------------------------
[Insert Name of Transferor]
By:
------------------------------------
Name:
Title:
Dated:
C-3
EXHIBIT D
FORM OF NOTATION OF GUARANTEE
For value received, each Guarantor (which term includes any successor
Person under the Indenture) has, jointly and severally, unconditionally
guaranteed, to the extent set forth in the Indenture and subject to the
provisions in the Indenture dated as of April 22, 1999 (the "Indenture") among
Xxxxxxx-Xxxxx, Inc., the Guarantors listed on Schedule I thereto and United
States Trust Company of New York, as trustee (the "Trustee"), (a) the due and
punctual payment of the principal of, premium, if any, and interest (including
Liquidated Damages) on the Notes (as defined in the Indenture), whether at
maturity, by acceleration, redemption or otherwise, the due and punctual payment
of interest on overdue principal and premium, and, to the extent permitted by
law, interest (including Liquidated Damages), and the due and punctual
performance of all other obligations of the Company to the Holders or the
Trustee all in accordance with the terms of the Indenture and (b) in case of any
extension of time of payment or renewal of any Notes or any of such other
obligations, that the same will be promptly paid in full when due or performed
in accordance with the terms of the extension or renewal, whether at stated
maturity, by acceleration or otherwise. The obligations of the Guarantors to the
Holders of Notes and to the Trustee pursuant to the Guarantee and the Indenture
are expressly set forth in Article 11 of the Indenture and reference is hereby
made to the Indenture for the precise terms of the Guarantee. Each Holder of a
Note, by accepting the same, (a) agrees to and shall be bound by such
provisions, (b) authorizes and directs the Trustee, on behalf of such Holder, to
take such action as may be necessary or appropriate to effectuate the
subordination as provided in the Indenture and (c) appoints the Trustee
attorney-in-fact of such Holder for such purpose; provided, however, that the
Indebtedness evidenced by this Guarantee shall cease to be so subordinated and
subject in right of payment upon any defeasance of this Note in accordance with
the provisions of the Indenture.
XXXXXXX-XXXXX GROUP, INC.
By:
------------------------------------
Name:
Title:
D-1
EXHIBIT D
XXXXXXX-XXXXX REALTY LLC
XXXXXXX-XXXXX AGRIBUSINESS REALTY LLC
XXXXXXX-XXXXX XXXXXX'X REALTY LLC
XXXXXXX-XXXXX NITROGEN REALTY LLC
By:
------------------------------------
Name:
Title:
D-2
EXHIBIT D
IMC AGRIBUSINESS, INC.
XXXXXX'X XX SERVICES, INC.
IMC NITROGEN COMPANY
By:
------------------------------------
Name:
Title:
D-3
EXHIBIT E
FORM OF SUPPLEMENTAL INDENTURE
TO BE DELIVERED BY SUBSEQUENT GUARANTORS
SUPPLEMENTAL INDENTURE (this "Supplemental Indenture"), dated as of
________________, among __________________ (the "Guaranteeing Subsidiary"), a
subsidiary of ____________________ (or its permitted successor), a Delaware
corporation (the "Company"), the Company, the other Guarantors (as defined in
the Indenture referred to herein) and ____________________, as trustee under the
indenture referred to below (the "Trustee").
W I T N E S S E T H
WHEREAS, the Company has heretofore executed and delivered to the Trustee
an indenture (the "Indenture"), dated as of April __, 1999 providing for the
issuance of an aggregate principal amount of up to $210,000,000 of ___% First
Mortgage Notes due 2009 (the "First Mortgage Notes");
WHEREAS, the Indenture provides that under certain circumstances the
Guaranteeing Subsidiary shall execute and deliver to the Trustee a supplemental
indenture pursuant to which the Guaranteeing Subsidiary shall unconditionally
guarantee all of the Company's Obligations under the Notes and the Indenture on
the terms and conditions set forth herein (the "Guarantee"); and
WHEREAS, pursuant to Section [_____] of the Indenture, the Trustee is
authorized to execute and deliver this Supplemental Indenture.
NOW THEREFORE, in consideration of the foregoing and for other good and
valuable consideration, the receipt of which is hereby acknowledged, the
Guaranteeing Subsidiary and the Trustee mutually covenant and agree for the
equal and ratable benefit of the Holders of the Notes as follows:
1. CAPITALIZED TERMS. Capitalized terms used herein without definition
shall have the meanings assigned to them in the Indenture.
2. AGREEMENT TO GUARANTEE. The Guaranteeing Subsidiary hereby agrees as
follows:
(a) Along with all Guarantors named in the Indenture, to jointly and
severally Guarantee to each Holder of a Note authenticated and delivered by
the Trustee and to the Trustee and its successors and assigns, the Notes or
the obligations of the Company hereunder or thereunder, that:
(i) the principal of and interest on the Notes will be promptly
paid in full when due, whether at maturity, by acceleration,
redemption or otherwise, and interest (including Liquidated Damages)
on the overdue principal of and interest (including Liquidated
Damages) on the Notes, if any, if lawful, and all other obligations of
the Company to the Holders or the Trustee hereunder or thereunder will
be promptly paid in full or performed, all in accordance with the
terms hereof and thereof; and
(ii) in case of any extension of time of payment or renewal of
any Notes or any of such other obligations, that same will be promptly
paid in full when due or performed in accordance with the terms of the
extension or renewal, whether at stated maturity, by acceleration or
otherwise. Failing payment when due of any amount so guaranteed or any
performance so guaranteed for whatever reason, the Guarantors shall be
jointly and severally obligated to pay the same immediately.
E-1
EXHIBIT E
(b) The obligations hereunder shall be unconditional, irrespective of
the validity, regularity or enforceability of the Notes or the Indenture,
the absence of any action to enforce the same, any waiver or consent by any
Holder of the Notes with respect to any provisions hereof or thereof, the
recovery of any judgment against the Company, any action to enforce the
same or any other circumstance which might otherwise constitute a legal or
equitable discharge or defense of a guarantor.
(c) The following is hereby waived: diligence presentment, demand of
payment, filing of claims with a court in the event of insolvency or
bankruptcy of the Company, any right to require a proceeding first against
the Company, protest, notice and all demands whatsoever.
(d) This Guarantee shall not be discharged except by complete
performance of the obligations contained in the Notes and the Indenture,
and the Guaranteeing Subsidiary accepts all obligations of a Guarantor
under the Indenture.
(e) If any Holder or the Trustee is required by any court or otherwise
to return to the Company, the Guarantors, or any Custodian, Trustee,
liquidator or other similar official acting in relation to either the
Company or the Guarantors, any amount paid by either to the Trustee or such
Holder, this Guarantee, to the extent theretofore discharged, shall be
reinstated in full force and effect.
(f) The Guaranteeing Subsidiary shall not be entitled to any right of
subrogation in relation to the Holders in respect of any obligations
guaranteed hereby until payment in full of all obligations guaranteed
hereby.
(g) As between the Guarantors, on the one hand, and the Holders and
the Trustee, on the other hand, (x) the maturity of the obligations
guaranteed hereby may be accelerated as provided in Article 6 of the
Indenture for the purposes of this Guarantee, notwithstanding any stay,
injunction or other prohibition preventing such acceleration in respect of
the obligations guaranteed hereby, and (y) in the event of any declaration
of acceleration of such obligations as provided in Article 6 of the
Indenture, such obligations (whether or not due and payable) shall
forthwith become due and payable by the Guarantors for the purpose of this
Guarantee.
(h) The Guarantors shall have the right to seek contribution from any
non-paying Guarantor so long as the exercise of such right does not impair
the rights of the Holders under the Guarantee.
(i) Pursuant to Section 11.02 of the Indenture, after giving effect to
any maximum amount and any other contingent and fixed liabilities that are
relevant under any applicable Bankruptcy or fraudulent conveyance laws, and
after giving effect to any collections from, rights to receive contribution
from or payments made by or on behalf of any other Guarantor in respect of
the obligations of such other Guarantor under Article 11 of the Indenture,
this new Guarantee shall be limited to the maximum amount permissible such
that the obligations of such Guarantor under this Guarantee will not
constitute a fraudulent transfer or conveyance.
3. EXECUTION AND DELIVERY. Each Guaranteeing Subsidiary agrees that the
Guarantees shall remain in full force and effect notwithstanding any failure to
endorse on each Note a notation of such Guarantee.
E-2
EXHIBIT E
4. GUARANTEEING SUBSIDIARY MAY CONSOLIDATE, ETC. ON CERTAIN TERMS.
(a) The Guaranteeing Subsidiary may not consolidate with or merge with or
into (whether or not such Guarantor is the surviving Person) another
corporation, Person or entity whether or not affiliated with such Guarantor
unless:
(i) subject to Sections 11.04 and 11.05 of the Indenture, the Person
formed by or surviving any such consolidation or merger (if other than a
Guarantor or the Company) unconditionally assumes all the obligations of
such Guarantor, pursuant to a supplemental indenture in form and substance
reasonably satisfactory to the Trustee, under the Notes, the Indenture and
the Guarantee on the terms set forth herein or therein; and
(ii) immediately after giving effect to such transaction, no Default
or Event of Default exists.
(b) In case of any such consolidation, merger, sale or conveyance and upon
the assumption by the successor corporation, by supplemental indenture, executed
and delivered to the Trustee and satisfactory in form to the Trustee, of the
Guarantee endorsed upon the Notes and the due and punctual performance of all of
the covenants and conditions of the Indenture to be performed by the Guarantor,
such successor corporation shall succeed to and be substituted for the Guarantor
with the same effect as if it had been named herein as a Guarantor. Such
successor corporation thereupon may cause to be signed any or all of the
Guarantees to be endorsed upon all of the Notes issuable hereunder which
theretofore shall not have been signed by the Company and delivered to the
Trustee. All the Guarantees so issued shall in all respects have the same legal
rank and benefit under the Indenture as the Guarantees theretofore and
thereafter issued in accordance with the terms of the Indenture as though all of
such Guarantees had been issued at the date of the execution hereof.
(c) Except as set forth in Articles 4 and 5 and Section 11.05 of Article 11
of the Indenture, and notwithstanding clauses (a) and (b) above, nothing
contained in the Indenture or in any of the Notes shall prevent any
consolidation or merger of a Guarantor with or into the Company or another
Guarantor, or shall prevent any sale or conveyance of the property of a
Guarantor as an entirety or substantially as an entirety to the Company or
another Guarantor.
5. RELEASES.
(a) In the event of a sale or other disposition of all of the assets of any
Guarantor, by way of merger, consolidation or otherwise, or a sale or other
disposition of all to the capital stock of any Guarantor, in each case to a
Person that is not (either before or after giving effect to such transaction) a
Restricted Subsidiary of the Company, then such Guarantor (in the event of a
sale or other disposition, by way of merger, consolidation or otherwise, of all
of the capital stock of such Guarantor) or the corporation acquiring the
property (in the event of a sale or other disposition of all or substantially
all of the assets of such Guarantor) will be released and relieved of any
obligations under its Guarantee; provided that the Net Proceeds of such sale or
other disposition are applied in accordance with the applicable provisions of
the Indenture, including without limitation Section 4.10 of the Indenture. Upon
delivery by the Company to the Trustee of an Officers' Certificate and an
Opinion of Counsel to the effect that such sale or other disposition was made by
the Company in accordance with the provisions of the Indenture, including
without limitation Section 4.10 of the Indenture, the Trustee shall execute any
documents reasonably required in order to evidence the release of any Guarantor
from its obligations under its Guarantee.
E-3
EXHIBIT E
(b) Any Guarantor not released from its obligations under its Guarantee
shall remain liable for the full amount of principal of and interest on the
Notes and for the other obligations of any Guarantor under the Indenture as
provided in Article 11 of the Indenture.
6. NO RECOURSE AGAINST OTHERS. No past, present or future director,
officer, employee, incorporator, stockholder or agent of the Guaranteeing
Subsidiary, as such, shall have any liability for any obligations of the Company
or any Guaranteeing Subsidiary under the Notes, any Guarantees, the Indenture or
this Supplemental Indenture or for any claim based on, in respect of, or by
reason of, such obligations or their creation. Each Holder of the Notes by
accepting a Note waives and releases all such liability. The waiver and release
are part of the consideration for issuance of the Notes. Such waiver may not be
effective to waive liabilities under the federal securities laws and it is the
view of the SEC that such a waiver is against public policy.
7. NEW YORK LAW TO GOVERN. THE INTERNAL LAW OF THE STATE OF NEW YORK SHALL
GOVERN AND BE USED TO CONSTRUE THIS SUPPLEMENTAL INDENTURE BUT WITHOUT GIVING
EFFECT TO APPLICABLE PRINCIPLES OF CONFLICTS OF LAW TO THE EXTENT THAT THE
APPLICATION OF THE LAWS OF ANOTHER JURISDICTION WOULD BE REQUIRED THEREBY.
8. COUNTERPARTS. The parties may sign any number of copies of this
Supplemental Indenture. Each signed copy shall be an original, but all of them
together represent the same agreement.
9. EFFECT OF HEADINGS. The Section headings herein are for convenience only
and shall not affect the construction hereof.
10. THE TRUSTEE. The Trustee shall not be responsible in any manner
whatsoever for or in respect of the validity or sufficiency of this Supplemental
Indenture or for or in respect of the recitals contained herein, all of which
recitals are made solely by the Guaranteeing Subsidiary and the Company.
E-4
EXHIBIT E
IN WITNESS WHEREOF, the parties hereto have caused this Supplemental
Indenture to be duly executed and attested, all as of the date first above
written.
Dated:
---------------, ----
[GUARANTEEING SUBSIDIARY]
By:
------------------------------------
Name:
Title:
XXXXXXX-XXXXX, INC.
By:
------------------------------------
Name:
Title:
[EXISTING GUARANTORS]
By:
------------------------------------
Name:
Title:
[TRUSTEE],
as Trustee
By:
------------------------------------
Authorized Signatory
E-5
EXHIBIT F
FORM OF SECURITY AGREEMENTS
F-1
EXHIBIT G
FORM OF SUBSIDIARY INTERCOMPANY NOTE
G-1
EXHIBIT H
SCHEDULE OF GUARANTORS
The following schedule lists each Guarantor under the Indenture as of the
Issue Date:
Xxxxxxx-Xxxxx Group, Inc.
Xxxxxxx-Xxxxx Realty LLC
Xxxxxxx-Xxxxx AgriBusiness Realty LLC
Xxxxxxx-Xxxxx, Xxxxxx'x Realty LLC
Xxxxxxx-Xxxxx Nitrogen Realty LLC
Xxxxxxx-Xxxxx Resources LLC
IMC AgriBusiness, Inc.
Xxxxxx'x Xx Services, Inc.
IMC Nitrogen Company
H-1
