EXHIBIT 4.1
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FIRST SUPPLEMENTAL INDENTURE
Between
SEACOR SMIT INC.
and
U.S. BANK NATIONAL ASSOCIATION
dated as of
September 27, 2002
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TABLE OF CONTENTS
PAGE
Article 1 Definitions and Incorporation by Reference..........................................................1
SECTION 1.01. Definitions....................................................................1
SECTION 1.02. Other Definitions..............................................................5
SECTION 1.03. Incorporation by Reference of Trust Indenture Act..............................5
SECTION 1.04. Rules of Construction..........................................................6
Article 2 The Notes .......................................................................................6
SECTION 2.01. General........................................................................6
SECTION 2.02. Registrar and Paying Agent.....................................................7
SECTION 2.03. Paying Agent To Hold Money in Trust............................................7
SECTION 2.04. Noteholder Lists...............................................................8
SECTION 2.05. Transfer and Exchange..........................................................8
SECTION 2.06. Outstanding Notes..............................................................8
SECTION 2.07. CUSIP Numbers..................................................................9
Article 3 Redemption .......................................................................................9
SECTION 3.01. Notices to Trustee.............................................................9
SECTION 3.02. Notice of Redemption...........................................................9
SECTION 3.03. Optional Redemption...........................................................10
SECTION 3.04. Deposit of Redemption Price...................................................11
Article 4 Covenants ......................................................................................11
SECTION 4.01. SEC Reports...................................................................11
SECTION 4.02. Corporate Existence...........................................................11
SECTION 4.03. Limitation on Liens...........................................................11
SECTION 4.04. Limitation on Sale and Leaseback Transactions.................................12
SECTION 4.05. Exempted Indebtedness.........................................................12
SECTION 4.06. Waiver of Stay; Extension of Usury Laws.......................................12
Article 5 Consolidation, Merger, Conveyance, Transfer or Lease...............................................12
SECTION 5.01. Company May Consolidate, etc., Only on Certain Terms..........................12
SECTION 5.02. Successor Substituted.........................................................13
Article 6 Defaults and Remedies..............................................................................13
SECTION 6.01. Events of Default.............................................................13
SECTION 6.02. Acceleration of Maturity; Rescission and Annulment............................15
SECTION 6.03. Collection of Indebtedness and Suits for Enforcement by Trustee...............15
SECTION 6.04. Restoration of Rights and Remedies............................................16
SECTION 6.05. Control by Holders............................................................16
SECTION 6.06. Waiver of Past Defaults.......................................................16
Article 7 Amendments ......................................................................................16
SECTION 7.01. Without Consent of Holders....................................................16
SECTION 7.02. With Consent of Holders.......................................................17
SECTION 7.03. Compliance with Trust Indenture Act...........................................18
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SECTION 7.04. Revocation and Effect of Consents and Waivers.................................18
SECTION 7.05. Notation on or Exchange of Notes..............................................18
SECTION 7.06. Trustee To Sign Amendments....................................................18
SECTION 7.07. Payment for Consent...........................................................18
Article 8 Discharge of Indenture; Defeasance.................................................................19
SECTION 8.01. Defeasance....................................................................19
SECTION 8.02. Conditions to Defeasance......................................................19
SECTION 8.03. Application of Trust Money....................................................20
SECTION 8.04. Repayment to Company..........................................................20
SECTION 8.05. Indemnity for Government Obligations..........................................20
SECTION 8.06. Reinstatement.................................................................20
Article 9 Miscellaneous......................................................................................21
SECTION 9.01. Trust Indenture Act Controls..................................................21
SECTION 9.02. Notices.......................................................................21
SECTION 9.03. Communication by Holders with Other Holders...................................22
SECTION 9.04. Certificate and Opinion as to Conditions Precedent............................22
SECTION 9.05. Statements Required in Certificate or Opinion.................................22
SECTION 9.06. When Notes Disregarded........................................................22
SECTION 9.07. Rules by Trustee, Paying Agent and Registrar..................................22
SECTION 9.08. Legal Holidays................................................................23
SECTION 9.09. Governing Law.................................................................23
SECTION 9.10. No Recourse Against Others....................................................23
SECTION 9.11. Successors....................................................................23
SECTION 9.12. Multiple Originals............................................................23
SECTION 9.13. Table of Contents; Headings...................................................23
Exhibit A - Form of Global Note
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FIRST SUPPLEMENTAL INDENTURE dated as of September 27, 2002 to that
certain Indenture, dated as of January 10, 2001 (the "Base Indenture" and,
together with the First Supplemental Indenture, the "Indenture"), between SEACOR
SMIT INC., a Delaware corporation (the "Company"), and U.S. BANK NATIONAL
ASSOCIATION (formerly known as U.S. Bank Trust National Association), a national
banking association (the "Trustee").
The Company and the Trustee have heretofore executed the Base
Indenture, a form of which has been filed with the Securities and Exchange
Commission under the Securities Act of 1933, as amended, as Exhibit 4.2 to the
Company's Registration Statement on Form S-3 (Registration No. 333-53326),
providing for the issuance from time to time of debt securities of the Company.
The Company and the Trustee are hereby supplementing the Base
Indenture pursuant to the provisions of Section 9.01(i) of the Base Indenture to
establish the form and terms and conditions of the debt securities issued
pursuant to this First Supplemental Indenture. The terms of this First
Supplemental Indenture shall supplement and be incorporated in their entirety
with the terms of the Base Indenture solely with respect to the debt securities
issued pursuant to this First Supplemental Indenture. To the extent any terms of
this First Supplemental Indenture are contrary to or duplicative of terms
contained in the Base Indenture, the terms of this First Supplemental Indenture
shall be deemed to supersede the Base Indenture solely with respect to the debt
securities issued pursuant to this First Supplemental Indenture.
Each party agrees as follows for the benefit of the other party and
for the equal and ratable benefit of the Holders of the Company's 57/8% Senior
Notes due October 1, 2012 (the "Notes"):
ARTICLE 1
Definitions and Incorporation by Reference
SECTION 1.01. Definitions.
So long as any of the Notes are outstanding, the following
definitions shall be applicable to the Notes, shall be included as defined terms
for all purposes under the Base Indenture with respect to the Notes and, to the
extent inconsistent with the definitions contained in Section 1.01 of the Base
Indenture, shall replace such definitions with respect to the Notes. Capitalized
terms used but not defined herein shall have the meaning ascribed to such terms
in the Base Indenture.
"Applicable Procedures" means, with respect to any transfer or
exchange of beneficial interests in a Global Note, the rules and procedures of
the Depositary that apply to such transfer and exchange.
"Business Day" means each day which is not a Legal Holiday.
"Capitalized Lease Obligation" means an obligation that is required
to be classified and accounted for as a capitalized lease for financial
reporting purposes in accordance with GAAP, and the amount of Indebtedness
represented by such obligation shall be the capitalized amount of such
obligation determined in accordance with such principles; and the Stated
Maturity thereof shall be the date of the last payment of rent or any other
amount due under such lease prior to the first date upon which such lease may be
terminated by the lessee without payment of a penalty.
"Capital Stock" of any Person means any and all shares, interests,
rights to purchase, warrants, options, participations or other equivalents of or
interests in (however designated) equity of such Person, including any Preferred
Stock, but excluding any debt securities convertible into such equity.
"Code" means the Internal Revenue Code of 1986, as amended.
"Consolidated Net Tangible Assets" means the total amount of assets
(less applicable reserves and other properly deductible items) after deducting
(1) all current liabilities (excluding the amount of those which are by their
terms extendable or renewable at the option of the obligor to a date more than
12 months after the date as of which the amount is being determined) and (2) all
goodwill, tradenames, trademarks, patents, unamortized debt discount and expense
and other like intangible assets, all as set forth on the most recent balance
sheet of the Company and its consolidated Subsidiaries and determined in
accordance with GAAP.
"Consolidated Net Worth" means the excess of assets over liabilities
of the Company and its consolidated Subsidiaries, plus Minority Interests, as
determined from time to time in accordance with GAAP.
"Currency Agreement" means in respect of a Person any foreign
exchange contract, currency swap agreement or other similar agreement designed
to protect such Person against fluctuations in currency values.
"Definitive Notes" means Notes substantially in the form of Exhibit A
attached hereto but that do not contain the Global Note Legend.
"Exchange Act" means the Securities Exchange Act of 1934, as amended.
"GAAP" means generally accepted accounting principles in the United
States of America as in effect as of the Issue Date, including those set forth
in (i) the opinions and pronouncements of the Accounting Principles Board of the
American Institute of Certified Public Accountants, (ii) statements and
pronouncements of the Financial Accounting Standards Board, (iii) such other
statements by such other entity as approved by a significant segment of the
accounting profession and (iv) the rules and regulations of the SEC governing
the inclusion of financial statements (including pro forma financial statements)
in periodic reports required to be filed pursuant to Section 13 of the Exchange
Act, including opinions and pronouncements in staff accounting bulletins and
similar written statements from the accounting staff of the SEC.
"Global Note" means, individually, each Note evidencing all or a part
of the Notes to and registered in the name of the Depositary, substantially in
the form attached hereto as Exhibit A.
"Holder" or "Noteholder" means the Person in whose name a Note is
registered on the Registrar's books.
"Incur" means issue, assume, Guarantee, incur or otherwise become
liable for; provided, however, that any Indebtedness or Capital Stock of a
Person existing at the time such Person becomes a Subsidiary (whether by merger,
consolidation, acquisition or otherwise) shall be deemed to be Incurred by such
Subsidiary at the time it becomes a Subsidiary. The term "Incurrence" when used
as a noun shall have a correlative meaning. The accretion of principal of a
non-interest bearing or other discount security shall be deemed the Incurrence
of Indebtedness.
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"Indebtedness" means, with respect to any Person, at any date, any of
the following, without duplication, (i) any liability, contingent or otherwise,
of such Person (A) for borrowed money (whether or not the recourse of the lender
is to the whole of the assets of such Person or only to a portion thereof), (B)
evidenced by a Note, bond, debenture or similar instrument or (C) for the
payment of money relating to a Capitalized Lease Obligation or other obligation
(whether issued or assumed) relating to the deferred purchase price of property;
(ii) all conditional sale obligations and all obligations under any title
retention agreement (even if the rights and remedies of the seller under such
agreement in the event of default are limited to repossession or sale of such
property), but excluding trade accounts payable arising in the ordinary course
of business; (iii) all obligations for the reimbursement of any obligor on any
letter of credit, banker's acceptance or similar credit transaction other than
entered into in the ordinary course of business; (iv) all indebtedness of others
secured by (or for which the holder of such indebtedness has an existing right,
contingent or otherwise, to be secured by) any Lien on any asset or property
(including, without limitation, leasehold interests and any other tangible or
intangible property) of such Person, whether or not such indebtedness is assumed
by such Person or is not otherwise such Person's legal liability; provided, that
if the obligations so secured have not been assumed in full by such Person or
are otherwise not such Person's legal liability in full, the amount of such
indebtedness for the purposes of this definition shall be limited to the lesser
of the amount of such indebtedness secured by such Lien or the fair market value
of the assets of the property securing such Lien; (v) all indebtedness of others
(including all interest and dividends on any Indebtedness or Preferred Stock of
any other Person for the payment of which is) guaranteed, directly or
indirectly, by such Person or that is otherwise its legal liability or which
such Person has agreed to purchase or repurchase or in respect of which such
Person has agreed contingently to supply or advance funds; and (vi) obligations
in respect of Currency Agreements and Interest Rate Agreements.
"Indirect Participant" means a Person who holds an interest through a
Participant.
"Interest Rate Agreement" means in respect of a Person any interest
rate swap agreement, interest rate cap agreement or other financial agreement or
arrangement designed to protect such Person against fluctuations in interest
rates.
"Issue Date" means the date on which the Notes are originally issued.
"Lien" means any mortgage, pledge, security interest, encumbrance,
lien, charge or adverse claim affecting title or resulting in an encumbrance
against real or personal property or a security interest of any kind (including,
without limitation, any conditional sale or other title retention agreement or
lease in the nature thereof or any filing or agreement to file a financing
statement as debtor under the Uniform Commercial Code or any similar statute
other than to reflect ownership by a third party or property leased to the
Company or any of its Subsidiaries under a lease that is not in the nature of a
conditional sale or title retention agreement).
"Minority Interest" means any shares of stock of any class of a
Subsidiary that are not owned by the Company or a Subsidiary.
"Notes" has the meaning assigned to it in the preamble to this First
Supplemental Indenture.
"Participant" means, with respect to the Depositary, a Person who has
an account with the Depositary.
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"Permitted Liens" means, with respect to any Person: (i) Liens
existing on the Issue Date; (ii) Liens on Property or assets of, or any shares
of stock of or secured debt of, any Person existing at the time such Person
becomes a Subsidiary of the Company or at the time such corporation is merged
into the Company or any of its Subsidiaries; (iii) Liens in favor of the Company
or any of its Subsidiaries; (iv) Liens in favor of governmental bodies to secure
progress or advance payments; (v) Liens securing industrial revenue or pollution
control bonds; (vi) Liens on Property to secure Indebtedness incurred for the
purpose of (a) financing all or any part of the purchase price of such Property
incurred prior to, at the time of, or within 180 days after, the acquisition of
such Property or (b) financing all or any part of the cost of construction,
improvement, development or expansion of any such Property; (vii) statutory
liens or landlords', carriers', warehouseman's, mechanics', suppliers',
materialmen's, repairmen's or other like Liens arising in the ordinary course of
business and 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 in conformity with GAAP shall have been
made therefor; (viii) Liens on current assets of Subsidiaries securing
Indebtedness of such Subsidiaries; and (ix) any extensions, substitutions,
replacements or renewals in whole or in part of a Lien (an "existing Lien")
enumerated in clauses (i) through (viii) above; provided, however, (A) that the
Lien may not extend beyond (1) the Property or Indebtedness subject to the
existing Lien and (2) improvements and construction on such Property (B) and the
Indebtedness secured by the Lien may not exceed the Indebtedness secured at the
time by the existing Lien.
"Preferred Stock", as applied to the Capital Stock of any Person,
means Capital Stock of any class or classes (however designated) which is
preferred as to the payment of dividends or distributions, or as to the
distribution of assets upon any voluntary or involuntary liquidation or
dissolution of such Person, over shares of Capital Stock of any other class of
such Person.
"principal" of a Note means the principal of the Note plus the
premium, if any, payable on the Note which is due or overdue or is to become due
at the relevant time.
"Principal Property" means any Property owned or leased by the
Company or any Subsidiary, the gross book value of which exceeds one percent of
Consolidated Net Worth.
"Property" of any Person means all types of real, personal, tangible,
intangible or mixed property owned by such Person whether or not included in the
most recent consolidated balance sheet of such Person and its Subsidiaries under
GAAP.
"Remaining Term" means the remaining term to maturity of the Notes,
calculated to the nearest 1/12th of a year.
"Sale and Leaseback Transaction" means any arrangement with any
Person pursuant to which the Company or any Subsidiary leases any Principal
Property that has been or is to be sold or transferred by the Company or the
Subsidiary to such Person, other than (1) temporary leases for a term, including
renewals at the option of the lessee, of not more than five years, (2) leases
between the Company and a Subsidiary or between Subsidiaries, (3) leases of
Principal Property executed by the time of, or within 12 months after the latest
of, the acquisition, the completion of construction or improvement, or the
commencement of commercial operation of the Principal Property, and (4)
arrangements pursuant to any provision of law with an effect similar to the
former Section 168(f)(8) of the Internal Revenue Code of 1954.
"SEC" means the Securities and Exchange Commission.
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"Significant Subsidiary" means any Subsidiary that would be a
"Significant Subsidiary" of the Company within the meaning of Rule 1-02 under
Regulation S-X promulgated by the SEC.
"Stated Maturity," when used with respect to any security or any
installment of interest thereon, means the date specified in such security as
the fixed date on which the principal of such security or such installment of
interest is due and payable.
"Subsidiary" of any Person means:
(i) any Person 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 trustees thereof
is at the time owned or controlled, directly or indirectly, by any Person or one
or more of the Subsidiaries of that Person or a combination thereof;
(ii) any partnership, joint venture or other Person in which such
Person or one or more of the Subsidiaries of that Person or a combination
thereof has the power to control by contract or otherwise the board of directors
or equivalent governing body or otherwise controls such entity.
"Treasury Yield" means a rate of interest per annum equal to the
weekly average yield to maturity of United States Treasury Notes that have a
constant maturity that corresponds to the Remaining Term. The Treasury Yield
shall be determined as of the third Business Day immediately preceding the
applicable Redemption Date.
"Trust Officer" means the Chairman of the Board, the President or any
other officer or assistant officer of the Trustee assigned by the Trustee to
administer its corporate trust matters.
"Uniform Commercial Code" means the New York Uniform Commercial Code
as in effect from time to time.
"U.S. Government Obligations" means direct obligations (or
certificates representing an ownership interest in such obligations) of the
United States of America (including any agency or instrumentality thereof) for
the payment of which the full faith and credit of the United States of America
is pledged and which are not callable at the issuer's option.
"Voting Stock" of a Person means all classes of Capital Stock or
other interests (including partnership interests) of such Person then
outstanding and normally entitled (without regard to the occurrence of any
contingency) to vote in the election of directors, managers or trustees thereof.
"Wholly Owned Subsidiary" means a Subsidiary all the Capital Stock of
which (other than directors' qualifying shares) is owned by the Company or one
or more Wholly Owned Subsidiaries.
SECTION 1.02. Other Definitions.
Term Defined in Section
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"Additional Notes"............................ 2.01
"covenant defeasance option".................. 8.01(a)
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"Event of Default"............................ 6.01
"Funded Indebtedness"......................... 4.04
"legal defeasance option"..................... 8.01(a)
"Legal Holiday"............................... 9.08
"Paying Agent"............................... 2.02
"Redemption Date"............................. 3.03
"Redemption Price"............................ 3.03
"Registrar"................................... 2.02
"Value"....................................... 4.04
SECTION 1.03. Incorporation by Reference of Trust Indenture Act. This
Indenture is subject to the mandatory provisions of the Trust Indenture Act (the
"TIA") which are incorporated by reference in and made a part of this Indenture.
The following TIA terms have the following meanings:
"Commission" means the SEC;
"indenture securities" means the Notes;
"indenture security holder" means a Noteholder;
"indenture to be qualified" means this Indenture;
"indenture trustee" or "institutional trustee" means the Trustee; and
"obligor" on the indenture securities means the Company and any other
obligor on the indenture securities.
All other TIA terms used in this Indenture that are defined by the
TIA, defined by TIA reference to another statute or defined by SEC rule have the
meanings assigned to them by such definitions.
SECTION 1.04. Rules of Construction. Unless the context otherwise
requires:
(1) a term has the meaning assigned to it;
(2) an accounting term not otherwise defined has the meaning assigned
to it in accordance with GAAP;
(3) "or" is not exclusive;
(4) "including" means including without limitation;
(5) words in the singular include the plural and words in the plural
include the singular; and
(6) all section references refer to sections of this First
Supplemental Indenture.
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ARTICLE 2
The Notes
SECTION 2.01. General.
(1) Designation of Series. Pursuant to the terms hereof and
Section 2.01 of the Base Indenture, there are hereby established the
Notes, known as the "57/8% Senior Notes due October 1, 2012," and
such Notes shall be deemed "Securities" for all purposes under the
Base Indenture.
(2) Form of Notes. The Notes and the Trustee's certificate
of authentication shall be substantially in the form of Exhibit A
hereto. The Notes may have notations, legends or endorsements
required by law, stock exchange rule or usage. Each Note shall be
dated the date of its authentication. The Notes shall be in
denominations of $1,000 and integral multiples thereof. The terms and
provisions contained in the Notes shall constitute, and are hereby
expressly made, a part of the Indenture and the Company and the
Trustee, by their execution and delivery of this First Supplemental
Indenture, expressly agree to such terms and provisions and to be
bound thereby. However, to the extent any provision of any Note
conflicts with the express provisions of the Indenture, the
provisions of the Indenture shall govern and be controlling.
(3) Additional Notes. So long as no Event of Default has
occurred and is continuing, the Company may issue additional Notes
(the "Additional Notes") under this First Supplemental Indenture from
time to time after the date hereof. The Notes and any Additional
Notes issued under this First Supplemental Indenture shall be treated
as a single class for all purposes under the Indenture, including,
without limitation, waivers, amendments and redemptions. The Notes
and any debt securities subsequently issued under the Base Indenture
shall be treated as distinct classes of debt securities for all
purposes under the Indenture, including, without limitation, waivers,
amendments and redemptions.
(4) Global Notes. Notes issued in global form shall be
substantially in the form of Exhibit A attached hereto (including the
Global Note Legend thereon and the "Schedule of Increases or
Decreases in Global Note" attached thereto). Notes issued in
definitive form shall be substantially in the form of Exhibit A
attached hereto (but without the Global Note Legend thereon and
without the "Schedule of Increases or Decreases in Global Note"
attached thereto). Each Global Note shall represent such of the
outstanding Notes as shall be specified therein and each shall
provide that it shall represent the aggregate principal amount of
outstanding Notes from time to time endorsed thereon and that the
aggregate principal amount of outstanding Notes represented thereby
may from time to time be reduced or increased, as appropriate, to
reflect exchanges and redemptions. Any endorsement of a Global Note
to reflect the amount of any increase or decrease in the aggregate
principal amount of outstanding 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 2.11 of the Base Indenture. The Company
initially appoints the Depositary Trust Company ("DTC") to act as
Depositary with respect to the Global Notes.
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SECTION 2.02. Registrar and Paying Agent. The Company shall maintain
an office or agency where Notes may be presented for registration of transfer or
for exchange (the "Registrar") and an office or agency where Notes may be
presented for payment (the "Paying Agent"). The Registrar shall keep a register
of the Notes and of their transfer and exchange. The Company may have one or
more co-registrars and one or more additional paying agents. The term "Paying
Agent" includes any additional paying agent.
The Company shall enter into an appropriate agency agreement with any
Registrar, Paying Agent or co-registrar not a party to this Indenture, which
shall incorporate the terms of the TIA. The agreement shall implement the
provisions of this Indenture that relate to such agent. The Company shall notify
the Trustee of the name and address of any such agent. If the Company fails to
maintain a Registrar or Paying Agent, the Trustee shall act as such and shall be
entitled to appropriate compensation therefor pursuant to Section 7.06 of the
Base Indenture. The Company or any of its domestically incorporated Wholly Owned
Subsidiaries may act as Paying Agent, Registrar, co-registrar or transfer agent.
The Company initially appoints the Trustee as Registrar and Paying
Agent in connection with the Notes.
SECTION 2.03. Paying Agent To Hold Money in Trust. Prior to each due
date of the principal and interest on any Note, the Company shall deposit with
the Paying Agent a sum sufficient to pay such principal and interest when so
becoming due. The Company shall require each Paying Agent (other than the
Trustee) to agree in writing that the Paying Agent shall hold in trust for the
benefit of Noteholders or the Trustee all money held by the Paying Agent for the
payment of principal of or interest on the Notes and shall notify the Trustee of
any default by the Company in making any such payment. If the Company or a
Subsidiary acts as Paying Agent, it shall segregate the money held by it as
Paying Agent and hold it as a separate trust fund. The Company at any time may
require a Paying Agent to pay all money held by it to the Trustee and to account
for any funds disbursed by the Paying Agent. Upon complying with this Section,
the Paying Agent shall have no further liability for the money delivered to the
Trustee.
SECTION 2.04. Noteholder 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 Noteholders. If the Trustee is not the Registrar,
the Company shall furnish to the Trustee, in writing at least five 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 Noteholders.
SECTION 2.05. Transfer and Exchange.
(a) Transfer and Exchange of Global Notes. A Global Note may not be
transferred as a whole except by the Depositary to a nominee of the Depositary,
by a nominee of the Depositary to the Depositary or to another nominee of the
Depositary, or by the Depositary or any such nominee to a successor Depositary
or a nominee of such successor Depositary. All Global Notes shall be exchanged
by the Company for Definitive Notes if (i) DTC notifies the Company that it is
unwilling or unable to continue as Depositary or if DTC ceases to be a clearing
agency registered or in good standing under the Exchange Act, or other
applicable statute or regulation, and a successor Depositary for such series is
not appointed by the Company within 90 days after the Company receives such
notice or becomes aware of such condition, as the case may be, (ii) the Company
discontinues use of the system of book-entry transfer through DTC or any
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successor depositary, or (iii) a Default has occurred and is continuing, Upon
the occurrence of either of the preceding events in (i), (ii) or (iii) above,
Definitive Notes shall be issued in such names as the Depositary shall instruct
the Trustee. Global Notes also may be exchanged or replaced, in whole or in
part, as provided in Sections 2.07 and 2.10 of the Base Indenture. Every Note
authenticated and delivered in exchange for, or in lieu of, a Global Note or any
portion thereof, pursuant to this Section 2.05 or Section 2.07 or 2.10 of the
Base Indenture shall be authenticated and delivered in the form of, and shall
be, a Global Note. A Global Note may not be exchanged for another Note other
than as provided in this Section 2.05(a); however, beneficial interests in a
Global Note may be transferred and exchanged as provided in Section 2.05(b) and
(c) 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. 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 Global Note may be transferred to
Persons who take delivery thereof in the form of a beneficial
interest in a Global Note. No written orders or instructions
shall be required to be delivered to the Registrar to effect
the transfers described in this Section 2.05(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 2.05(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 Definitive Note pursuant to Section 2.05(c) below 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 Definitive Note shall be registered to effect
the transfer or exchange referred to in (1) above. Upon
satisfaction of all of the requirements for transfer or
exchange of beneficial interests in Global Notes contained in
this Indenture and the Notes or otherwise applicable under the
Securities Act, the Trustee shall adjust the principal amount
of the relevant Global Note(s) pursuant to Section 2.05(f)
hereof.
(c) Transfer or Exchange of Beneficial Interests in Global Notes for
Definitive Notes. The holder of a beneficial interest in a Global Note may
exchange such beneficial interest for a Definitive Note or transfer such
beneficial interest to a Person who takes delivery thereof in the form of a
Definitive Note only upon satisfaction of the conditions set forth in Section
2.05(a)(i), (ii) or (iii) hereof, in which event such holder may request the
Trustee to, and the Trustee shall, cause the aggregate principal amount of the
applicable Global Note to be reduced accordingly pursuant to Section 2.05(f)
hereof, and the Company shall execute and the Trustee shall authenticate and
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deliver, in both cases in accordance with Section 2.04 of the Base Indenture, to
the Person designated in such request a Definitive Note in the appropriate
principal amount. Any Definitive Note issued in exchange for a beneficial
interest pursuant to this Section 2.05(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 Definitive Notes to the Persons in whose names such Notes are so
registered.
(d) Transfer and Exchange of Definitive Notes for Beneficial
Interests. A Holder of a Definitive Note may exchange such Note for a beneficial
interest in a Global Note or transfer such Definitive Notes to a Person who
takes delivery thereof in the form of a beneficial interest in a Global Note at
any time. Upon receipt of a request for such an exchange or transfer, the
Trustee shall cancel the applicable Definitive Note and increase or cause to be
increased the aggregate principal amount of one of the Global Notes pursuant to
Section 2.05(f) hereof.
(e) Transfer and Exchange of Definitive Notes for Definitive Notes.
Upon request by a Holder of Definitive Notes and such Holder's compliance with
the provisions of this Section 2.05(e), the Registrar shall register the
transfer or exchange of Definitive Notes. Prior to such registration of transfer
or exchange, the requesting Holder shall present or surrender to the Registrar
the Definitive Notes duly endorsed or accompanied by a written instruction of
transfer in form satisfactory to the Registrar duly executed by such Holder or
by its attorney, duly authorized in writing.
A Holder of Definitive Notes may transfer such Notes to a Person who
takes delivery thereof in the form of a Definitive Note. Upon receipt of a
request to register such a transfer, the Registrar shall register the Definitive
Notes pursuant to the instructions from the Holder thereof.
(f) Cancellation and/or Adjustment of Global Notes. At such time as
all beneficial interests in a particular Global Note have been exchanged for
Definitive Notes or a particular Global Note has been redeemed, repurchased or
canceled in whole and not in part, each such Global Note shall be returned to or
retained and canceled by the Trustee in accordance with Section 2.08 of the Base
Indenture. At any time prior to such cancellation, if any beneficial interest in
a Global Note is exchanged for or transferred to a Person who shall take
delivery thereof in the form of a beneficial interest in another Global Note or
for Definitive Notes, the principal amount of Notes represented by such Global
Note shall be reduced accordingly and an endorsement shall be made on such
Global Note by the Trustee or by the Depositary at the direction of the Trustee
to reflect such reduction; and if the beneficial interest is being exchanged for
or transferred to a Person who shall 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.
SECTION 2.06. Outstanding Notes. Notes outstanding at any time are
all Notes authenticated by the Trustee except for those canceled by it, those
delivered to it for cancellation and those described in this Section as not
outstanding. A Note does not cease to be outstanding because the Company or an
Affiliate of the Company holds the Note.
If a Note is replaced pursuant to Section 2.07, it ceases to be
outstanding unless the Trustee and the Company receive proof satisfactory to
them that the replaced Note is held by a bona fide purchaser.
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If the Paying Agent segregates and holds in trust, in accordance with
this Indenture, on a Redemption Date or maturity date, money sufficient to pay
all principal and interest payable on that date with respect to the Notes (or
portions thereof) to be redeemed or maturing, as the case may be, then on and
after that date, such Notes (or portions thereof) cease to be outstanding and
interest on them ceases to accrue.
SECTION 2.07. CUSIP Numbers. The Company in issuing the Notes may use
"CUSIP" numbers (if then generally in use) and, if so, the Trustee shall use
"CUSIP" numbers in notices of redemption as a convenience to Holders; provided,
however, that any such notice may state that no representation is made as to the
correctness of such numbers either as printed on the Notes or as contained in
any notice of a redemption and that reliance may be placed only on the other
identification numbers printed on the Notes, and any such redemption shall not
be affected by any defect in or omission of such numbers.
ARTICLE 3
Redemption
SECTION 3.01. Notices to Trustee. If the Company elects to redeem
Notes pursuant to Section 3.03, it shall notify the Trustee in writing of the
Redemption Date, the principal amount of Notes to be redeemed and the paragraph
of the Notes pursuant to which the redemption shall occur. The Company shall
give each notice to the Trustee provided for in this Section at least 60 days
before the Redemption Date unless the Trustee consents to a shorter period.
SECTION 3.02. Notice of Redemption. At least 30 days but not more
than 60 days before a date for redemption of Notes, the Company shall mail a
notice of redemption by first-class mail to each Holder of Notes to be redeemed
at such Holder's registered address.
The notice shall identify the Notes to be redeemed and shall state:
(1) the Redemption Date;
(2) the Redemption Price;
(3) the name and address of the Paying Agent;
(4) that Notes called for redemption must be surrendered to the
Paying Agent to collect the Redemption Price;
(5) if fewer than all the outstanding Notes are to be redeemed, the
identification and principal amounts of the particular Notes to be redeemed;
(6) that, unless the Company defaults in making such redemption
payment or the Paying Agent is prohibited from making such payment pursuant to
the terms of this Indenture, interest on Notes (or portion thereof) called for
redemption ceases to accrue on and after the Redemption Date;
(7) the paragraph of the Notes pursuant to which the Notes called for
redemption are being redeemed; and
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(8) that no representation is made as to the correctness or accuracy
of the CUSIP number, if any, listed in such notice or printed on the Notes.
At the Company's request, the Trustee shall give the notice of
redemption in the Company's name and at the Company's expense. In such event,
the Company shall provide the Trustee with the information required by this
Section. Failure to give notice or any defect in the notice to any Holder shall
not affect the validity of the notice to any other Holder.
SECTION 3.03. Optional Redemption. The Notes shall be redeemable at
any time, at the option of the Company, in whole or from time to time in part on
any date prior to maturity (the "Redemption Date") at a price equal to 100% of
the principal amount thereof plus accrued interest to the Redemption Date
(subject to the right of Holders of record on the relevant record date to
receive interest due on an interest payment date that is on or prior to the
Redemption Date) plus a Make-Whole Premium, if any (the "Redemption Price"). In
no event shall the Redemption Price ever be less than 100% of the principal
amount of the Notes plus accrued interest to the Redemption Date.
The amount of the Make-Whole Premium with respect to any Note (or
portion thereof) to be redeemed shall be equal to the excess, if any, of:
(1) the sum of the present values, calculated as of the
Redemption Date, of:
(a) each interest payment that, but for such
redemption, would have been payable on the Note (or portion
thereof) being redeemed on each interest payment date
occurring after the Redemption Date (excluding any accrued
interest for the period prior to the Redemption Date); and
(b) the principal amount that, but for such
redemption, would have been payable at the final maturity
of the Note (or portion thereof) being redeemed; over
(2) the principal amount of the Note (or portion thereof)
being redeemed.
The present values of interest and principal payments referred to in
clause (i) above shall be determined in accordance with generally accepted
principles of financial analysis. Such present values shall be calculated by
discounting the amount of each payment of interest or principal from the date
that each such payment would have been payable, but for the redemption, to the
Redemption Date at a discount rate equal to the Treasury Yield plus 12.5 basis
points.
The Make-Whole Premium shall be calculated by an independent
investment banking institution of national standing appointed by the Company;
provided, however, that if the Company fails to make such appointment at least
45 business days prior to the Redemption Date, or if the institution so
appointed is unwilling or unable to make such calculation, such calculation
shall be made by Xxxxxx Xxxxxxx & Co. Incorporated or, if such firm is unwilling
or unable to make such calculation, by an independent investment banking
institution of national standing appointed by the Trustee (in any such case, an
"Independent Investment Banker").
The weekly average yields of United States Treasury Notes shall be
determined by reference to the most recent statistical release published by the
Federal Reserve Bank of New York and designated "H.15(519) Selected Interest
Rates" or any successor release (the "H.15 Statistical Release"). If the H.15
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Statistical Release sets forth a weekly average yield for United States Treasury
Notes having a constant maturity that is the same as the Remaining Term, then
the Treasury Yield shall be equal to such weekly average yield. In all other
cases, the Treasury Yield shall be calculated by interpolation, on a
straight-line basis, between the weekly average yields on the United States
Treasury Notes that have a constant maturity closest to and greater than the
Remaining Term and the United States Treasury Notes that have a constant
maturity closest to and less than the Remaining Term and the United States
Treasury Notes that have a constant maturity closest to and less than the
Remaining Term (in each case as set forth in the H.15 Statistical Release). Any
weekly average yields so calculated by interpolation shall be rounded to the
nearest 1/100th of 1%, with any figure of 1/200th of 1% or above being rounded
upward. If weekly average yields for United States Treasury Notes are not
available in the H.15 Statistical Release or otherwise, then the Treasury Yield
shall be calculated by interpolation of comparable rates selected by the
Independent Investment Banker.
SECTION 3.04. Deposit of Redemption Price. On or before the
Redemption Date, the Company shall deposit with the Paying Agent (or, if the
Company or a Subsidiary is the Paying Agent, shall segregate and hold in trust)
money sufficient to pay the Redemption Price of and accrued interest on all
Notes to be redeemed on that date other than Notes or portions of Notes called
for redemption which have been delivered by the Company to the Trustee for
cancellation.
SECTION 3.05. No Sinking Fund. The Notes shall not be entitled to the
benefit of any sinking fund or mandatory redemption.
ARTICLE 4
Covenants
SECTION 4.01. SEC Reports. The Company shall file with the Trustee,
within 15 days after it files them with the SEC, copies of its annual report and
the information, documents and other reports which the Company is required to
file with the SEC pursuant to Section 13 or 15(d) of the Exchange Act.
Notwithstanding that the Company may not be required to remain subject to the
reporting requirements of Section 13 or 15(d) of the Exchange Act, the Company
shall continue to file with the SEC and provide the Trustee with such annual
reports and such information, documents and other reports as are specified in
Sections 13 and 15(d) of the Exchange Act and applicable to a U.S. corporation
subject to such Sections, such information, documents and reports to be so filed
and provided at the times specified for the filing of such information,
documents and reports under such Sections. The Company also shall comply with
the other provisions of TIA Section 314(a). Notwithstanding anything to the
contrary herein, the Trustee shall have no duty to review such documents for
purposes of determining compliance with any provisions of this Indenture.
SECTION 4.02. Corporate Existence. Subject to the provisions of
Article 5, the Company shall do or cause to be done all things necessary to and
shall cause each of its Subsidiaries to preserve and keep in full force and
effect its corporate existence, material rights (charter and statutory) and
franchises of the Company and each of its Subsidiaries; provided, however, that
the Company shall not be required to preserve any such material right or
franchise or the corporate existence of any of its Subsidiaries if (a) the
preservation thereof is no longer desirable in the conduct of the business of
the Company or such Subsidiary and (b) the loss thereof is not disadvantageous
in any material respect to the Holders of the Notes.
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SECTION 4.03. Limitation on Liens. Subject to Section 4.05, the
Company shall not, and shall not permit any of its Subsidiaries to, create,
incur or otherwise cause or suffer to exist or become effective any Liens of any
kind, except for Permitted Liens, upon any Principal Property or any shares of
stock or Indebtedness of any Subsidiary that owns or leases any Principal
Property (whether such Principal Property, shares of stock or Indebtedness are
now owned or hereafter acquired) unless all payments due under this Indenture
and the Notes are secured on an equal and ratable basis with the obligations so
secured until such time as such obligation is no longer secured by a Lien.
SECTION 4.04. Limitation on Sale and Leaseback Transactions. Subject
to Section 4.05, the Company shall not, and shall not permit any Subsidiary to,
enter into any Sale and Leaseback Transaction with respect to any Principal
Property, unless either (i) the Company or such Subsidiary would be entitled,
pursuant to the terms of Section 4.03, to incur Indebtedness secured by a Lien
on such property to be leased without equally and ratably securing the Notes, or
(ii) the Company, within 180 days after the effective date of the Sale and
Leaseback Transaction, applies an amount equal to the Value of such transaction
to the voluntary retirement of its Funded Indebtedness. For the purposes of this
Article, "Value" shall mean an amount equal to the greater of the net proceeds
of the sale of the property leased pursuant to such Sale and Leaseback
Transaction and the fair value, in the opinion of the Board of Directors, of the
leased property at the time of entering into such Sale and Leaseback
Transaction. For the purposes of this Article, "Funded Indebtedness" shall mean
Indebtedness (including the Notes) maturing by the terms thereof more than one
year after the original creation thereof.
SECTION 4.05. Exempted Indebtedness. Notwithstanding the provisions
contained in Sections 4.03 and 4.04, the Company and its Subsidiaries may issue,
assume, suffer to exist or guarantee Indebtedness which would otherwise be
subject to the limitation of Section 4.03, without securing the Notes, or may
enter into Sale and Leaseback Transactions which would otherwise be subject to
the limitation of Section 4.04, without retiring Funded Indebtedness, or enter
into a combination of such transactions, if the sum of (i) the principal amount
of all such Indebtedness and (ii) the aggregate Value of all such Sale and
Leaseback Transactions does not at any time exceed 15% of the Consolidated Net
Tangible Assets of the Company and its consolidated Subsidiaries.
SECTION 4.06. Waiver of Stay; Extension of Usury Laws. The Company
covenants (to the extent that it may lawfully do so) that it shall not at any
time insist upon, plead, or in any manner whatsoever claim or take the benefit
or advantage of, any stay or extension law or any usury law or other law that
would prohibit or forgive the Company from paying all or any portion of the
principal of, or interest on the Notes as contemplated herein or in the Notes,
wherever enacted, now or at any time hereafter in force, or that may affect the
covenants or the performance of this Indenture; and (to the extent that it may
lawfully do so) the Company hereby expressly waives all benefit or advantage of
any such law, and covenants that it shall not hinder, delay or impede the
execution of any power herein granted to the Trustee, but shall suffer and
permit the execution of every such power as though no such law had been enacted.
ARTICLE 5
Consolidation, Merger, Conveyance, Transfer or Lease
SECTION 5.01. Company May Consolidate, etc., Only on Certain Terms.
The Company may consolidate with or merge into any other Person or convey,
transfer or lease its properties and assets substantially as an entirety to any
14
Person, and may permit any Person to consolidate with or merge into, or convey,
transfer or lease its properties and assets substantially as an entirety to, the
Company, unless:
(1) in case the Company shall consolidate with or merge
into another Person or convey, transfer or lease its properties and
assets substantially as an entirety to any Person, the Person formed
by such consolidation or into which the Company is merged or the
Person which acquires by conveyance or transfer, or which leases, the
properties and assets of the Company substantially as an entirety
shall be organized under the laws of any United States jurisdiction;
(2) any such successor, transferee or lessee (if other than
the Company) shall expressly assume, by an indenture supplemental
hereto, executed and delivered to the Trustee, in form satisfactory
to the Trustee, the due and punctual payment of the principal of and
interest on all the Notes and the performance or observance of every
covenant of this Indenture on the part of the Company to be performed
or observed;
(3) immediately after giving effect to such transaction,
no Default shall have occurred and be continuing; and
(4) the Company has delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that such
consolidation, merger, conveyance, transfer or lease and, if a
supplemental indenture is required in connection with such
transaction, such supplemental indenture comply with this Article and
that all conditions precedent herein provided for relating to such
transaction have been complied with.
SECTION 5.02. Successor Substituted. Upon any consolidation of the
Company with, or merger of the Company into, any other Person or any conveyance,
transfer or lease of the properties and assets of the Company substantially as
an entirety in accordance with Section 5.01, the successor Person formed by such
consolidation or into which the Company is merged or to which such conveyance,
transfer or lease is made shall succeed to, and be substituted for, 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,
and thereafter, except in the case of a lease, the predecessor Person (if still
in existence) shall be released from its obligations and covenants under this
Indenture and the Notes.
ARTICLE 6
Defaults and Remedies
SECTION 6.01. Events of Default. "Event of Default", wherever used
herein, means any one of the following events:
(1) default in the payment of any interest upon any Note
for 30 days or more after becomes due; or
(2) default in the payment of the principal of any Note
at its Stated Maturity; or
(3) default in the performance, or breach, of any other
covenant or warranty of the Company in this Indenture, and
continuance of such default or breach for a period of 60 days after
there has been given, by registered or certified mail, to the Company
15
by the Trustee or to the Company and the Trustee by the Holders of at
least 25% in principal amount of the outstanding Notes a written
notice specifying such default or breach and requiring it to be
remedied and stating that such notice is a "Notice of Default"
hereunder; or
(4) failure to pay when due the principal of, or
acceleration of, any Indebtedness for money borrowed by the Company
or a Subsidiary, which Indebtedness, individually or in the
aggregate, is in excess of $25.0 million principal amount, without
such Indebtedness having been discharged, or such acceleration having
been rescinded or annulled, within a period of 10 days after there
shall have been given, by registered or certified mail, to the
Company by the Trustee or to the Company and the Trustee by the
Holders of at least 25% in principal amount of the outstanding Notes
a written notice specifying such default and requiring the Company to
cause such Indebtedness to be discharged or cause such acceleration
to be rescinded or annulled and stating that such notice is a "Notice
of Default" hereunder; or
(5) the entry by a court having jurisdiction in the
premises of (A) a decree or order for relief in respect of the
Company or a Significant Subsidiary in an involuntary case or
proceeding under any applicable Federal or State bankruptcy,
insolvency, reorganization or other similar law or (B) a decree or
order adjudging the Company or a Significant Subsidiary a bankrupt or
insolvent, or approving as properly filed a petition seeking
reorganization, arrangement, adjustment or composition of or in
respect of the Company or a Significant Subsidiary under any
applicable Federal or State law, or appointing a custodian, receiver,
liquidator, assignee, trustee, sequestrator or other similar official
of the Company or a Significant Subsidiary or of any substantial part
of their respective properties, or ordering the winding up or
liquidation of the affairs of the Company or a Significant
Subsidiary, and the continuance of any such decree or order for
relief or any such other decree or order unstayed and in effect for a
period of 60 consecutive days; or
(6) the commencement by the Company or a Significant
Subsidiary of a voluntary case or proceeding under any applicable
Federal or State bankruptcy, insolvency, reorganization or other
similar law or of any other case or proceeding to be adjudicated a
bankrupt or insolvent, or the consent by either the Company or a
Significant Subsidiary to the entry of a decree or order for relief
in respect of the Company or a Significant Subsidiary in an
involuntary case or proceeding under any applicable Federal or State
bankruptcy, insolvency, reorganization or other similar law or to the
commencement of any bankruptcy or insolvency case or proceeding
against either the Company or a Significant Subsidiary, or the filing
by either the Company or a Significant Subsidiary of a petition or
answer or consent seeking reorganization or relief under any
applicable Federal or State law, or the consent by either the Company
or a Significant Subsidiary to the filing of such petition or to the
appointment of or taking possession by a custodian, receiver,
liquidator, assignee, trustee, sequestrator or other similar official
of the Company or a Significant Subsidiary or of any substantial part
of their respective properties, or the making by either the Company
or a Significant Subsidiary of an assignment for the benefit of
creditors, or the admission by either the Company or a Significant
Subsidiary in writing of an inability to pay the debts of either the
Company or a Significant Subsidiary generally as they become due, or
16
the taking of corporate action by the Company or a Significant
Subsidiary in furtherance of any such action.
SECTION 6.02. Acceleration of Maturity; Rescission and Annulment. If
an Event of Default (other than an Event of Default specified in Section 6.01(5)
or 6.01(6)) shall have occurred and is continuing, then in every such case,
either the Trustee or the Holders of not less than 25% in principal amount of
the outstanding Notes may declare the principal of all the Notes to be due and
payable immediately, by a notice in writing to the Company (and to the Trustee
if given by Holders), and upon any such declaration such principal shall become
immediately due and payable. If an Event of Default specified in Section 6.01(5)
or 6.01(6) shall have occurred, the principal of all the Notes shall
automatically, and without any declaration or other action on the part of the
Trustee or any Holder, become immediately due and payable.
At any time after such a declaration of acceleration has been made
and before a judgment or decree for payment of the money due has been obtained
by the Trustee as hereinafter in this Article 6 provided, the Holders of not
less than a majority in principal amount of the outstanding Notes, by written
notice to the Company and the Trustee, may rescind and annul such declaration
and its consequences if
(1) the Company has paid or deposited with the Trustee a
sum sufficient to pay
(A) all overdue interest on all Notes,
(B) the principal of any Notes which have become
due otherwise than by such declaration of acceleration and
interest thereon at the rate borne by the Notes,
(C) to the extent that payment of such interest
is lawful, interest upon overdue interest at the rate borne
by the Notes, and
(D) all sums paid or advanced by the Trustee
hereunder and the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and
counsel; and
(2) all Events of Default, other than the non-payment of
the principal of Notes which have become due solely by such
declaration of acceleration, have been cured or waived as provided in
Section 6.06.
No such rescission shall affect any subsequent default or impair any right
consequent thereon.
SECTION 6.03. Collection of Indebtedness and Suits for Enforcement by
Trustee. If
(1) default is made in the payment of any interest on any
Note when such interest becomes due and payable and such default
continues for a period of 30 days, or
(2) default is made in the payment of the principal of any
Note at the Stated Maturity thereof, the Trustee is authorized to
recover judgment in its own name and as trustee of an express trust
against the Company for the whole amount then due and payable on such
Notes for principal and interest, and, to the extent that payment of
such interest shall be legally enforceable, interest on any overdue
principal and on any overdue interest, at the rate borne by the
17
Notes, and, in addition thereto, such further amount as shall be
sufficient to cover the costs and expenses of collection, including
the reasonable compensation, expenses, disbursements and advances of
the Trustee, its agents and counsel.
If an Event of Default occurs and is continuing, the Trustee may in
its discretion proceed to protect and enforce its rights and the rights of the
Holders by such appropriate judicial proceedings as the Trustee shall deem most
effectual to protect and enforce any such rights, whether for the specific
enforcement of any covenant or agreement in this Indenture or in aid of the
exercise of any power granted herein, or to enforce any other proper remedy.
SECTION 6.04. Restoration of Rights and Remedies. If the Trustee or
any Holder has instituted any proceeding to enforce any right or remedy under
this Indenture and such proceeding has been discontinued or abandoned for any
reason, or has been determined adversely to the Trustee or to such Holder, then
and in every such case, subject to any determination in such proceeding, the
Company, the Trustee and the Holders shall be restored severally and
respectively to their former positions hereunder and thereafter all rights and
remedies of the Trustee and the Holders shall continue as though no such
proceeding had been instituted.
SECTION 6.05. Control by Holders. The Holders of not less than a
majority in principal amount of the Notes may direct the time, method and place
of conducting any proceedings for any remedy available to the Trustee or of
exercising any trust or power conferred on the Trustee; provided, however, that
the Trustee may refuse to follow any direction that conflicts with law or this
Indenture or, subject to Section 7.01 of the Base Indenture, that the Trustee
determines is unduly prejudicial to the rights of other Noteholders or would
involve the Trustee in personal liability. The Trustee may take any other action
deemed proper by the Trustee that is not inconsistent with such direction. Prior
to taking any action hereunder, the Trustee shall be entitled to indemnification
satisfactory to it by such requesting Holders in its sole discretion against all
losses and expenses caused by taking or not taking such action.
SECTION 6.06. Waiver of Past Defaults. The Holders of not less than a
majority in principal amount of the outstanding Notes may on behalf of the
Holders of all the Notes waive any past default hereunder and its consequences,
except a default
(1) in the payment of the principal of or interest on any
Note, or
(2) in respect of a covenant or provision hereof which
under Article 9 cannot be modified or amended without the consent of
the Holder of each Outstanding Note affected.
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.
ARTICLE 7
Amendments
SECTION 7.01. Without Consent of Holders. The Company and the Trustee
may amend this Indenture or the Notes without notice to or consent of any Note
holder:
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(1) to cure any ambiguity, omission, defect or
inconsistency;
(2) to comply with Article 5;
(3) to provide for uncertificated Notes in addition to or
in place of certificated Notes; provided, however, that the
uncertificated Notes are issued in registered form for purposes of
Section 163(f) of the Code or in a manner such that the
uncertificated Notes are described in Section 163(f)(2)(B) of the
Code;
(4) to add guarantees with respect to the Notes;
(5) to secure the Notes;
(6) to add to the covenants of the Company for the
benefit of the Holders or to surrender any right or power herein
conferred upon the Company;
(6) to comply with any requirements of the SEC in
connection with qualifying, or maintaining the qualification of, this
Indenture under the TIA; or
(7) to make any change that does not adversely affect the
rights of any Noteholder.
After an amendment under this Section becomes effective, the Company
shall mail to Noteholders a notice briefly describing such amendment. The
failure to give such notice to all Noteholders, or any defect therein, shall not
impair or affect the validity of an amendment under this Section.
SECTION 7.02. With Consent of Holders. The Company and the Trustee
may amend this Indenture or the Notes without notice to any Noteholder but with
the written consent of the Holders of at least a majority in principal amount of
the Notes then outstanding (including consents obtained in connection with a
tender offer or exchange for the Notes). However, without the consent of each
Noteholder affected thereby, an amendment may not:
(1) reduce the amount of Notes whose Holders must consent
to an amendment;
(2) reduce the rate of or extend the time for payment of
interest on any Note;
(3) reduce the principal of or extend the Stated Maturity
of any Note;
(4) reduce the amount payable upon the redemption of any
Note or change the time at which any Note may be redeemed in
accordance with Article 3;
(5) make any Note payable in money other than that stated
in the Note;
(6) impair the right of any Holder to receive payment of
principal of and interest on such Holder's Notes on or after the
Stated Maturity therefor or to institute suit for the enforcement of
any payment on or with respect to such Holder's Notes; or
(6) make any change in Section 6.06 or the second sentence
of this Section.
19
It shall not be necessary for the consent of the Holders under this
Section to approve the particular form of any proposed amendment, but it shall
be sufficient if such consent approves the substance thereof.
After an amendment under this Section becomes effective, the Company
shall mail to Noteholders a notice briefly describing such amendment. The
failure to give such notice to all Noteholders, or any defect therein, shall not
impair or affect the validity of an amendment under this Section.
SECTION 7.03. Compliance with Trust Indenture Act. Every amendment to
this First Supplemental Indenture or the Notes shall comply with the TIA as then
in effect.
SECTION 7.04. Revocation and Effect of Consents and Waivers. A
consent to an amendment or a waiver by a Holder of a Note shall bind the Holder
and every subsequent Holder of that Note or portion of the Note that evidences
the same debt as the consenting Holder's Note, even if notation of the consent
or waiver is not made on the Note. However, any such Holder or subsequent Holder
may revoke the consent or waiver as to such Holder's Note or portion of the Note
if the Trustee receives the notice of revocation before the date the amendment
or waiver becomes effective. After an amendment or waiver becomes effective, it
shall bind every Noteholder. An amendment or waiver becomes effective upon the
execution of such amendment or waiver by the Trustee.
The Company may, but shall not be obligated to, fix a record date for
the purpose of determining the Noteholders entitled to give their consent or
take any other action described above or required or permitted to be taken
pursuant to this Indenture. If a record date is fixed, then notwithstanding the
immediately preceding paragraph, those Persons who were Noteholders at such
record date (or their duly designated proxies), and only those Persons, shall be
entitled to give such consent or to revoke any consent previously given or to
take any such action, whether or not such Persons continue to be Holders after
such record date. No such consent shall be valid or effective for more than 120
days after such record date.
SECTION 7.05. Notation on or Exchange of Notes. If an amendment
changes the terms of a Note, the Trustee may require the Holder of the Note to
deliver it to the Trustee. The Trustee may place an appropriate notation on the
Note regarding the changed terms and return it to the Holder. Alternatively, if
the Company or the Trustee so determines, the Company in exchange for the Note
shall issue and the Trustee shall authenticate a new Note that reflects the
changed terms. Failure to make the appropriate notation or to issue a new Note
shall not affect the validity of such amendment.
SECTION 7.06. Trustee To Sign Amendments. The Trustee shall sign any
amendment authorized pursuant to this Article 7 if the amendment does not
adversely affect the rights, duties, liabilities or immunities of the Trustee,
in which case the Trustee shall not be required to sign such amendment. In
signing such amendment the Trustee shall be entitled to receive indemnity
reasonably satisfactory to it and to receive, and (subject to Section 7.01 of
the Base Indenture) shall be fully protected in relying upon, an Officers'
Certificate and an Opinion of Counsel stating that such amendment is authorized
or permitted by this Indenture.
SECTION 7.07. Payment for Consent. Neither the Company nor any
Affiliate of the Company shall, directly or indirectly, pay or cause to be paid
any consideration, whether by way of interest, fee or otherwise, to any Holder
for or as an inducement to any consent, waiver or amendment of any of the terms
20
or provisions of this Indenture or the Notes unless such consideration is
offered to be paid to all Holders that so consent, waive or agree to amend in
the time frame set forth in solicitation documents relating to such consent,
waiver or agreement.
ARTICLE 8
Discharge of Indenture; Defeasance
SECTION 8.01. Defeasance. (a) Subject to Sections 8.01(b) and 8.02,
the Company at any time may terminate (i) all its obligations under the Notes
and this First Supplemental Indenture ("legal defeasance option") or (ii) its
obligations under Sections 4.01, 4.03, 4.04 and 4.05, and the operation of
Sections 5.01(3), 5.01(4), 6.01(3), 6.01(4), 6.01(5) and 6.01(6) (but, in the
case of Sections 6.01(5) and (6), with respect only to Significant Subsidiaries)
("covenant defeasance option"). The Company may exercise its legal defeasance
option notwithstanding its prior exercise of its covenant defeasance option.
If the Company exercises its legal defeasance option, payment of the
Notes may not be accelerated because of an Event of Default with respect
thereto. If the Company exercises its covenant defeasance option, payment of the
Notes may not be accelerated because of failure to comply with Sections 5.01(3)
or 5.01(4) or because of an Event of Default specified in Sections 6.01(3),
6.01(4), 6.01(5) and 6.01(6) (but, in the case of Sections 6.01(5) and (6), with
respect only to Significant Subsidiaries).
Upon satisfaction of the conditions set forth herein and upon request
of the Company, the Trustee shall acknowledge in writing the discharge of those
obligations that the Company terminates.
(b) Notwithstanding clauses (a) above, the Company's obligations
pursuant to Sections 2.02, 2.03, 2.04, 2.05, 2.06 and this Article 8 shall
survive until the Notes have been paid in full. Thereafter, the Company's
obligations pursuant to Sections 8.04 and 8.05 shall survive.
SECTION 8.02. Conditions to Defeasance. The Company may exercise its
legal defeasance option or its covenant defeasance option only if:
(1) the Company irrevocably deposits in trust with the
Trustee money or U.S. Government Obligations for the payment of
principal of and interest on the Notes to maturity or redemption,
as the case may be;
(2) the Company delivers to the Trustee a certificate from
a nationally recognized firm of independent accountants expressing
their opinion that the payments of principal and interest when due
and without reinvestment on the deposited U.S. Government Obligations
plus any deposited money without investment shall provide cash at
such times and in such amounts as shall be sufficient to pay
principal and interest when due on all the Notes to maturity or
redemption, as the case may be;
(3) 123 days pass after the deposit is made and during the
123-day period no Default specified in Sections 6.01(5) or (6) with
respect to the Company occurs which is continuing at the end of the
period;
21
(4) the deposit shall not constitute a default under any
other agreement binding on the Company;
(5) the Company delivers to the Trustee an Opinion of
Counsel to the effect that the trust resulting from the deposit does
not constitute, or is qualified as, a regulated investment company
under the Investment Company Act of 1940;
(6) the Company shall have delivered to the Trustee an
Opinion of Counsel to the effect that the Noteholders shall not
recognize income, gain or loss for Federal income tax purposes as a
result of such defeasance and shall be subject to Federal income tax
on the same amounts, in the same manner and at the same times as
would have been the case if such defeasance had not occurred, and, in
the case of legal defeasance only, such Opinion of Counsel shall
confirm that it is based upon (i) the Company's receipt from, or a
publication by, a ruling by Internal Revenue Service, or (ii) a
change in the applicable Federal income tax law subsequent to the
date of this First Supplemental Indenture; and
(7) the Company delivers to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that all
conditions precedent to the defeasance and discharge of the Notes as
contemplated by this Article 8 have been complied with.
Before or after a deposit, the Company may make arrangements
satisfactory to the Trustee for the redemption of Notes at a future date in
accordance with Article 3.
SECTION 8.03. Application of Trust Money. The Trustee shall hold in
trust money or U.S. Government Obligations deposited with it pursuant to this
Article 8. It shall apply the deposited money and the money from U.S. Government
Obligations through the Paying Agent and in accordance with this Indenture to
the payment of principal of and interest on the Notes.
SECTION 8.04. Repayment to Company. The Trustee and the Paying Agent
shall promptly turn over to the Company upon request any excess money or
securities held by them at any time.
Subject to any applicable abandoned property law, the Trustee and the
Paying Agent shall pay to the Company upon request any money held by them for
the payment of principal or interest that remains unclaimed for two years, and,
thereafter, Noteholders entitled to the money must look to the Company for
payment as general creditors.
SECTION 8.05. Indemnity for Government Obligations. The Company shall
pay and shall indemnify the Trustee against any tax, fee or other charge imposed
on or assessed against deposited U.S. Government Obligations or the principal
and interest received on such U.S. Government Obligations.
SECTION 8.06. Reinstatement. If the Trustee or Paying Agent is unable
to apply any money or U.S. Government Obligations in accordance with this
Article 8 by reason of any legal proceeding or by reason of any order or
judgment of any court or governmental authority enjoining, restraining or
otherwise prohibiting such application, the Company's obligations under this
Indenture and the Notes shall be revived and reinstated as though no deposit had
occurred pursuant to this Article 8 until such time as the Trustee or Paying
Agent is permitted to apply all such money or U.S. Government Obligations in
accordance with this Article 8; provided, however, that, if the Company has made
22
any payment of interest on or principal of any Notes because of the
reinstatement of its obligations, the Company shall be subrogated to the rights
of the Holders of such Notes to receive such payment from the money or U.S.
Government Obligations held by the Trustee or Paying Agent.
ARTICLE 9
Miscellaneous
SECTION 9.01. Trust Indenture Act Controls. If any provision of this
Indenture limits, qualifies or conflicts with another provision which is
required to be included in this Indenture by the TIA, the required provision
shall control.
SECTION 9.02. Notices. Any notice or communication shall be in
writing and delivered in person or mailed by first-class mail addressed as
follows:
if to the Company:
SEACOR SMIT Inc.
0000 Xxxxxx xx xxx Xxxxxxxx
00xx Xxxxx
Xxx Xxxx, XX 00000
Fax:.(000) 000-0000
Attention of Xxxxxxx Xxxxx
with a copy to:
Weil, Gotshal & Xxxxxx LLP
000 Xxxxx Xxxxxx Xxx Xxxx, XX 00000
Fax:.(000) 000-0000
Attention of Xxxxx Xxxxxxx, Esq.
if to the Trustee:
U.S. Bank National Association
000 Xxxx Xxxxx Xxxxxx
Xx. Xxxx, XX 00000
Attention of Corporate Trust Department
The Company or the Trustee by notice to the other may designate
additional or different addresses for subsequent notices or communications.
Any notice or communication mailed to a Noteholder shall be mailed to
the Noteholder at the Noteholder's address as it appears on the registration
books of the Registrar and shall be sufficiently given if so mailed within the
time prescribed.
Failure to mail a notice or communication to a Noteholder or any
defect in it shall not affect its sufficiency with respect to other Noteholders.
If a notice or communication is mailed in the manner provided above, it is duly
given, whether or not the addressee receives it.
23
SECTION 9.03. Communication by Holders with Other Holders.
Noteholders may communicate pursuant to TIA ss. 312(b) with other Noteholders
with respect to their rights under this Indenture or the Notes. The Company, the
Trustee, the Registrar and anyone else shall have the protection of TIA ss.
312(c).
SECTION 9.04. Certificate and Opinion as to Conditions Precedent.
Upon any request or application by the Company to the Trustee to take or refrain
from taking any action under this Indenture, the Company shall furnish to the
Trustee:
(1) an Officers' Certificate in form and substance
reasonably satisfactory to the Trustee stating that, in the opinion
of the signers, all conditions precedent, if any, provided for in
this Indenture relating to the proposed action have been complied
with; and
(2) an Opinion of Counsel in form and substance reasonably
satisfactory to the Trustee stating that, in the opinion of such
counsel, all such conditions precedent have been complied with.
SECTION 9.05. Statements Required in Certificate or Opinion. Each
certificate or opinion with respect to compliance with a covenant or condition
provided for in this Indenture shall include:
(1) a statement that the individual making such
certificate or opinion has read such covenant or condition;
(2) 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;
(3) a statement that, in the opinion of such individual, he
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 complied with; and
(4) a statement as to whether or not, in the opinion of
such individual, such covenant or condition has been complied with.
SECTION 9.06. When Notes Disregarded. In determining whether the
Holders of the required principal amount of Notes have concurred in any
direction, waiver or consent, Notes owned by the Company or by any Person
directly or indirectly controlling or controlled by or under direct or indirect
common control with the Company shall be disregarded and deemed not to be
outstanding, except that, for the purpose of determining whether the Trustee
shall be protected in relying on any such direction, waiver or consent, only
Notes which the Trustee knows are so owned shall be so disregarded. Also,
subject to the foregoing, only Notes outstanding at the time shall be considered
in any such determination.
SECTION 9.07. Rules by Trustee, Paying Agent and Registrar. The
Trustee may make reasonable rules for action by or a meeting of Noteholders. The
Registrar and the Paying Agent may make reasonable rules for their functions.
24
SECTION 9.08. Legal Holidays. A "Legal Holiday" is a Saturday, a
Sunday or a day on which banking institutions are not required to be open in the
State of New York. If a payment date is a Legal Holiday, payment shall be made
on the next succeeding day that is not a Legal Holiday, and no interest shall
accrue for the intervening period. If a regular record date is a Legal Holiday,
the record date shall not be affected.
SECTION 9.09. Governing Law. This Indenture and the Notes shall be
governed by, and construed in accordance with, the laws of the State of New York
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.
SECTION 9.10. No Recourse Against Others. A director, officer,
employee or stockholder, as such, of the Company shall not have any liability
for any obligations of the Company under the Notes or this Indenture or for any
claim based on, in respect of or by reason of such obligations or their
creation. By accepting a Note, each Noteholder shall waive and release all such
liability. The waiver and release shall be part of the consideration for the
issue of the Notes.
SECTION 9.11. Successors. All agreements of the Company in this
Indenture and the Notes shall bind its successors. All agreements of the Trustee
in this Indenture shall bind its successors.
SECTION 9.12. Multiple 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. One signed copy is enough to prove this
Indenture.
SECTION 9.13. Table of Contents; Headings. The table of contents,
cross-reference sheet and headings of the Articles and Sections of this
Indenture have been inserted for convenience of reference only, are not intended
to be considered a part hereof and shall not modify or restrict any of the terms
or provisions hereof.
25
IN WITNESS WHEREOF, the parties have caused this Indenture to be duly
executed as of the date first written above.
SEACOR SMIT INC.,
by /s/ Xxxxxxx Xxxxx
----------------------------------------
Name: Xxxxxxx Xxxxx
Title: Executive Vice President
Chief Financial Officer
and Secretary
U.S. BANK NATIONAL ASSOCIATION,
by /s/ Xxxxxxx X. Xxxxxxxx
----------------------------------------
Name: Xxxxxxx X. Xxxxxxxx
Title: Vice President
26
Exhibit A
[FORM OF FACE OF NOTE]
[Global Note Legend]
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE
OF THE DEPOSITARY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), NEW YORK, NEW
YORK, 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 IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY
PAYMENT IS MADE TO CEDE & CO., OR TO SUCH OTHER ENTITY AS IS 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.
TRANSFERS OF THIS GLOBAL SECURITY SHALL BE LIMITED TO TRANSFERS IN
WHOLE, BUT NOT IN PART, TO NOMINEES OF DTC OR TO A SUCCESSOR THEREOF OR SUCH
SUCCESSOR'S NOMINEE AND TRANSFERS OF PORTIONS OF THIS GLOBAL SECURITY SHALL BE
LIMITED TO TRANSFERS MADE IN ACCORDANCE WITH THE RESTRICTIONS SET FORTH IN THE
INDENTURE REFERRED TO ON THE REVERSE HEREOF.
A-1
No. CUSIP No.:000000XX0
57/8% Senior Notes Due October 1, 2012
SEACOR SMIT INC., a Delaware corporation, promises to pay to Cede &
Co., or its registered assigns, the principal sum of Two Hundred Million Dollars
($200,000,000) on October 1, 2012.
Interest Payment Dates: April 1 and October 1, commencing April 1,
2003.
Record Dates: March 15 and September 15.
Additional provisions of this Note are set forth on the other side of
this Note.
SEACOR SMIT Inc.,
by:
------------------------------------
Xxxxxxx Xxxxx
Executive Vice President and Chief
Financial Officer
by:
------------------------------------
Xxxx Xxxxxxxxx
Vice President and Treasurer
Dated: September 27, 2002
TRUSTEE'S CERTIFICATE OF
AUTHENTICATION
U.S. BANK NATIONAL ASSOCIATION,
as Trustee, certifies that this
is one of the Notes referred
to in the Indenture.
by:
-------------------------------------
Authorized Signatory
A-2
[FORM OF REVERSE SIDE OF NOTE]
57/8% Senior Notes Due October 1, 2012
1. INTEREST. SEACOR SMIT Inc., a Delaware corporation (such
corporation, and its successors and assigns under the Indenture hereinafter
referred to, being herein called the "Company"), promises to pay interest on the
principal amount of this Note at the rate per annum shown above. The Company
shall pay interest semiannually on April 1 and October 1 of each year,
commencing April 1, 2003. Interest on the Notes shall accrue from the most
recent date to which interest has been paid or, if no interest has been paid,
from September 27, 2002. Interest shall be computed on the basis of a 360-day
year of twelve 30-day months. The Company shall pay interest on overdue
principal at the rate borne by the Notes plus 1% per annum, and it shall pay
interest on overdue installments of interest at the same rate to the extent
lawful.
2. METHOD OF PAYMENT. The Company shall pay interest on the Notes
(except defaulted interest) 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 Notes are canceled after the record date and on or
before the interest payment date. Holders must surrender Notes to a Paying Agent
to collect principal payments. The Company shall pay principal and interest in
money of the United States that at the time of payment is legal tender for
payment of public and private debts. Payments in respect of the Notes (including
principal, premium and interest) shall be made by wire transfer of immediately
available funds to the accounts specified by the Holders thereof or, if no such
account is specified, by mailing a check to the registered address of each
Holder thereof.
3. PAYING AGENT AND REGISTRAR. Initially, U.S. Bank National
Association (formerly known as U.S. Bank Trust National Association), a national
banking association ("Trustee"), shall act as Paying Agent and Registrar. The
Company may appoint and change any Paying Agent, Registrar or co-registrar
without notice. The Company or any of its domestically incorporated Wholly Owned
Subsidiaries may act as Paying Agent, Registrar or co-registrar.
4. INDENTURE. The Company issued the Notes under the First
Supplemental Indenture, dated as of September 27, 2002, to a Base Indenture
dated as of January 10, 2001 (collectively, the "Indenture"), between the
Company 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 (15 U.S.C. xx.xx. 77aaa-77bbbb) as in effect on the date
of the Base Indenture (the "Act"). Terms defined in the Indenture and not
defined herein have the meanings ascribed thereto in the Indenture. The Notes
are subject to all such terms, and Noteholders are referred to the Indenture and
the Act for a statement of those terms.
5. OPTIONAL REDEMPTION. The Notes shall be redeemable at any time, at
the option of the Company, in whole or from time to time in part, upon not less
than 30 and not more than 60 days' notice mailed to each Holder to be redeemed
at the Holder's address appearing in the books of the Registrar, on any date
prior to maturity (the "Redemption Date") at a price equal to 100% of the
principal amount thereof plus accrued interest to the Redemption Date (subject
to the right of Holders of record on the relevant record date to receive
interest due on an interest payment date that is on or prior to the Redemption
Date) plus a Make-Whole Premium, if any (the "Redemption Price"). In no event
shall the Redemption Price ever be less than 100% of the principal amount of the
Notes plus accrued interest to the Redemption Date.
A-3
The amount of the Make-Whole Premium with respect to any Note (or
portion thereof) to be redeemed shall be equal to the excess, if any, of:
(1) the sum of the present values, calculated as of the
Redemption Date, of:
(a) each interest payment that, but for such
redemption, would have been payable on the Note (or portion
thereof) being redeemed on each interest payment date
occurring after the Redemption Date (excluding any accrued
interest for the period prior to the Redemption Date); and
(b) The principal amount that, but for such
redemption, would have been payable at the final maturity
of the Note (or portion thereof) being redeemed; over
(2) the principal amount of the Note (or portion thereof)
being redeemed.
The present values of interest and principal payments referred to in
clause (i) above shall be determined in accordance with generally accepted
principles of financial analysis. Such present values shall be calculated by
discounting the amount of each payment of interest or principal from the date
that each such payment would have been payable, but for the redemption, to the
Redemption Date at a discount rate equal to the Treasury Yield (as defined
below) plus 12.5 basis points.
The Make-Whole Premium shall be calculated by an independent
investment banking institution of national standing appointed by the Company;
provided, that if the Company fails to make such appointment at least 45
business days prior to the Redemption Date, or if the institution so appointed
is unwilling or unable to make such calculation, such calculation shall be made
by Xxxxxx Xxxxxxx & Co. Incorporated or, if such firm is unwilling or unable to
make such calculation, by an independent investment banking institution of
national standing appointed by the Trustee (in any such case, an "Independent
Investment Banker").
For purposes of determining the Make-Whole Premium, "Treasury Yield"
means a rate of interest per annum equal to the weekly average yield to maturity
of United States Treasury Notes that have a constant maturity that corresponds
to the remaining term to maturity of the Notes, calculated to the nearest 1/12th
of a year (the "Remaining Term"). The Treasury Yield shall be determined as of
the third business day immediately preceding the applicable Redemption Date.
The weekly average yields of United States Treasury Notes shall be
determined by reference to the most recent statistical release published by the
Federal Reserve Bank of New York and designated "H.15(519) Selected Interest
Rates" or any successor release (the "H.15 Statistical Release"). If the H.15
Statistical Release sets forth a weekly average yield for United States Treasury
Notes having a constant maturity that is the same as the Remaining Term, then
the Treasury Yield shall be equal to such weekly average yield. In all other
cases, the Treasury Yield shall be calculated by interpolation, on a
straight-line basis, between the weekly average yields on the United States
Treasury Notes that have a constant maturity closest to and greater than the
Remaining Term and the United States Treasury Notes that have a constant
maturity closest to and less than the Remaining Term and the United States
Treasury Notes that have a constant maturity closest to and less than the
Remaining Term (in each case as set forth in the H.15 Statistical Release). Any
weekly average yields so calculated by interpolation shall be rounded to the
A-4
nearest 1/100th of 1%, with any figure of 1/200th of 1% or above being rounded
upward. If weekly average yields for United States Treasury Notes are not
available in the H.15 Statistical Release or otherwise, then the Treasury Yield
shall be calculated by interpolation of comparable rates selected by the
Independent Investment Banker.
In the case of any partial redemption, selection of the Notes for
redemption shall be made by the Trustee on a pro rata basis, by lot or by such
other method as the Trustee in its sole discretion shall deem to be fair and
appropriate, although no Note of $1,000 in original principal amount or less
shall be redeemed in part. If any Note is to be redeemed in part only, the
notice of redemption relating to such Note shall state the portion of the
principal amount thereof to be redeemed. A new Note in principal amount equal to
the unredeemed portion thereof shall be issued in the name of the Holder thereof
upon cancellation of the original Note.
Notice of redemption shall be mailed at least 30 days but not more
than 60 days before the Redemption Date to each Holder of Notes to be redeemed
at his registered address. Notes in denominations larger than $1,000 may be
redeemed in part but only in whole multiples of $1,000. If money sufficient to
pay the Redemption Price of and accrued interest on all Notes (or portions
thereof) to be redeemed on the Redemption Date is deposited with the Paying
Agent on or before the Redemption Date and certain other conditions are
satisfied, on and after such date interest ceases to accrue on such Notes (or
such portions thereof) called for redemption.
6. DENOMINATIONS; TRANSFER; EXCHANGE. The Notes are in registered
form without coupons in denominations of $1,000 and whole multiples of $1,000. A
Holder may transfer or exchange Notes in accordance with the Indenture. The
Registrar may require a Holder, among other things, to furnish appropriate
endorsements or transfer documents and to pay any taxes and fees required by law
or permitted by the Indenture. The Registrar need not register the transfer of
or exchange any Notes selected for redemption (except, in the case of a Note to
be redeemed in part, the portion of the Note not to be redeemed) or any Notes
for a period of 15 days before a selection of Notes to be redeemed or 15 days
before an interest payment date.
7. PERSONS DEEMED OWNERS. The registered Holder of this Note may be
treated as the owner of it for all purposes.
8. UNCLAIMED MONEY. If money for the payment of principal or interest
remains unclaimed for two years, the Trustee or Paying Agent shall pay the money
back to the Company at its request unless an abandoned property law designates
another Person. After any such payment, Holders entitled to the money must look
only to the Company and not to the Trustee for payment.
9. DISCHARGE AND DEFEASANCE. Subject to certain conditions, the
Company at any time may terminate some or all of its obligations under the Notes
and the Indenture if the Company deposits with the Trustee money or U.S.
Government Obligations for the payment of principal and interest on the Notes to
redemption or maturity, as the case may be.
10. AMENDMENT, WAIVER. Subject to certain exceptions set forth in the
Indenture, (i) the Indenture or the Notes may be amended with the written
consent of the Holders of at least a majority in principal amount outstanding of
the Notes and (ii) any default or noncompliance with any provision may be waived
with the written consent of the Holders of a majority in principal amount
outstanding of the Notes. Subject to certain exceptions set forth in the
Indenture, without the consent of any Noteholder, the Company and the Trustee
may amend the Indenture or the Notes to: cure any ambiguity, omission, defect or
A-5
inconsistency, to comply with Article 5 of the Indenture, provide for
uncertificated Notes in addition to or in place of certificated Notes, add
guarantees with respect to the Notes, secure the Notes, add additional covenants
or surrender rights and powers conferred on the Company, comply with any request
of the SEC in connection with qualifying the Indenture under the Act, or make
any change that does not adversely affect the rights of any Noteholder.
11. DEFAULTS AND REMEDIES. Under the Indenture, Events of Default
include (i) default in the payment of any interest upon any Note for 30 days or
more after becomes due; (ii) default in the payment of the principal of any Note
at its Stated Maturity; (iii) default in the performance, or breach, of any
other covenant or warranty of the Company in the Indenture, and continuance of
such default or breach for a period of 60 days after there has been given, by
registered or certified mail, to the Company by the Trustee or to the Company
and the Trustee by the Holders of at least 25% in principal amount of the
outstanding Notes a written notice specifying such default or breach and
requiring it to be remedied and stating that such notice is a "Notice of
Default" under the Indenture; (iv) failure to pay when due the principal of, or
acceleration of, any Indebtedness for money borrowed by the Company or a
Subsidiary, which Indebtedness, individually or in the aggregate, is in excess
of $25.0 million principal amount, without such Indebtedness having been
discharged, or such acceleration having been rescinded or annulled, within a
period of 10 days after there shall have been given, by registered or certified
mail, to the Company by the Trustee or to the Company and the Trustee by the
Holders of at least 25% in principal amount of the outstanding Notes a written
notice specifying such default and requiring the Company to cause such
Indebtedness to be discharged or cause such acceleration to be rescinded or
annulled and stating that such notice is a "Notice of Default" under the
Indenture; and (v) certain events of bankruptcy, insolvency or reorganization of
the Company or a Significant Subsidiary.
If an Event of Default occurs and is continuing, the Trustee or the
Holders of at least 25% in principal amount of the Notes may declare all the
Notes to be due and payable immediately. Certain events of bankruptcy or
insolvency are Events of Default which shall result in the Notes being due and
payable immediately upon the occurrence of such Events of Default.
Noteholders may not enforce the Indenture or the Notes except as
provided in the Indenture. The Trustee may refuse to enforce the Indenture or
the Notes unless it receives reasonable indemnity or security. Subject to
certain limitations, Holders of a majority in principal amount of the Notes may
direct the Trustee in its exercise of any trust or power. The Trustee may
withhold from Noteholders notice of any continuing Default (except a Default in
payment of principal or interest) if it determines that withholding notice is in
the interest of the Holders.
12. TRUSTEE DEALINGS WITH THE COMPANY. Subject to certain limitations
imposed by the Act, the Trustee under the Indenture, in its individual or any
other capacity, may become the owner or pledgee of Notes and may otherwise deal
with and collect obligations owed to it by the Company or its Affiliates and may
otherwise deal with the Company or its Affiliates with the same rights it would
have if it were not Trustee.
13. NO RECOURSE AGAINST OTHERS. A director, officer, employee or
stockholder, as such, of the Company or the Trustee shall not have any liability
for any obligations of the Company under the Notes or the Indenture or for any
claim based on, in respect of or by reason of such obligations or their
creation. By accepting a Note, each Noteholder waives and releases all such
liability. The waiver and release are part of the consideration for the issue of
the Notes.
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14. AUTHENTICATION. This Note shall not be valid until an authorized
signatory of the Trustee (or an authenticating agent) manually signs the
certificate of authentication on the other side of this Note.
15. ABBREVIATIONS. Customary abbreviations may be used in the name of
a Noteholder or an assignee, such as TEN COM (=tenants in common), TEN ENT
(=tenants by the entireties), JT TEN (=joint tenants with rights of survivorship
and not as tenants in common), CUST (=custodian), and U/G/M/A (=Uniform Gift to
Minors Act).
16. GOVERNING LAW. THIS SECURITY SHALL BE GOVERNED BY, AND CONSTRUED
IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK 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.
17. CUSIP NUMBERS. Pursuant to a recommendation promulgated by the
Committee on Uniform Note Identification Procedures, the Company has caused
CUSIP numbers to be printed on the Notes and has directed the Trustee to use
CUSIP numbers in notices of redemption as a convenience to Noteholders. 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 shall furnish to any Noteholder upon written request and
without charge to the Noteholder a copy of the Indenture which has in it the
text of this Note in larger type. Requests may be made to:
SEACOR SMIT Inc.
0000 Xxxxxx xx xxx Xxxxxxxx
00xx Xxxxx
Xxx Xxxx, XX 00000
Attention of Secretary
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ASSIGNMENT FORM
To assign this Note, fill in the form below:
I or we assign and transfer this Note to
(Print or type assignee's name, address and zip code)
(Insert assignee's soc. sec. or tax I.D. No.)
and irrevocably appoint _____________________ agent 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 other side of this Note.
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[TO BE ATTACHED TO GLOBAL NOTE]
SCHEDULE OF INCREASES OR DECREASES IN GLOBAL NOTE
The initial principal amount of this Global Note is $200,000,000. The
following increases or decreases in this Global Note have been made:
Principal Amount of Signature of
Amount of decrease in Amount of Increase in this Global Note authorized officer of
Principal Amount of Principal Amount of following such decrease Trustee or Notes
Date of Exchange this Global Note this Global Note or increase Custodian
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