1
EXHIBIT 4.2
--------------------------------------------------------------------------------
FIRST WAVE MARINE, INC.
as Issuer
NEWPARK SHIPBUILDING AND REPAIR, INC.
EAE SERVICES, INC.
EAE INDUSTRIES, INC.
NEWPARK MARINE FABRICATORS, INC.
LOUISIANA SHIP, INC.
as Subsidiary Guarantors
$90,000,000
____% SENIOR NOTES DUE 2008
-----------------
INDENTURE
Dated as of ________________, 1998
-----------------
BANK ONE, N.A.
as Trustee
---------------
2
CROSS-REFERENCE TABLE*
Trust Indenture
Act Section Indenture Section
----------------- -----------------
310(a)(1) . . . . . . . . . . . . . . . . . . . . . . . . 7.10
(a)(2) . . . . . . . . . . . . . . . . . . . . . . . 7.10
(a)(3) . . . . . . . . . . . . . . . . . . . . . . . N.A.
(a)(4) . . . . . . . . . . . . . . . . . . . . . . . N.A.
(a)(5) . . . . . . . . . . . . . . . . . . . . . . . 7.10
(b) . . . . . . . . . . . . . . . . . . . . . . . . 7.3,7.10
(c) . . . . . . . . . . . . . . . . . . . . . . . . N.A.
311(a) . . . . . . . . . . . . . . . . . . . . . . . . 7.11
(b) . . . . . . . . . . . . . . . . . . . . . . . . 7.11
(c) . . . . . . . . . . . . . . . . . . . . . . . . N.A.
312 (a) . . . . . . . . . . . . . . . . . . . . . . . . 2.5
(b) . . . . . . . . . . . . . . . . . . . . . . . . 12.3
(c) . . . . . . . . . . . . . . . . . . . . . . . . 12.3
313 (a) . . . . . . . . . . . . . . . . . . . . . . . . 7.6
(b)(1) . . . . . . . . . . . . . . . . . . . . . . . N.A.
(b)(2) . . . . . . . . . . . . . . . . . . . . . . . 7.6,7.7
(c) . . . . . . . . . . . . . . . . . . . . . . . . 7.6,12.2
(d) . . . . . . . . . . . . . . . . . . . . . . . . 7.6
314 (a) . . . . . . . . . . . . . . . . . . . . . . . . 4.3,12.5
(b) . . . . . . . . . . . . . . . . . . . . . . . . 11.2
(c)(1) . . . . . . . . . . . . . . . . . . . . . . . 12.4
(c)(2) . . . . . . . . . . . . . . . . . . . . . . . 11.4,12.4
(c)(3) . . . . . . . . . . . . . . . . . . . . . . . N.A.
(d) . . . . . . . . . . . . . . . . . . . . . . . . 11.3,11.4
(e) . . . . . . . . . . . . . . . . . . . . . . . . 12.5
(f) . . . . . . . . . . . . . . . . . . . . . . . . N.A.
315 (a) . . . . . . . . . . . . . . . . . . . . . . . . 7.1(b)
(b) . . . . . . . . . . . . . . . . . . . . . . . . 7.5,12.2
(c) . . . . . . . . . . . . . . . . . . . . . . . . 7.1(a)
(d) . . . . . . . . . . . . . . . . . . . . . . . . 7.1(c)
(e) . . . . . . . . . . . . . . . . . . . . . . . . 6.11
316 (a)(last sentence) . . . . . . . . . . . . . . . . . 2.9
(a)(1)(A) . . . . . . . . . . . . . . . . . . . . . 6.5
(a)(1)(B) . . . . . . . . . . . . . . . . . . . . . 6.4
(a)(2) . . . . . . . . . . . . . . . . . . . . . . . N.A.
(b) . . . . . . . . . . . . . . . . . . . . . . . . 6.7
(c) . . . . . . . . . . . . . . . . . . . . . . . . 9.4
ii
3
317 (a)(1) . . . . . . . . . . . . . . . . . . . . . . . 6.8
(a)(2) . . . . . . . . . . . . . . . . . . . . . . . 6.9
(b) . . . . . . . . . . . . . . . . . . . . . . . . 2.4
318 (a) . . . . . . . . . . . . . . . . . . . . . . . . 12.1
(b) . . . . . . . . . . . . . . . . . . . . . . . . N.A.
(c) . . . . . . . . . . . . . . . . . . . . . . . . 12.1
N.A. means not applicable.
*This Cross-Reference Table is not part of the Indenture.
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TABLE OF CONTENTS
Page
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ARTICLE 1
DEFINITIONS AND INCORPORATION
BY REFERENCE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Section 1.1. Definitions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Section 1.2. Other Definitions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
Section 1.3. Incorporation by Reference of Trust Indenture Act . . . . . . . . . . . . . . . . . . . . . 16
Section 1.4. Rules of Construction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
ARTICLE 2
THE NOTES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
Section 2.1. Form and Dating . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
Section 2.2. Execution and Authentication . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
Section 2.3. Trustee, Registrar and Paying Agent . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
Section 2.4. Paying Agent to Hold Money in Trust . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
Section 2.5. Holder Lists . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
Section 2.6. Transfer and Exchange . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
Section 2.7. Replacement Notes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
Section 2.8. Outstanding Notes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
Section 2.9. Treasury Notes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
Section 2.10. Temporary Notes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
Section 2.11. Cancellation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
Section 2.12. Defaulted Interest . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
Section 2.13. Persons Deemed Owners . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
Section 2.14. CUSIP Numbers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
ARTICLE 3
REDEMPTION AND PREPAYMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
Section 3.1. Notices to Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
Section 3.2. Selection of Notes to Be Redeemed . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
Section 3.3. Notice of Redemption . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
Section 3.4. Effect of Notice of Redemption . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
Section 3.5. Deposit of Redemption Price . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
Section 3.6. Notes Redeemed in Part . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
Section 3.7. Optional Redemption . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
Section 3.8. Mandatory Redemption . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
iv
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ARTICLE 4
COVENANTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
Section 4.1. Payment of Notes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
Section 4.2. Maintenance of Office or Agency . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
Section 4.3. Provisions of Reports and Other Information . . . . . . . . . . . . . . . . . . . . . . . . . 29
Section 4.4. Compliance Certificate. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
Section 4.5. Taxes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
Section 4.6. Stay, Extension and Usury Laws . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
Section 4.7. Limitation on Restricted Payments. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
Section 4.8. Limitation on Dividend and Other Payment Restrictions Affecting Restricted Subsidiaries. . . 34
Section 4.9. Limitation on Indebtedness . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35
Section 4.10. Limitation on Asset Sales . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36
Section 4.11. Limitation on Transactions with Affiliates . . . . . . . . . . . . . . . . . . . . . . . . . 38
Section 4.12. Limitation on Liens . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38
Section 4.13. Limitation on Issuance and Sale of Capital Stock of Restricted
Subsidiaries . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39
Section 4.14. Offer to Repurchase Upon Change of Control . . . . . . . . . . . . . . . . . . . . . . . . . 39
Section 4.15. Limitation on Sale and Leaseback Transactions . . . . . . . . . . . . . . . . . . . . . . . . 40
Section 4.16 Covenant with respect to Business Activities . . . . . . . . . . . . . . . . . . . . . . . . 41
Section 4.17. Corporate Existence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41
Section 4.18. Pledge Account . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41
ARTICLE 5
SUCCESSORS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42
Section 5.1. Merger, Consolidation, or Sale of Assets . . . . . . . . . . . . . . . . . . . . . . . . . . 42
Section 5.2. Successor Company Substituted . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43
ARTICLE 6
DEFAULTS AND REMEDIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43
Section 6.1. Events of Default . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43
Section 6.2. Acceleration . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45
Section 6.3. Other Remedies . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46
Section 6.4. Waiver of Past Defaults . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46
Section 6.5. Control by Majority . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46
Section 6.6. Limitation on Suits . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46
Section 6.7. Rights of Holders of Notes to Receive Payment . . . . . . . . . . . . . . . . . . . . . . . . 47
Section 6.8. Collection Suit by Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47
Section 6.9. Trustee May File Proofs of Claim . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47
v
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Section 6.10. Priorities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48
Section 6.11. Undertaking for Costs . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49
ARTICLE 7
TRUSTEE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49
Section 7.1. Duties of Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49
Section 7.2. Rights of Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 50
Section 7.3. Individual Rights of Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 51
Section 7.4. Trustee's Disclaimer . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 51
Section 7.5. Notice of Defaults . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 51
Section 7.6. Reports by Trustee to Holders of the Notes . . . . . . . . . . . . . . . . . . . . . . . . 52
Section 7.7. Compensation and Indemnity . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 52
Section 7.8. Replacement of Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 53
Section 7.9. Successor Trustee by Merger, etc. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 54
Section 7.10. Eligibility; Disqualification . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 54
Section 7.11. Preferential Collection of Claims Against Company . . . . . . . . . . . . . . . . . . . . . 55
ARTICLE 8
DEFEASANCE AND DISCHARGE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 55
Section 8.1. Option to Effect Legal Defeasance or Covenant Defeasance . . . . . . . . . . . . . . . . . 55
Section 8.2. Legal Defeasance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 55
Section 8.3. Covenant Defeasance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 56
Section 8.4. Conditions to Legal or Covenant Defeasance . . . . . . . . . . . . . . . . . . . . . . . . 56
Section 8.5. Discharge . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 57
Section 8.6. Deposited Money and Government Securities to be Held in Trust;
Other Miscellaneous Provisions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 58
Section 8.7. Repayment to Company . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 59
Section 8.8. Reinstatement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 59
ARTICLE 9
AMENDMENT, SUPPLEMENT AND WAIVER . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 59
Section 9.1. Without Consent of Holders of Notes . . . . . . . . . . . . . . . . . . . . . . . . . . . . 59
Section 9.2. With Consent of Holders of Notes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 60
Section 9.3. Compliance with Trust Indenture Act . . . . . . . . . . . . . . . . . . . . . . . . . . . . 62
Section 9.4. Revocation and Effect of Consents . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 62
Section 9.5. Notation on or Exchange of Notes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 63
Section 9.6. Trustee to Sign Amendments, etc. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 63
Section 9.7. Payments for Consent . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 63
vi
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ARTICLE 10
SUBSIDIARY GUARANTEES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 63
Section 10.1. Guarantees. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 63
Section 10.2. Subsidiary Guarantors May Consolidate, Etc., on Certain Terms . . . . . . . . . . . . . . . 65
Section 10.3. Limitation on Liability . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 66
Section 10.4. Successors and Assigns . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 67
Section 10.5. No Waiver . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 67
Section 10.6. Modification . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 67
Section 10.7. Release of Subsidiary Guarantor . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 67
Section 10.8. Execution of Supplemental Indenture by Future Restricted
Subsidiaries . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 67
ARTICLE 11
COLLATERAL AND SECURITY . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 68
Section 11.1. Pledge Agreement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 68
Section 11.2. Recording and Opinions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 69
Section 11.3. Release of Collateral . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 69
Section 11.4. Certificate of the Company . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 70
Section 11.5. Authorization of Actions to Be Taken by the Trustee Under the Pledge
Agreement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 70
Section 11.6. Authorization of Receipt of Funds by the Trustee Under the Pledge
Agreement. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 71
Section 11.7. Termination of Security Interest . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 71
ARTICLE 12
MISCELLANEOUS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 71
Section 12.1. Trust Indenture Act Controls . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 71
Section 12.2. Notices . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 71
Section 12.3. Communication by Holders of Notes with Other Holders of Notes . . . . . . . . . . . . . . . 73
Section 12.4. Certificate and Opinion as to Conditions Precedent . . . . . . . . . . . . . . . . . . . . 73
Section 12.5. Statements Required in Certificate or Opinion . . . . . . . . . . . . . . . . . . . . . . . 73
Section 12.6. Rules by Trustee and Agents . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 74
Section 12.7. No Personal Liability of Directors, Officers, Employees and Others . . . . . . . . . . . . 74
Section 12.8. Governing Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 74
Section 12.9. No Adverse Interpretation of Other Agreements . . . . . . . . . . . . . . . . . . . . . . . 74
Section 12.10. Successors . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 74
Section 12.11. Severability . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 75
Section 12.12. Originals . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 75
Section 12.13. Table of Contents, Headings, etc. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 75
Section 12.14. Counterparts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 75
vii
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EXHIBITS
Exhibit A FORM OF NOTE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . A-1
Exhibit B CERTIFICATE OF TRANSFEROR . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . B-1
viii
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This INDENTURE, dated as of ____________, 1998, is by and among
First Wave Marine, Inc., a Delaware corporation (the "Company"), as issuer,
Newpark Shipbuilding and Repair, Inc., a Texas corporation, as an Initial
Subsidiary Guarantor, EAE Services, Inc., a Texas corporation, as an Initial
Subsidiary Guarantor, EAE Industries, Inc., a Texas corporation, as an Initial
Subsidiary Guarantor, Newpark Marine Fabricators, Inc., a Texas corporation, as
an Initial Subsidiary Guarantor, Louisiana Ship, Inc., a Texas corporation, as
an Initial Subsidiary Guarantor, and Bank One, N.A., as trustee (the
"Trustee").
The parties listed above agree as follows for the benefit of
each other and for the equal and ratable benefit of the Holders of the _____%
Senior Notes due 2008 (the "Notes").
ARTICLE 1
DEFINITIONS AND INCORPORATION
BY REFERENCE
SECTION 1.1. DEFINITIONS.
"Acquired Indebtedness" means, with respect to any specified
Person, (i) Indebtedness of any other Person existing at the time such other
Person is merged with or into or becomes a Restricted Subsidiary of such
specified Person, including, without limitation, Indebtedness Incurred in
connection with, or in contemplation of, such other Person merging with or into
or becoming a Restricted Subsidiary of such specified Person and (ii)
Indebtedness secured by a Lien encumbering any asset acquired by such specified
Person.
"Affiliate" of any specified Person means any other Person
directly or indirectly controlling or controlled by or under direct or indirect
common control with such specified Person. For purposes of this definition,
"control" (including, with correlative meanings, the terms "controlling,"
"controlled by" and "under common control with"), as used with respect to any
Person, shall mean the possession, directly or indirectly, of the power to
direct or cause the direction of the management or policies of such Person,
whether through the ownership of voting securities, by agreement or otherwise;
provided that beneficial ownership of 10% or more of the voting securities of a
Person shall be deemed to be control.
"Agent" means any Registrar or Paying Agent.
"Applicable Law", except as the context may otherwise require,
means all applicable laws, rules, regulations, ordinances, judgments, decrees,
injunctions, writs and orders of any court or governmental or congressional
agency or authority and rules, regulations, orders, licenses and permits of any
United States federal, state, municipal, regional, or other governmental body,
instrumentality, agency or authority.
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"Asset Sale" means (a) the direct or indirect sale, lease,
license, conveyance or other disposition of any assets or rights (including,
without limitation, by way of a sale and leaseback or similar arrangement, by
merger or consolidation) by the Company or a Restricted Subsidiary (a
"disposition"), in one transaction or a series of transactions; provided that
the disposition of all or substantially all of the assets of the Company and
its Restricted Subsidiaries taken as a whole will be governed by the provisions
of Section 4.14 and/or Section 5.1 and not by the provisions of Section 4.10,
and (b) the issuance or disposition by the Company or any of its Restricted
Subsidiaries of Equity Interests of the Company's Restricted Subsidiaries.
Notwithstanding the foregoing, none of the following will be deemed an Asset
Sale: (i) a disposition of assets by the Company to a Restricted Subsidiary or
by a Restricted Subsidiary to the Company or to a Restricted Subsidiary; (ii)
an issuance of Equity Interests by a Restricted Subsidiary to the Company or to
a Restricted Subsidiary; (iii) a Restricted Payment that is permitted by
Section 4.7; (iv) dispositions in any fiscal year with Net Proceeds in the
aggregate of $1,000,000 or less; (v) any liquidation of any Cash Equivalent;
(vi) any disposition of defaulted receivables for collection; and (vii) the
grant of any Lien securing Indebtedness (or any foreclosure thereon) to the
extent that such Lien is granted in compliance with Section 4.12.
"Attributable Debt" in respect of a sale and leaseback
transaction means, at the time of determination, the present value (discounted
at the rate of interest implicit in such transaction, determined in accordance
with GAAP) of the obligation of the lessee for net rental payments during the
remaining term of the lease included in such sale and leaseback transaction
(including any period for which such lease has been extended or may, at the
option of the lessor, be extended).
"Bank Credit Agreement" means any senior revolving credit
facility governing Indebtedness for borrowed money owed by the Company or a
Restricted Subsidiary to banks, trust companies or other institutions that are
principally engaged in the business of lending money to businesses.
"Bankruptcy Law" means ▇▇▇▇▇ ▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇ Code, as may be
amended from time to time, or any similar federal or state law for the relief
of debtors.
"Board of Directors" means, with respect to any Person, the
Board of Directors of such Person, or any authorized committee of the Board of
Directors of such Person.
"Board Resolutions" means, with respect to any Person, a copy of
a resolution certified by the Secretary or an Assistant Secretary of such
Person to have been duly adopted by the Board of Directors of such Person and
to be in full force and effect on the date of such certification, and delivered
to the Trustee.
"Business Day" means any day other than a Saturday, Sunday,
public holiday or day on which banking institutions in New York (or, with
respect to any payments or transfers to be made by the Trustee or any Agent, as
applicable, in the city where such Trustee or Agent is located) are authorized
or obligated by law or executive order to close.
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"Capital Lease Obligation" means, at the time any determination
thereof is to be made, the amount of the liability in respect of a capital
lease that would at such time be required to be capitalized on a balance sheet
in accordance with GAAP.
"Capital Stock" means (i) in the case of a corporation,
corporate stock, (ii) in the case of an association or business entity, any and
all shares, interests, participations, rights or other equivalents (however
designated) of corporate stock, (iii) in the case of a partnership, partnership
interests (whether general or limited) and (iv) any other interest or
participation that confers on a Person the right to receive a share of the
profits and losses of, or distributions of assets of, the issuing Person.
"Cash Equivalents" means (i) Government Securities having
maturities of not more than twelve months from the date of acquisition, (ii)
certificates of deposit and Eurodollar time deposits with maturities of twelve
months or less from the date of acquisition, bankers' acceptances with
maturities not exceeding six months and overnight bank deposits, in each case
with any member bank of the U.S. Federal Reserve System having capital and
surplus in excess of $500,000,000, (iii) repurchase obligations with a term of
not more than seven days for underlying securities of the types described in
clause (i) above entered into with any financial institution meeting the
qualifications specified in clause (ii) above, and (iv) commercial paper having
the rating of at least P-1 from ▇▇▇▇▇'▇ Investors Service, Inc., or any
successor to its rating business, or at least A-1 from Standard & Poor's
Ratings Group, or any successor to its rating business, and in each case
maturing within 180 days after the date of acquisition.
"Certificated Notes" means Notes issued in definitive, fully
registered form to beneficial owners of interests in the Global Note pursuant
to Section 2.06(a) hereof.
"Change of Control" means the occurrence of any of the
following: (i) the sale, lease, transfer, conveyance or other disposition
(other than by way of merger or consolidation), in one or a series of related
transactions, of all or substantially all of the assets of the Company and its
Restricted Subsidiaries taken as a whole to any "person" (as such term is used
in Section 13(d)(3) of the Exchange Act) other than a Restricted Subsidiary;
(ii) the adoption of a plan relating to the liquidation or dissolution of the
Company; (iii) the consummation of any transaction (including, without
limitation, any merger or consolidation) the result of which is that any
"person" (as defined above), other than a Permitted Holder, becomes the
"beneficial owner" (as such term is defined in Rule 13d-3 and Rule 13d-5 under
the Exchange Act), directly or indirectly, of a greater percentage of the
voting stock of the Company than the percentage of the voting stock of the
Company held by the Permitted Holders; (iv) the first day on which the
Permitted Holders in the aggregate hold less than 35% of the voting stock of
the Company; or (v) the first day on which a majority of the members of the
Board of Directors of the Company are not Continuing Directors.
"Closing Date" means the date of original issuance of the Notes.
"Collateral" means the Pledged Securities and the proceeds
thereof.
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"Commission" or "SEC" means the Securities and Exchange
Commission, and any successor thereto.
"Consolidated EBITDA" means, with respect to the Company for any
period, the sum of, without duplication, (i) the Consolidated Net Income of the
Company and its Restricted Subsidiaries for such period, plus (ii) to the
extent deducted in the computation of such Consolidated Net Income, the
Consolidated Interest Expense for such period, plus (iii) to the extent
deducted in the computation of such Consolidated Net Income, amortization or
write-off of deferred financing charges for such period, plus (iv) provision
for taxes based on income or profits for such period (to the extent such income
or profits were included in computing Consolidated Net Income for such period),
plus (v) to the extent deducted in the computation of such Consolidated Net
Income, consolidated depreciation, depletion, amortization and other noncash
charges of the Company and its Restricted Subsidiaries required to be reflected
as expenses on the books and records of the Company, minus (vii) cash payments
with respect to any nonrecurring, noncash charges previously added back
pursuant to clause (v), and excluding (viii) the impact of foreign currency
translations. Notwithstanding the foregoing, the provision for taxes based on
the income or profits of, and the depreciation and amortization and other
noncash charges of a Restricted Subsidiary shall be added to Consolidated Net
Income to compute Consolidated EBITDA only to the extent (and in the same
proportion) that the Net Income of such Subsidiary was included in calculating
the Consolidated Net Income of the Company and only if a corresponding amount
would be permitted at the date of determination to be dividended to the Company
by such Restricted Subsidiary without prior approval (unless such approval has
been obtained), pursuant to the terms of its charter and all agreements,
instruments, judgments, decrees, orders, statutes, rules and governmental
regulations applicable to that Restricted Subsidiary or its stockholders.
"Consolidated Indebtedness" means, with respect to any Person as
of any date of determination, the sum, without duplication, of (i) the total
amount of Indebtedness of such Person and its Restricted Subsidiaries, plus
(ii) the aggregate liquidation value of all Disqualified Stock (and in the case
of a Restricted Subsidiary of the Company, preferred stock other than preferred
stock held by the Company or any of its Restricted Subsidiaries) of such
Person, in each case, determined on a consolidated basis in accordance with
GAAP.
"Consolidated Interest Coverage Ratio" means with respect to the
Company and its Restricted Subsidiaries for any period, the ratio of (i)
Consolidated EBITDA of the Company and its Restricted Subsidiaries for such
period to (ii) Consolidated Interest Expense of the Company and its Restricted
Subsidiaries for such period. In the event that the Company or any of its
Restricted Subsidiaries Incurs any Indebtedness (other than revolving credit
borrowings pursuant to Indebtedness already Incurred in accordance herewith) or
issues or redeems preferred stock subsequent to the commencement of the
four-quarter reference period for which the Consolidated Interest Coverage
Ratio is being calculated but on or prior to the date on which the event for
which the calculation of the Consolidated Interest Coverage Ratio is being made
(the "Calculation Date") , then the Consolidated Interest Coverage Ratio shall
be calculated giving pro forma effect to such Incurrence of Indebtedness, or
such issuance or redemption of preferred stock, as if the same had
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occurred at the beginning of the applicable four-quarter reference period. For
purposes of making the computation referred to above, (i) acquisitions that
have been made by the Company or any of its Restricted Subsidiaries, including
through mergers or consolidations and including any related financing
transactions, during the four-quarter reference period or subsequent to such
reference period and on or prior to the Calculation Date shall be deemed to
have occurred on the first day of the four-quarter reference period, and (ii)
the Consolidated EBITDA attributable to discontinued operations, as determined
in accordance with GAAP, and operations or businesses disposed of during the
four quarter reference period or subsequent to such reference period and on or
prior to the Calculation Date, shall be excluded as of the first day of the
four quarter reference period, and (iii) the Consolidated Interest Expense
attributable to discontinued operations, as determined in accordance with GAAP,
and operations or businesses disposed of during the four quarter reference
period or subsequent to such reference period and on or prior to the
Calculation Date, shall be excluded, but only to the extent that the
obligations giving rise to such Consolidated Interest Expense will not be
obligations of the Company or any of its Restricted Subsidiaries following the
Calculation Date.
"Consolidated Interest Expense" means, with respect to any
Person for any period, the sum, without duplication, of (i) the consolidated
interest expense of such Person and its Restricted Subsidiaries for such
period, whether paid or accrued (including, without limitation, amortization of
debt issuance costs and original issue discount, non-cash interest payments,
the interest component of any deferred payment obligations, the interest
component of all payments associated with Capital Lease Obligations, imputed
interest with respect to Attributable Debt, interest payments in respect of
Indebtedness of another Person that is Guaranteed by such Person or one of its
Restricted Subsidiaries or secured by a Lien on assets of such Person or one of
its Restricted Subsidiaries, commissions, discounts and other fees and charges
incurred in respect of letter of credit or bankers' acceptance financings, and
net payments (if any) pursuant to Hedging Obligations), (ii) the consolidated
interest expense of such Person and its Restricted Subsidiaries that was
capitalized during such period, in each case, on a consolidated basis and in
accordance with GAAP, and (iii) the product of (A) the aggregate amount of
dividends paid (to the extent not accrued in a prior period) or accrued on
Disqualified Stock of the Company and its Restricted Subsidiaries or preferred
stock of the Company's Restricted Subsidiaries, to the extent such Disqualified
Stock or preferred stock is owned by Persons other than the Company and its
Restricted Subsidiaries and (B) a fraction, the numerator of which is one and
the denominator of which is one minus the then current combined federal, state,
local and foreign statutory tax rate of such Person, expressed as a decimal.
"Consolidated Net Income" means, with respect to any Person for
any period, the aggregate of the Net Income of such Person and its Subsidiaries
for such period, on a consolidated basis, determined in accordance with GAAP;
provided that (i) the Net Income (but not loss) of any Person that is not a
Restricted Subsidiary or that is accounted for by the equity method of
accounting shall be included only to the extent of the amount of dividends or
distributions paid in cash to the specified Person as to which Consolidated Net
Income is being calculated, (ii) the Net Income of any Restricted Subsidiary
shall be excluded to the extent that the declaration or payment of dividends or
similar distributions by such Restricted Subsidiary of such Net Income would
not be permitted
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at the date of determination directly or indirectly, pursuant to the terms of
its charter and by-laws and all agreements, instruments, judgments, decrees,
orders, statutes, rules or governmental regulations applicable to such
Restricted Subsidiary or its stockholders, (iii) the Net Income (if positive)
of any Person acquired in a pooling of interests transaction for any period
prior to the date of such acquisition shall be excluded, and (iv) the
cumulative effect of a change in accounting principles shall be excluded.
"Consolidated Net Worth" means, with respect to any Person as of
any date, the sum of (i) the consolidated equity of the common equity holders
of such Person and its consolidated Restricted Subsidiaries as of such date
plus (ii) the respective amounts reported on such Person's balance sheet as of
such date with respect to any series of preferred equity (other than
Disqualified Stock) that by its terms is not entitled to the payment of
dividends or other distributions, unless such dividends or other distributions
may be declared and paid only out of net earnings in respect of the year of
such declaration and payment, but only to the extent of any cash received by
such Person upon issuance of such preferred equity, less (x) all write-ups
(other than write-ups resulting from foreign currency translations and
write-ups of tangible assets of a going concern business made within 12 months
after the acquisition of such business) subsequent to the Closing Date in the
book value of any asset owned by such Person or a consolidated Restricted
Subsidiary of such Person, (y) all investments as of such date in Persons that
are not Restricted Subsidiaries (except, in each case, Permitted Investments),
and (z) all unamortized debt discount and expense and unamortized deferred
charges as of such date, all of the foregoing determined in accordance with
GAAP.
"Continuing Director" means, as of any date of determination,
any member of the Board of Directors of the Company who (i) was a member of
such Board of Directors on the Closing Date or (ii) was nominated for election
or elected to such Board of Directors with the approval of a majority of the
Continuing Directors who were members of such Board of Directors at the time of
such nomination of election.
"Corporate Trust Office of the Trustee" shall be at the address
of the Trustee specified in Section 12.2 hereof or such other address as to
which the Trustee may give notice to the Company.
"Custodian" means any receiver, trustee, assignee, liquidator,
sequestrator, custodian or similar official under any Bankruptcy Law.
"Default" means any event that is or with the passage of time or
the giving of notice or both would be an Event of Default.
"Depositary" means, with respect to the Notes issuable or issued
in whole or in part in global form, the Person specified in Section 2.3 hereof
as the Depositary with respect to the Notes, until a successor shall have been
appointed and become such pursuant to the applicable provision of this
Indenture, and, thereafter, "Depositary" shall mean or include such successor.
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15
"Disqualified Stock" means any Capital Stock that, by its terms
(or by the terms of any security into which it is convertible or for which it
is exchangeable), or upon the happening of any event, matures or is mandatorily
redeemable, pursuant to a sinking fund obligation or otherwise, or redeemable
at the option of the holder thereof, in whole or in part, on or prior to the
date that is 91 days after the date on which the Notes mature.
"Eligible Receivables" means the trade receivables of the
Company and its Restricted Subsidiaries less the allowance for doubtful
accounts, each of the foregoing determined in accordance with GAAP.
"Equity Interests" means Capital Stock and all warrants, options
or other rights to acquire Capital Stock (but excluding any debt security that
is convertible into, or exchangeable for, Capital Stock).
"Exchange Act" means the Securities Exchange Act of 1934, as
amended, and the rules and regulations thereunder.
"Existing Indebtedness" means Indebtedness of the Company and
its Restricted Subsidiaries in existence on the Closing Date pro forma after
giving effect to the offering and sale of the Notes and the use of proceeds
therefrom.
"Fair Market Value" means, with respect to any asset or
property, the sale value that would be obtained in an arm's-length transaction
between an informed and willing seller under no compulsion to sell and an
informed and willing buyer under no compulsion to buy; provided that if such
value exceeds $1,000,000, such determination shall be made in good faith by the
Board of Directors of the Company.
"GAAP" means generally accepted accounting principles in the
United States of America set forth in the opinions and pronouncements of the
Accounting Principles Board of the American Institute of Certified Public
Accountants and statements and pronouncements of the Financial Accounting
Standards Board or in such other statements by such other entity as have been
approved by a significant segment of the accounting profession, which are in
effect on the date of this Indenture.
"Government Securities" means direct obligations of, or
obligations fully guaranteed by, or participations in pools consisting solely
of obligations of or obligations guaranteed by, the United States of America
for the payment of which guarantee or obligations the full faith and credit of
the United States of America is pledged.
"Guarantee" means a guarantee (other than by endorsement of
negotiable instruments for collection in the ordinary course of business),
direct or indirect, in any manner (including, without limitation, letters of
credit and reimbursement agreements in respect thereof), of all or any part of
any Indebtedness.
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16
"Hedging Obligations" means, with respect to any Person, the
obligations of such Person under (i) interest or currency exchange rate swap
agreements, interest or currency exchange rate cap agreements and interest or
currency exchange rate collar agreements and (ii) other agreements or
arrangements, in any case, designed to protect such Person against fluctuations
in interest or currency exchange rates (as appropriate, "Interest Rate ▇▇▇▇▇▇"
and "Currency ▇▇▇▇▇▇").
"Holder" or "Securityholder" means a Person in whose name a Note
is registered on the Register.
"Incur" means, with respect to any Indebtedness or other
obligation of any Person, to create, issue, incur (by conversion, exchange or
otherwise), assume, Guarantee or otherwise become liable in respect of such
Indebtedness or other obligation or the recording, as required pursuant to GAAP
or otherwise, of any such Indebtedness or other obligation on the balance sheet
of such Person (and "Incurrence," "Incurred," "Incurrable" and "Incurring"
shall have meanings correlative to the foregoing); provided, however, that a
change in GAAP that results in an obligation of such Person that exists at such
time, and is not theretofore classified as Indebtedness, becoming Indebtedness
shall not be deemed an Incurrence of such Indebtedness.
"Indebtedness" means, with respect to any Person, (a) any
liability of such Person, whether or not contingent (i) for borrowed money, or
under any reimbursement obligation relating to a letter of credit, bankers'
acceptance or note purchase facility; (ii) evidenced by a bond, note, debenture
or similar instrument (including a purchase money obligation); (iii) for the
payment of money relating to a Capital Lease Obligation; (iv) for or pursuant
to Disqualified Stock; (v) for or pursuant to preferred stock of any Restricted
Subsidiary of the Company (other than preferred stock held by the Company or
any of its Restricted Subsidiaries); (vi) representing the balance deferred and
unpaid of the purchase price of any property or services (except any such
balance that constitutes a trade payable or accrued liability in the ordinary
course of business that is not overdue by more than 90 days or is being
contested in good faith by appropriate proceedings promptly instituted and
diligently conducted); or (vii) under or in respect of Hedging Obligations; (b)
any liability of others described in the preceding clause (a) that such Person
has guaranteed, that is recourse to such Person or that is otherwise its legal
liability, or the payment of which is secured by (or for which the holder of
such liability has an existing right to be secured by) any Lien upon property
owned by such Person, even though such Person has not assumed or become liable
for the payment of such liability; and (c) any amendment, supplement,
modification, deferral, renewal, extension or refunding of any liability of the
types referred to in clauses (a) and (b) above. The amount of any non-interest
bearing or other discount Indebtedness shall be deemed to be the principal
amount thereof that would be shown on the balance sheet of the issuer dated
such date prepared in accordance with GAAP, but such Indebtedness shall be
deemed to have been Incurred only on the date of the original issuance thereof.
"Indenture" means this Indenture, as amended or supplemented
from time to time.
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"Initial Subsidiary Guarantors" means collectively Newpark
Shipbuilding and Repair, Inc., a Texas corporation, EAE Services, Inc., a Texas
corporation, EAE Industries, Inc., a Texas corporation, Newpark Marine
Fabricators, Inc., a Texas corporation, and Louisiana Ship, Inc., a Texas
corporation.
"Interest Payment Date" means each ________ and ____________ of
each year.
"Investments" means, with respect to any Person, all investments
by such Person in other Persons (including Affiliates) in the forms of direct
or indirect loans (including guarantees of Indebtedness or other obligations
(but excluding endorsements of negotiable instruments for collection in the
ordinary course of business)), advances or capital contributions (excluding
commission, travel and similar advances to directors, officers and employees
made in the ordinary course of business), purchases or other acquisitions (for
consideration) of Indebtedness, Equity Interests or other securities, together
with all items that are or would be classified as investments on a balance
sheet prepared in accordance with GAAP; provided that an acquisition of Equity
Interests or other securities by the Company or any of its Restricted
Subsidiaries for consideration consisting of common equity securities of the
Company shall not be deemed to be an Investment.
"Lien" means, with respect to any asset, any mortgage, lien,
pledge, charge, security interest or encumbrance of any kind in respect of such
asset, whether or not filed, recorded or otherwise perfected under applicable
law (including any conditional sale or other title retention agreement, and any
lease in the nature thereof) .
"Net Income" means, with respect to any Person for any period,
the net income (loss) of such Person for such period, determined in accordance
with GAAP and before any reduction in respect of preferred stock dividends,
excluding, however, (i) any gain (but not loss), together with any related
provision for taxes on such gain (but not loss), realized in connection with
(a) any sales of assets (including, without limitation, dispositions pursuant
to sale and leaseback transactions) other than in the ordinary course of
business or (b) the disposition of any securities by such Person or any of its
Restricted Subsidiaries or the extinguishment of any Indebtedness of such
Person or any of its Restricted Subsidiaries, (ii) any extraordinary or
non-recurring gain (but not loss), together with any related provision for
taxes on such extraordinary or non-recurring gain (but not loss), and (iii)
unrealized foreign exchange gains (but not losses).
"Net Proceeds" means the aggregate cash proceeds received by the
Company or any of its Restricted Subsidiaries in respect of any Asset Sale
(including, without limitation, (i) Cash Equivalents received as consideration
in such Asset Sale, (ii) any cash received upon the disposition of any non-cash
consideration received in such Asset Sale, and (iii) any assumption of
liabilities deemed to constitute "cash" for purposes of Section 4.10), net of
the direct costs relating to such Asset Sale (including, without limitation,
legal, accounting and investment banking fees, and sales commissions), any
relocation expenses incurred as a result thereof, any taxes paid or payable by
the Company or any of its Restricted Subsidiaries as a result thereof (after
taking into account any available tax credits or deductions and any tax sharing
arrangements), amounts required to be paid
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to any Person (other than the Company and its Restricted Subsidiaries) having a
Lien on the assets subject to the Asset Sale, amounts required to be paid to
any Person (other than the Company or any Restricted Subsidiary) owning a
beneficial interest in the assets subject to the Asset Sale, and any reserve
for adjustment in respect of the sale price of such asset or assets established
in accordance with GAAP (provided that the amount of any such reserve shall be
deemed to constitute Net Proceeds at the time such reserve shall have been
released or is not otherwise required to be retained for such purpose).
"Non-Recourse Debt" means Indebtedness (i) as to which neither
the Company nor any of its Restricted Subsidiaries (a) provides credit support
of any kind (including any undertaking, agreement or instrument that would
constitute Indebtedness), (b) is directly or indirectly liable (as a guarantor
or otherwise), or (c) constitutes the lender, (ii) no default with respect to
which (including any rights that the holders thereof may have to take
enforcement action against an Unrestricted Subsidiary) would permit (upon
notice, lapse of time or both) any holder of any other Indebtedness of the
Company or any of its Restricted Subsidiaries to declare a default on such
other Indebtedness or cause the payment thereof to be accelerated or payable
prior to its stated maturity and (iii) as to which the lenders have expressly
waived any recourse which they may have, in law, equity or otherwise, whether
based on misrepresentation, control, ownership or otherwise, to the Company or
any of its Restricted Subsidiaries, including, without limitation, a waiver of
the benefits of the provisions of Section 1111(b) of the Bankruptcy Law.
"Note Custodian" means the Trustee, as custodian with respect to
the Notes in global form, or any successor entity thereto.
"Obligations" means any principal, interest, penalties, fees,
indemnifications, reimbursements, damages and other liabilities payable under
the documentation governing any Indebtedness.
"Officer" means, with respect to any Person, the chief executive
officer, the president, the chief operating officer, the chief financial
officer, the chief accounting officer, the treasurer, any assistant treasurer,
the controller, the secretary, any assistant secretary or any vice-president of
such Person.
"Officers' Certificate" means a certificate signed on behalf of
a Person by two Officers of such Person, one of whom must be the principal
executive officer, the principal financial officer or the principal accounting
officer of such Person, that meets the requirements of Section 12.5 hereof.
"Opinion of Counsel" means an opinion from legal counsel who is
reasonably acceptable to the Trustee, that meets the requirements of Section
12.5 hereof. The counsel may be counsel to the Company, any Subsidiary of the
Company or the Trustee.
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"Permitted Holders" means (i) ▇▇▇▇▇▇ ▇. ▇▇▇▇▇, ▇▇▇▇▇ ▇. ▇▇▇▇▇
and ▇▇▇▇▇ ▇. ▇▇▇▇▇▇; (ii) each of their beneficiaries, estates, spouse and
lineal descendants, legal representatives of any of the foregoing and the
trustee of any bona fide trust of which any of the foregoing are the sole
beneficiaries or grantors and (iii) all Affiliates controlled by the
individuals named in clause (i) (provided that, for purposes of this clause
(iii) only, the proviso set forth in the definition of the term "Affiliate"
shall be deemed modified to provide that beneficial ownership of 50% or more of
the voting securities of a Person shall constitute, and shall be necessary to
constitute, control).
"Permitted Investments" means (i) any Investment in the Company
(other than the purchase of any Equity Interests of the Company) or in a
Restricted Subsidiary of the Company; (ii) any Investment in Cash Equivalents;
(iii) any Investment by the Company or any of its Restricted Subsidiaries in a
Person engaged in the Shipyard Business if, as a result of such Investment, (A)
such Person becomes a Restricted Subsidiary of the Company or (B) such Person
is merged, consolidated or amalgamated with or into, or transfers or conveys
substantially all of its assets to, or is liquidated into, the Company or a
Restricted Subsidiary of the Company; (iv) any Investment in Government
Securities in accordance with the provisions of the Pledge Agreement; (v)
Investments the payment for which consists exclusively of Equity Interests
(excluding Disqualified Stock) of the Company; (vi) Investments in shares of
money market mutual or similar funds having assets in excess of $500,000,000;
and (vii) Investments in negotiable instruments held for collection in the
ordinary course of business and lease, utility and similar deposits.
"Permitted Liens" means (i) Liens on receivables securing
Permitted Indebtedness Incurred pursuant to clause (i) of the definition of such
term; (ii) Liens in favor of the Company and/or its Restricted Subsidiaries;
(iii) Liens on property of a Person existing at the time such Person is merged
into or consolidated with the Company or any of its Restricted Subsidiaries,
provided that such Liens were in existence prior to the contemplation of such
merger or consolidation and do not extend to any assets other than those of the
Person merged into or consolidated with the Company or any such Restricted
Subsidiary; (iv) Liens securing any Acquired Indebtedness and which exist at the
time of acquisition thereof by the Company or any of its Restricted
Subsidiaries, provided that such Liens were in existence prior to the
contemplation of such acquisition; (v) Liens arising under this Indenture in
favor of the Trustee; (vi) Liens existing on the Closing Date; (vii) Liens
arising by reason of (1) any judgment, decree or order of any court not
constituting an Event of Default; (2) taxes not yet delinquent or which are
being contested in good faith by appropriate proceedings which suspend the
collection thereof, promptly instituted and diligently conducted, and for which
adequate reserves have been established to the extent required by GAAP; (3)
security for payment of workers' compensation or other insurance; (4) good faith
deposits in connection with tenders, leases and contracts (other than contracts
for the payment of money), bids, licenses, performance or similar bonds and
other obligations of a like nature, in the ordinary course of business; (5)
zoning restrictions, easements, licenses, reservations, provisions, covenants,
conditions, waivers, restrictions on the use of property or minor irregularities
of title (and with respect to leasehold interests, mortgages, obligations, Liens
and other encumbrances incurred, created, assumed or permitted to exist and
arising by, through or under a landlord or owner of the leased property, with or
without consent of the lessees), none of which materially impairs the use of any
parcel of property material
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to the operation of the business of the Company or any Restricted Subsidiary or
the value of such property for the purpose of such business; (6) deposits to
secure public or statutory obligations or in lieu of surety or appeal bonds;
(7) surveys, exceptions, title defects, encumbrances, easements, reservations
of, or rights of others for, rights of way, sewers, electric lines, telegraph
or telephone lines and other similar purposes or zoning or other restrictions
as to the use of real property not interfering with the ordinary conduct of the
business of the Company or any of its Restricted Subsidiaries; or (8) operation
of law or statute and incurred in the ordinary course of business, including
without limitation, those in favor of mechanics, materialmen, suppliers,
laborers or employees, and, if securing sums of money, for sums which are not
yet delinquent or are being contested in good faith by appropriate proceedings
which suspend the collection thereof, promptly instituted and diligently
conducted, and for which adequate reserves have been established to the extent
required by GAAP; (viii) Liens created by the Pledge Agreement; (ix) Liens
resulting from the deposit of funds or Government Securities in trust for the
purpose of decreasing or defeasing Indebtedness of the Company and its
Restricted Subsidiaries so long as such deposit of funds or Government
Securities and such decreasing or defeasing of Indebtedness are permitted under
Section 4.7; (x) Liens securing obligations in a maximum aggregate amount not
to exceed $5,000,000; and (xi) any extension, renewal or replacement (or
successive extensions, renewals or replacements), in whole or in part, of any
Lien referred to in the foregoing clauses (iii), (iv) and (vi) above; provided
that the principal amount of the Indebtedness secured thereby shall not exceed
the principal amount of Indebtedness secured thereby immediately prior to the
time of such extension, renewal or replacement, and that such extension,
renewal or replacement Lien shall be limited to all or a part of the property
that secured the Lien so extended, renewed or replaced (plus improvements on
such property).
"Permitted Refinancing Indebtedness" means any Indebtedness of
the Company or any of its Restricted Subsidiaries issued in exchange for, or
the net proceeds of which are used by such Person to extend, refinance, renew,
replace, defease or refund other Indebtedness of such Person ("Old
Indebtedness"); provided that: (i) the principal amount (or accreted value, if
applicable) of such Permitted Refinancing Indebtedness does not exceed the
principal amount (or accreted value, if applicable) of the Old Indebtedness;
(ii) such Permitted Refinancing Indebtedness has a final maturity date equal to
or later than the final maturity date of, and has a Weighted Average Life to
Maturity equal to or greater than the Weighted Average Life to Maturity of, the
Old Indebtedness; (iii) if the Old Indebtedness is subordinated in right of
payment to the Notes, such Permitted Refinancing Indebtedness is subordinated
in right of payment to the Notes on terms at least as favorable to the Holders
as those contained in the documentation governing the Old Indebtedness; (iv)
such Permitted Refinancing Indebtedness is on terms that are no more
restrictive, as a whole, than those governing such Old Indebtedness; and (v)
such Permitted Refinancing Indebtedness is Incurred only by the Company or the
Restricted Subsidiary that is the obligor on the Old Indebtedness.
"Person" means any individual, corporation, limited liability
company, partnership, limited partnership, joint venture, association,
joint-stock company, trust, unincorporated organization or government or any
agency or political subdivision thereof.
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"Pledge Account" means an account established with the Trustee
pursuant to the terms of the Pledge Agreement for the deposit of the Pledged
Securities purchased by the Company with a portion of the proceeds from the
sale of the Notes.
"Pledge Agreement" means the Pledge and Security Agreement,
dated as of the Closing Date, by and among the Company, the Trustee and the
Pledge Agent named therein, governing the disbursement of funds from the Pledge
Account, as such may be amended from time to time pursuant to the terms
thereof.
"Pledged Securities" means the securities purchased with a
portion of the proceeds from the sale of the Notes, which shall consist of
Government Securities, to be deposited in the Pledge Account.
"Public Equity Offering" means an underwritten public offering
for cash by the Company of its Capital Stock (other than Disqualified Stock) to
any Person other than a Subsidiary of the Company pursuant to a registration
statement that has been declared effective by the Commission (other than a
registration statement on Form S-8 or any successor form or otherwise relating
to equity securities issuable under any employee benefit plan of the Company).
"Responsible Officer," when used with respect to the Trustee,
means any officer within the Corporate Trust Administration of the Trustee (or
any successor group of the Trustee) or any other officer of the Trustee
customarily performing functions similar to those performed by any of the above
designated officers and also means, with respect to a particular corporate
trust matter, any other officer to whom such matter is referred because of his
knowledge of and familiarity with the particular subject.
"Restricted Investment" means an Investment other than a
Permitted Investment.
"Restricted Subsidiary" of a Person means any Subsidiary of such
Person that is not an Unrestricted Subsidiary.
"Securities Act" means the Securities Act of 1933, as amended.
"Shipyard Business" means the business of the provision of
construction, repair, fabrication, labor and environmental services to the
maritime, transportation and oil field industries, together with all activities
ancillary thereto.
"Subordinated Indebtedness" means Indebtedness of the Company
(or a Restricted Subsidiary) that is expressly subordinated in right of payment
to the Notes (or a Subsidiary Guarantee, as appropriate).
"Subsidiary" means, with respect to any Person, (i) any
corporation, association or other business entity of which more than 50% of the
total voting power of shares of Capital Stock
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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 such Person or one or more of the other
Subsidiaries of such Person (or a combination thereof) and (ii) any partnership
(a) the sole general partner or the managing general partner of which is such
Person or a Subsidiary of such Person or (b) the only general partners of which
are such Person or of one or more Subsidiaries of such Person (or any
combination thereof). Unless indicated to the contrary, "Subsidiary" refers to
a Subsidiary of the Company.
"Subsidiary Guarantee" means an unconditional guaranty of the
Notes and this Indenture given by any Restricted Subsidiary or other Person
pursuant to the terms of this Indenture or any supplement hereto.
"Subsidiary Guarantors" means (i) as of the Closing Date, the
Initial Subsidiary Guarantors, and (ii) thereafter, any other Restricted
Subsidiary that becomes a guarantor of the Notes in compliance with the
provisions of this Indenture and executes a supplemental indenture agreeing to
be bound by the terms of this Indenture; in each case until such time, if any,
as such Restricted Subsidiary is released from the Subsidiary Guarantee as
permitted by this Indenture.
"TIA" means the Trust Indenture Act of 1939 (15 U.S.C. Sections
77aaa-77bbbb) and the rules and regulations thereunder, as in effect on the
date on which this Indenture is qualified under the TIA (except as provided in
Sections 9.1(f) and 9.3 hereof).
"Trustee" means the party named as such above until a successor
replaces it in accordance with the applicable provisions of this Indenture and
thereafter means the successor serving hereunder.
"Unrestricted Subsidiary" means any Subsidiary that is
designated by the Board of Directors of the Company as an Unrestricted
Subsidiary pursuant to a Board Resolution of the Company, but only to the
extent that such Subsidiary (i) has no Indebtedness other than Non-Recourse
Debt, (ii) does not own any Equity Interests of, or own or hold any Lien on,
any property of the Company or any Restricted Subsidiary of the Company (other
than any Subsidiary of the Subsidiary to be so designated), (iii) has not, and
the Subsidiaries of such Subsidiary have not at the time of designation, and
does not thereafter, Incur any Indebtedness pursuant to which the lender has
recourse to any of the assets of the Company or any of its Restricted
Subsidiaries, (iv) is not party to any material agreement, contract,
arrangement or understanding with the Company or any of its Restricted
Subsidiaries unless the terms of any such agreement, contract, arrangement or
understanding are no less favorable to the Company or such Restricted
Subsidiary than those that might be obtained at the time from Persons who are
not Affiliates of the Company, (v) is a Person with respect to which neither
the Company nor any of its Restricted Subsidiaries has any direct or indirect
obligation (a) to subscribe for additional Equity Interests or (b) to maintain
or preserve such Person's financial condition or to cause such Person to
achieve any specified levels of operating results, (vi) has not guaranteed or
otherwise directly or indirectly provided credit support for any Indebtedness
of the Company or any of its Restricted Subsidiaries and (vii) has at least one
director
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on its board of directors that is not a director or executive officer of the
Company or any of its Restricted Subsidiaries and has at least one executive
officer that is not a director or executive officer of the Company or any of
its Restricted Subsidiaries. Any such designation by the Board of Directors of
the Company shall be evidenced to the Trustee by filing with the Trustee a
certified copy of the Board Resolution of the Company giving effect to such
designation and an Officers' Certificate certifying that (i) such designation
complied with the foregoing conditions, (ii) such designation was permitted by
Section 4.7, (iii) immediately after giving effect to such designation, the
Company could Incur at least $1.00 of additional Indebtedness pursuant to the
Consolidated Interest Coverage Ratio test set forth in Section 4.9(a), and (iv)
no Default or Event of Default would be in existence immediately following such
designation. If, at any time, any Unrestricted Subsidiary would fail to meet
the foregoing requirements as an Unrestricted Subsidiary, it shall thereafter
cease to be an Unrestricted Subsidiary for purposes of this Indenture and any
Indebtedness, Liens or agreements of such Subsidiary shall be deemed to be
Incurred or created by a Restricted Subsidiary of the Company as of such date
(and, if such Indebtedness, Liens or agreements are not permitted to be
Incurred or created as of such date under the covenants described in Article IV
of this Indenture, the Company shall be in default of such covenants). The
Board of Directors of the Company may at any time designate any Unrestricted
Subsidiary to be a Restricted Subsidiary, provided that such designation shall
be deemed to be an Incurrence of Indebtedness and a creation of Liens and
agreements by a Restricted Subsidiary of the Company of any outstanding
Indebtedness, Liens or agreements of such Unrestricted Subsidiary and such
designation shall only be permitted if (i) such Indebtedness, Liens and
agreements are permitted under the covenants described in Article IV of this
Indenture, and (ii) no Default or Event of Default would be in existence
immediately following such designation.
"Weighted Average Life to Maturity" means, when applied to any
Indebtedness at any date, the number of years obtained by dividing (i) the sum
of the products obtained by multiplying (a) the amount of each then remaining
installment, sinking fund, serial maturity or other required payments of
principal, including payment at final maturity, in respect thereof, by (b) the
number of years (calculated to the nearest one-twelfth) that will elapse
between such date and the making of such payment, by (ii) the then outstanding
principal amount of such Indebtedness.
"Wholly Owned Restricted Subsidiary" of any Person means a
Restricted Subsidiary of such Person all of the outstanding Capital Stock or
other ownership interests of which (other than directors' qualifying shares)
shall at the time be owned by such Person or by one or more Wholly Owned
Restricted Subsidiaries of such Person.
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1.2. SECTION OTHER DEFINITIONS.
Defined in
Term Section
---- ----------
"Affiliate Transaction" . . . . . . . . . . . . . . . . . . . 4.11
"Asset Sale Offer" . . . . . . . . . . . . . . . . . . . . . . 4.10(b)
"Change of Control Offer" . . . . . . . . . . . . . . . . . . 4.14(a)
"Change of Control Payment" . . . . . . . . . . . . . . . . . 4.14(a)
"Change of Control Payment Date" . . . . . . . . . . . . . . . 4.14(b)
"Covenant Defeasance" . . . . . . . . . . . . . . . . . . . . 8.3
"Discharge" . . . . . . . . . . . . . . . . . . . . . . . . . 8.5
"DTC" . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.1(b)
"DTC Participants" . . . . . . . . . . . . . . . . . . . . . . 2.1(b)
"Event of Default" . . . . . . . . . . . . . . . . . . . . . . 6.1
"Excess Proceeds" . . . . . . . . . . . . . . . . . . . . . . 4.10(b)
"Global Note" . . . . . . . . . . . . . . . . . . . . . . . . 2.1(a)
"Legal Defeasance" . . . . . . . . . . . . . . . . . . . . . . 8.2
"Paying Agent" . . . . . . . . . . . . . . . . . . . . . . . . 2.3
"Payment Default" . . . . . . . . . . . . . . . . . . . . . . 6.1(e)
"Permitted Indebtedness" . . . . . . . . . . . . . . . . . . . 4.9(b)
"Register" . . . . . . . . . . . . . . . . . . . . . . . . . . 2.3
"Registrar" . . . . . . . . . . . . . . . . . . . . . . . . . 2.3
"Restricted Payments" . . . . . . . . . . . . . . . . . . . . 4.7(a)
"SEC" . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1.1 ("Commission")
SECTION 1.3. INCORPORATION BY REFERENCE OF TRUST INDENTURE ACT.
Whenever this Indenture refers to a provision of the TIA, the
provision is incorporated by reference in and made a part of this Indenture.
The following TIA terms used in this Indenture have the
following meanings:
"indenture securities" means the Notes;
"indenture security holder" means a Holder of a Note;
"indenture to be qualified" means this Indenture;
"indenture trustee" or "institutional trustee" means the
Trustee;
"obligor" on the Notes means the Company and any successor
obligor upon the Notes.
All other terms used in this Indenture that are defined by the
TIA, defined by TIA reference to another statute or defined by SEC rule under
the TIA have the meanings so assigned to them.
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SECTION 1.4. RULES OF CONSTRUCTION.
Unless the context otherwise requires:
(a) a term has the meaning assigned to it;
(b) an accounting term not otherwise defined has the
meaning assigned to it in accordance with GAAP;
(c) "or" is not exclusive;
(d) words in the singular include the plural, and in the
plural include the singular;
(e) provisions apply to successive events and
transactions;
(f) references to sections of or rules under the Exchange
Act or the Securities Act shall be deemed to include substitute, replacement of
successor sections or rules adopted by the SEC from time to time; and
(g) "herein," "hereof" and other words or similar import
refer to this Indenture as a whole (as amended or supplemented from time to
time) and not to any particular Article, Section or other subdivision.
ARTICLE 2
THE NOTES
SECTION 2.1. FORM AND DATING.
(a) General Form of Notes. The Notes and the Trustee's
certificate of authentication shall be substantially in the form of Exhibit A
hereto, which Exhibit is part of this Indenture. 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 issued
only in registered form without coupons and only in minimum 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 this
Indenture and the Company and the Trustee, by their execution and delivery of
this Indenture, expressly agree to such terms and provisions and to be bound
thereby. The Notes shall be issued initially in the form of a permanent,
global note in definitive, fully registered form, without coupons,
substantially in the form of Exhibit A hereto (including the text and schedule
called for by footnotes 1 and 2 thereto) (the "Global Note"). Upon issuance,
such Global Note shall be duly executed by the Company and authenticated by the
Trustee as hereinafter provided and deposited with the Trustee as custodian for
the Depositary. Any Certificated Note that may be issued pursuant to Section
2.06(a) hereof, shall be issued in the form of a note in definitive, fully
registered form, without coupons, substantially in the form set forth in
Exhibit A hereto (excluding the text and schedule called for by footnotes 1 and
2 thereto). Upon issuance, any such
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Certificated Note shall be duly executed by the Company and authenticated by
the Trustee as hereinafter provided.
(b) Form of Global Notes. Each Global Note (i) shall
represent such portion of the outstanding Notes as shall be specified therein,
(ii) shall provide that it shall represent the aggregate amount of outstanding
Notes from time to time endorsed thereon and that the aggregate amount of
outstanding Notes represented thereby may from time to time be reduced or
increased, as appropriate, to reflect exchanges and redemptions, (iii) shall be
registered in the name of the Depositary or its nominee, duly executed by the
Company and authenticated by the Trustee as provided herein, for credit to the
respective accounts of the Holders (or such accounts as they may direct) at the
Depositary, (iv) shall be delivered by the Trustee or its Agent to the
Depositary or a Note Custodian pursuant to the Depositary's instructions and
(v) shall bear a legend substantially to the following effect:
"Unless this certificate is presented by an authorized representative
of The Depository 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 required by an authorized representative of DTC (and any
payment hereon 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."
Members of, or participants in, the Depositary ("DTC Participants") shall have
no rights under this Indenture with respect to any Global Note held on their
behalf by the Depositary, and the Depositary may be treated by the Company, the
Trustee, and any agent of the Company or the Trustee as the absolute owner of
such Global Note for all purposes whatsoever. Notwithstanding the foregoing,
nothing herein shall prevent the Company, the Trustee, or any agent of the
Company or the Trustee from giving effect to any written certification, proxy
or other authorization furnished to the Depositary or impair, as between the
Depositary and its agent members, the operation of customary practices
governing the exercise of the rights of a Holder of any Note.
Whenever, as a result of an optional redemption of Notes by
the Company, a Change of Control Offer, an Asset Sale Offer or an exchange
pursuant to the second sentence of Section 2.06(a) hereof, a Global Note is
redeemed, repurchased or exchanged in part, such Global Note shall be
surrendered by the Holder thereof to the Trustee who shall cause an adjustment
to be made to Schedule A thereof so that the principal amount of such Global
Note will be equal to the portion of such Global Note not redeemed, repurchased
or exchanged and shall thereafter return such Global Note to such Holder,
provided that any such Global Note shall be in a principal amount of $1,000 or
an integral multiple thereof.
(c) Form of Certificated Notes. Certificated Notes may
be produced in any manner determined by the Officers of the Company executing
such Notes, as evidenced by their
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execution of such Notes. The Trustee must register Certificated Notes so
issued in the name of, and cause the same to be delivered to, such Person (or
its nominee). Except as provided in Section 2.6, any Person having a
beneficial interest in the Global Note may not exchange such beneficial
interest for fully Certificated Notes in duly registered form.
(d) Provisions Applicable to Forms of Notes. The Notes
may also have such additional provisions, omissions, variations or
substitutions as are not inconsistent with the provisions of this Indenture,
and may have such letters, numbers or other marks of identification and such
legends or endorsements placed thereon as may be required to comply with this
Indenture, any Applicable Law or with any rules made pursuant thereto or with
the rules of any securities exchange or governmental agency or as may be
determined consistently herewith by the Officers of the Company executing such
Notes, as conclusively evidenced by their execution of such Notes. All Notes
shall be otherwise substantially identical except as provided herein.
Subject to the provisions of this Article 2, a registered
Holder of a beneficial interest in a Global Note may grant proxies and
otherwise authorize any Person to take any action that a Holder is entitled to
take under this Indenture or the Notes.
SECTION 2.2. EXECUTION AND AUTHENTICATION.
An Officer of the Company shall sign the Notes for the Company
by manual or facsimile signature. The Company's seal may be reproduced on the
Notes and may be in facsimile form.
If an Officer of the Company whose signature is on a Note no
longer holds that office at the time a Note is authenticated, the Note shall
nevertheless be valid.
A Note shall not be valid or obligatory for any purpose or
entitled to the benefits of this Indenture until authenticated by the manual
signature of the Trustee or its authenticating agent. The signature shall be
conclusive evidence that the Note has been authenticated under this Indenture.
The Trustee shall, upon the delivery to the Trustee of a
written order of the Company signed by two Officers, from time to time,
authenticate Notes for original issue up to an aggregate principal amount of
$90,000,000. The aggregate principal amount of Notes outstanding at any time
may not exceed such amount except as provided in Section 2.7 hereof.
The Trustee may appoint an authenticating agent to
authenticate Notes. An authenticating agent may authenticate Notes whenever
the Trustee may do so. Each reference in this Indenture to authentication by
the Trustee includes authentication by such agent. An authenticating agent has
the same rights as an Agent to deal with the Company or an Affiliate of the
Company.
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SECTION 2.3. TRUSTEE, REGISTRAR AND PAYING AGENT.
The Company shall maintain an office or agency where Notes may
be presented for registration of transfer or for exchange ("Registrar") and an
office or agency where Notes may be presented for payment ("Paying Agent").
The Registrar shall keep a register ("Register") of the Notes and of their
transfer and exchange. The Company may also from time to time appoint one or
more co-registrars and one or more additional paying agents. The term
"Registrar" includes any co-registrar and the term "Paying Agent" includes any
additional paying agent. The Company may change any Paying Agent or Registrar
upon notice to the Holders. The Company shall notify the Trustee in writing of
the name and address of any Agent not a party to this Indenture. If the
Company fails to appoint or maintain another entity as Registrar or Paying
Agent, the Trustee shall act, subject to the last paragraph of this Section
2.3, as such. The Company or any of its Subsidiaries may act as Paying Agent
or Registrar; provided, however, that none of the Company, its Subsidiaries or
the Affiliates of the foregoing shall act (i) as Paying Agent in connection
with any redemption, offer to purchase, discharge or defeasance, as otherwise
specified in this Indenture, and (ii) as Paying Agent or Registrar if a Default
or Event of Default has occurred and is continuing.
The Company hereby appoints Bank One, N.A., at its Corporate
Trust Office, as the Trustee hereunder and Bank One, N.A., hereby accepts such
appointment. The Trustee shall have the powers and authority granted to and
conferred upon it in the Notes and hereby and such further powers and authority
to act on behalf of the Company as may be mutually agreed upon by the Company
and the Trustee, and the Trustee shall keep a copy of this Indenture available
for inspection during normal business hours at its Corporate Trust Office.
The Company initially appoints DTC to act as Depositary with
respect to the Global Notes.
The Company initially appoints the Trustee to act as the
Registrar and Paying Agent and to act as Note Custodian with respect to the
Global Notes.
All of the terms and provisions with respect to such powers
and authority contained in the Notes are subject to and governed by the terms
and provisions hereof.
The Trustee may resign as Registrar or Paying Agent upon 30
days prior written notice to the Company.
SECTION 2.4. PAYING AGENT TO HOLD MONEY IN TRUST.
The Company shall require each Paying Agent other than the
Trustee to agree in writing that the Paying Agent will hold in trust for the
benefit of the Holders and the Trustee all money held by the Paying Agent for
the payment of principal of, premium, if any, and interest on the Notes, and
shall notify the Trustee of any default by the Company in making any such
payment. While any such default continues, the Trustee may require a Paying
Agent to pay all money held by
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it to the Trustee. The Company at any time may require a Paying Agent to pay
all money held by it to the Trustee. Upon payment of all such money over to
the Trustee, the Paying Agent (if other than the Company or a Subsidiary) shall
have no further liability for the money. If the Company or a Subsidiary acts
as Paying Agent, it shall segregate and hold in a separate trust fund for the
benefit of the Holders all money held by it as Paying Agent. Upon any
bankruptcy or reorganization proceedings relating to the Company, the Trustee
shall serve as Paying Agent for the Notes.
SECTION 2.5. HOLDER LISTS.
The Trustee shall preserve in as current a form as is
reasonably practicable to it the most recent list available to it of the names
and addresses of all Holders and shall otherwise strictly comply with TIA
Section 312(a). If the Trustee is not the Registrar, the Company shall
furnish to the Trustee at least ten 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 require of the names and
addresses of the Holders of Notes and the Company shall otherwise strictly
comply with TIA Section 312(a).
SECTION 2.6. TRANSFER AND EXCHANGE.
(a) The Global Note shall be exchanged by the Company for
one or more Certificated Notes if (a) the Depositary (i) has notified the
Company that it is unwilling or unable to continue as, or ceases to be, a
clearing agency registered under Section 17A of the Exchange Act and (ii) a
successor to the Depositary registered as a clearing agency under Section 17A
of the Exchange Act is not able to be appointed by the Company within 90
calendar days or (b) the Depositary is at any time unwilling or unable to
continue as Depositary and a successor to the Depositary is not able to be
appointed by the Company within 90 calendar days. If an Event of Default
occurs and is continuing, the Company shall, at the request of the Holder
thereof, exchange all or part of the Global Note for one or more Certificated
Notes; provided that the principal amount of each of such Certificated Notes
and such Global Note, after such exchange, shall be $1,000 or an integral
multiple thereof. In addition, the Holder of a beneficial interest in the
Global Note may at any time exchange such interest for a Certificated Note in a
principal amount of $1,000 or an integral multiple thereof. Whenever a Global
Note is exchanged as a whole for one or more Certificated Notes, such Global
Note shall be surrendered by the Holder thereof to the Trustee for
cancellation. Whenever a Global Note is exchanged in part for one or more
Certificated Notes pursuant to this Section 2.06(a), it shall be surrendered by
the Holder thereof to the Trustee and the Trustee shall make the appropriate
notations thereon pursuant to Section 2.1(b) hereof. All Certificated Notes
issued in exchange for a Global Note or any portion thereof shall be registered
in such names, and delivered, as the Depositary shall instruct the Trustee.
(b) A Holder may transfer a Note only upon the surrender
of such Note for registration of transfer. No such transfer shall be effected
until, and the transferee shall succeed to the rights of a Holder only upon,
final acceptance and registration of the transfer in the Register by the
Registrar. When Notes are presented to the Registrar with a request to
register the transfer of,
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or to exchange, such Notes, the Registrar shall register the transfer or make
such exchange as requested if its requirements for such transactions and any
applicable requirements hereunder are satisfied. To permit registrations of
transfers and exchanges, the Company shall execute and the Trustee shall
authenticate Certificated Notes at the Registrar's request.
(c) The Company shall not be required to make and the
Registrar need not register transfers or exchanges of Certificated Notes (i)
selected for redemption (except, in the case of Certificated Notes to be
redeemed in part, the portion thereof not to be redeemed) and (ii) for a period
of 15 calendar days before a selection of Notes to be redeemed.
(d) No service charge shall be made for any registration
of transfer or exchange of Notes, but the Company may require payment by
Holders of a sum sufficient to cover any tax or other governmental charge that
may be imposed in connection with any registration of transfer of Notes.
(e) All Notes issued upon any registration of transfer or
exchange pursuant to the terms of this Indenture will evidence the same debt
and will be entitled to the same benefits under this Indenture as the Notes
surrendered for such registration of transfer or exchange.
(f) Any Holder of a Global Note shall, by acceptance of
such Global Note, agree that transfers of beneficial interests in such Global
Note may be effected only through a book entry system maintained by such Holder
(or its agent), and that ownership of a beneficial interest in the Notes
represented thereby shall be required to be reflected in book entry form.
Transfers of a Global Note shall be limited to transfers in whole and not in
part, to the Depositary, its successors, and their respective nominees.
Interests of beneficial owners in a Global Note shall be transferred in
accordance with the rules and procedures of the Depositary (or its successors).
SECTION 2.7. REPLACEMENT NOTES.
If any mutilated Note is surrendered to the Trustee, or the
Company and the Trustee receive evidence to their satisfaction of the
destruction, loss or theft of any Note, the Company shall, upon the written
request of the Holder thereof, issue and the Trustee, upon the written order of
the Company signed by two Officers of the Company, shall authenticate a
replacement Note if the Trustee's requirements are met. If required by the
Trustee or the Company, an indemnity bond must be supplied by such Holder that
is sufficient in the judgment of the Trustee and the Company to protect the
Company, the Trustee, any Agent and any authenticating agent from any loss that
any of them may suffer if a Note is replaced. The Company may charge for its
expenses in replacing a Note.
Every replacement Note is an additional obligation of the
Company and shall be entitled to all of the benefits of this Indenture equally
and proportionately with all other Notes duly issued hereunder.
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The provisions of this Section 2.7 are exclusive and shall
preclude (to the extent lawful) all other rights and remedies with respect to
the replacement or payment of mutilated, destroyed, lost or stolen Notes.
SECTION 2.8. OUTSTANDING NOTES.
The Notes outstanding at any time are all the Notes
authenticated by the Trustee except for those canceled by it (or its agent),
those delivered to it (or its agent) for cancellation, those reductions in the
interest in a Global Note effected by the Trustee in accordance with the
provisions hereof, and those described in this Section as not outstanding.
Except as set forth in Section 2.9 hereof, a 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 2.7 hereof, it
ceases to be outstanding unless the Trustee receives proof satisfactory to it
that the replaced Note (other than a mutilated Note surrendered for
replacement) is held by a bona fide purchaser (as such term is defined in
Section 8-302 of the Uniform Commercial Code as in effect in the State of New
York).
If the principal amount of any Note is considered paid under
Section 4.1 hereof, it ceases to be outstanding and interest on it ceases to
accrue.
If the Paying Agent (other than the Company, a Subsidiary or
an Affiliate of any thereof) holds, on a redemption date or maturity date,
money sufficient to pay Notes payable on that date, then on and after that date
such Notes shall be deemed to be no longer outstanding and shall cease to
accrue interest.
SECTION 2.9. TREASURY NOTES.
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 considered as though not outstanding, except that for the purposes of
determining whether the Trustee shall be protected in relying on any such
direction, waiver or consent, only Notes that a Responsible Officer of the
Trustee has actual knowledge are so owned shall be so disregarded.
SECTION 2.10. TEMPORARY NOTES.
Until definitive Notes are ready for delivery, the Company may
prepare and the Trustee shall authenticate temporary Notes upon a written order
of the Company signed by two Officers of the Company. Temporary Notes shall be
substantially in the form of definitive Notes but may have variations that the
Company considers appropriate for temporary Notes and as shall
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be reasonably acceptable to the Trustee. Without unreasonable delay, the
Company shall prepare and the Trustee shall authenticate definitive Notes in
exchange for temporary Notes.
Until such exchange, Holders of temporary Notes shall be
entitled to all of the benefits of this Indenture.
SECTION 2.11. CANCELLATION.
The Company at any time may deliver Notes to the Trustee or
its Agent for cancellation. The Registrar and Paying Agent shall forward to
the Trustee any Notes surrendered to them for registration of transfer,
exchange or payment. The Trustee (or its Agent) and no one else shall cancel
all Notes surrendered for registration of transfer, exchange, payment,
replacement or cancellation and shall destroy canceled Notes (subject to the
record retention requirement of the Exchange Act). Certification of the
destruction of all canceled Notes shall be delivered to the Company from time
to time. The Company may not issue new Notes to replace Notes that it has paid
or that have been delivered to the Trustee (or its Agent) for cancellation. If
the Company acquires any of the Notes, such acquisition shall not operate as a
redemption or satisfaction of the indebtedness represented by such Notes unless
and until the same are surrendered to the Trustee (or its Agent) for
cancellation pursuant to this Section 2.11.
SECTION 2.12. DEFAULTED INTEREST.
If the Company defaults in a payment of interest on the Notes,
it shall pay the defaulted interest in any lawful manner plus, to the extent
lawful, interest payable on the defaulted interest, to the Persons who are
Holders on a subsequent special record date, in each case at the rate provided
in the Notes and in Section 4.1 hereof. The Company shall notify the Trustee
in writing of the amount of defaulted interest proposed to be paid on each Note
and the date of the proposed payment. The Company shall fix or cause to be
fixed each such special record date and payment date, provided that no such
special record date shall be less than 10 days prior to the related payment
date for such defaulted interest. At least 15 days before the special record
date, the Company (or, upon the written request of the Company, the Trustee in
the name and at the expense of the Company) shall mail or cause to be mailed to
Holders a notice that states the special record date, the related payment date
and the amount of such defaulted interest to be paid.
SECTION 2.13. PERSONS DEEMED OWNERS.
Prior to due presentment for the registration of a transfer of
any Note, the Trustee, any Agent, the Company and any agent of the foregoing
shall deem and treat the Person in whose name any Note is registered as the
absolute owner of such Note for all purposes (including the purpose of
receiving payment of principal of and interest on such Notes; provided that
defaulted interest shall be paid as set forth in Section 2.12), and none of the
Trustee, any Agent, the Company or any agent of the foregoing shall be affected
by notice to the contrary.
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SECTION 2.14. CUSIP NUMBERS
Pursuant to a recommendation promulgated by the Committee on
Uniform Security Identification Procedures, the Company will print CUSIP
numbers on the Notes, and the Trustee may use CUSIP numbers in notices of
redemption and purchase as a convenience to Holders; provided, however, that
any such notices may state that no representation is made as to the correctness
of such numbers as printed on the Notes and that reliance may be placed only on
the other identification numbers printed on the Notes, and any such redemption
or purchase shall not be affected by any defect or omission in such numbers.
ARTICLE 3
REDEMPTION AND PREPAYMENT
SECTION 3.1. NOTICES TO TRUSTEE.
If the Company elects to redeem Notes pursuant to the optional
redemption provisions of Section 3.7 hereof, it shall furnish to the Trustee,
at least 30 days but not more than 60 days before a redemption date (unless a
shorter period is acceptable to the Trustee), an Officers' Certificate setting
forth (i) the clause of Section 3.7 pursuant to which the redemption shall
occur, (ii) the redemption date, (iii) the principal amount of Notes to be
redeemed, (iv) the redemption price and accrued and unpaid interest and (v)
whether it requests the Trustee to give notice of such redemption. Any such
notice may be canceled at any time prior to the mailing of notice of such
redemption to any Holder and shall thereby be void and of no effect.
SECTION 3.2. SELECTION OF NOTES TO BE REDEEMED.
If less than all of the Notes are to be redeemed at any time,
the Trustee shall select the Notes to be redeemed among the Holders of the
Notes in compliance with the requirements of the principal national securities
exchange, if any, on which the Notes are listed, or, if the Notes are not so
listed, on a pro rata basis, by lot or by such other method as the Trustee
shall deem fair and appropriate; provided that no Notes of $1,000 principal
amount or less shall be redeemed in part. In the event of partial redemption
by lot, the particular Notes to be redeemed shall be selected, unless otherwise
provided herein, not less than 30 nor more than 60 days prior to the redemption
date by the Trustee from the outstanding Notes not previously called for
redemption.
The Trustee shall promptly notify the Company in writing of
the Notes selected for redemption and, in the case of any Note selected for
partial redemption, the principal amount thereof to be redeemed. Notes and
portions of Notes selected shall be in amounts of $1,000 or whole multiples of
$1,000; except that if all of the Notes of a Holder are to be redeemed, the
entire outstanding amount of Notes held by such Holder, even if not a multiple
of $1,000, shall be
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redeemed. Except as provided in the preceding sentence, provisions of this
Indenture that apply to Notes called for redemption also apply to portions of
Notes called for redemption.
SECTION 3.3. NOTICE OF REDEMPTION.
At least 30 days but not more than 60 days before a redemption
date, the Company shall mail or cause to be mailed, by first class mail, a
notice of redemption to each Holder whose Notes are to be redeemed at such
Holder's registered address.
The notice shall identify the Notes to be redeemed and shall
state:
(a) the redemption date;
(b) the redemption price and accrued and unpaid interest;
(c) if any Note is being redeemed in part, the portion of
the principal amount of such Note to be redeemed and that, after the redemption
date upon surrender of such Note, a new Note or Notes in principal amount equal
to the unredeemed portion shall be issued upon cancellation of the original
Note;
(d) the name and address of the Paying Agent;
(e) that Notes called for redemption must be surrendered
to the Paying Agent to collect the redemption price;
(f) that, unless the Company defaults in making such
redemption payment, interest on Notes called for redemption ceases to accrue on
and after the redemption date and the only remaining right of the Holders of
such Notes is to receive payment of the redemption price upon surrender to the
Paying Agent of the Notes redeemed;
(g) the paragraph of the Notes and/or Section of this
Indenture pursuant to which the Notes called for redemption are being redeemed;
and
(h) that no representation is made as to the correctness
or accuracy of the CUSIP number, if any, listed in such notice or printed on
the Notes.
At the Company's request, the Trustee shall give the notice of
redemption in the Company's name and at its expense; provided, however, that
the Company shall have delivered to the Trustee, at least 40 days prior to the
redemption date (unless a shorter period is acceptable to the Trustee), an
Officers' Certificate requesting that the Trustee give such notice and setting
forth the information to be stated in such notice as provided in the preceding
paragraph.
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SECTION 3.4. EFFECT OF NOTICE OF REDEMPTION.
Unless otherwise stated therein, once notice of redemption is
mailed in accordance with Section 3.3 hereof, Notes called for redemption
become irrevocably due and payable on the redemption date at the redemption
price.
SECTION 3.5. DEPOSIT OF REDEMPTION PRICE.
On or prior to the redemption date, the Company shall deposit
with the Paying Agent (other than the Company or any of its Subsidiaries) money
sufficient in same day funds to pay the redemption price of and accrued
interest on all Notes to be redeemed on that date. The Paying Agent shall
promptly return to the Company any money deposited with the Paying Agent by the
Company in excess of the amounts necessary to pay the redemption price of, and
accrued interest on, all Notes to be redeemed. If the money is deposited on
the redemption date, such deposit shall be made by 10:00 a.m. New York City
time.
If the Company complies with the provisions of the preceding
paragraph, on and after the redemption date, interest shall cease to accrue on
the Notes or the portions of Notes called for redemption whether or not such
Notes are presented for payment, and the only remaining right of the Holders of
such Notes shall be to receive payment of the redemption price upon surrender
to the Paying Agent of the Notes redeemed. If a Note is redeemed on or after
an interest record date but on or prior to the related interest payment date,
then any accrued and unpaid interest shall be paid to the Person in whose name
such Note was registered at the close of business on such record date. If any
Note called for redemption shall not be so paid upon surrender for redemption
because of the failure of the Company to comply with the preceding paragraph,
interest shall be paid on the unpaid principal from the redemption date until
such principal is paid and to the extent lawful, on any interest not paid on
such unpaid principal, in each case at the rate provided in the Notes and in
Section 4.1 hereof.
SECTION 3.6. NOTES REDEEMED IN PART.
Upon surrender of a Note that is redeemed in part, the Company
shall issue and, upon the Company's written request, the Trustee shall
authenticate for the Holder at the expense of the Company a new Note equal in
principal amount to the unredeemed portion of the Note surrendered.
SECTION 3.7. OPTIONAL REDEMPTION.
(a) Except as set forth in clause (b) of this Section
3.7, the Company shall not have the option to redeem the Notes pursuant to this
Section 3.7 prior to _______________, 2003. Thereafter, the Notes will be
subject to redemption at the option of the Company, in whole or in part, upon
not less than 30 nor more than 60 days' notice, at the redemption prices
(expressed as percentages of principal amount) set forth below, plus accrued
and unpaid interest thereon to the
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applicable redemption date, if redeemed during the twelve-month period
beginning on _____________ of the years indicated below:
YEAR PERCENTAGE
---- ----------
2003 ______%
2004 ______%
2005 ______%
2006 and thereafter 100.000%
(b) Notwithstanding the foregoing, on and prior to
September 15, 2001, the Company, at its option, may redeem, from time to time,
up to 35% of the aggregate principal amount of the Notes at a redemption price
of _______% of the principal amount thereof, plus accrued and unpaid interest
thereon to the redemption date with the net proceeds of a Public Equity
Offering; provided that no less than 65% of the aggregate principal amount of
the Notes initially issued remains outstanding immediately after giving effect
to such redemption; and provided, further, that notice of such redemption shall
have been given not later than 30 days, and such redemption shall occur not
later than 90 days, after the date of the closing of the transaction giving
rise to such Public Equity Offering.
(c) Any redemption pursuant to this Section 3.7 shall be
made pursuant to the provisions of Sections 3.1 through 3.6 hereof.
SECTION 3.8. MANDATORY REDEMPTION.
Except as set forth under Sections 4.10 and 4.14 hereof, the
Company shall not be required to repurchase the Notes or make mandatory
redemption or sinking fund payments with respect to the Notes.
ARTICLE 4
COVENANTS
SECTION 4.1. PAYMENT OF NOTES.
The Company shall pay or cause to be paid in New York, New
York the principal of, premium, if any, and interest on the Notes on the dates
and in the manner provided herein and in the Notes. Principal, premium, if
any, and interest shall be considered paid on the date due if the Paying Agent
(or, with respect to the first two interest payments, the Pledge Agent under
the Pledge Agreement), if other than the Company or a Subsidiary thereof, holds
as of 10:00 a.m. New York City time on the due date money deposited by the
Company in same day funds and designated for and sufficient to pay all
principal, premium, if any, and interest then due. The Paying Agent shall
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return to the Company, no later than three Business Days following the date of
payment, any money (including accrued interest) in excess of the amounts paid
on the Notes.
The Company shall pay interest (including post-petition
interest in any proceeding under any Bankruptcy Law) on overdue principal at
the rate specified therefor in the Notes; it shall pay interest (including
post-petition interest in any proceeding under any Bankruptcy Law to the extent
that such interest is an allowed claim against the debtor under such Bankruptcy
Law) on overdue installments of interest (without regard to any applicable
grace period) at the same rate to the extent lawful.
SECTION 4.2. MAINTENANCE OF OFFICE OR AGENCY.
The Company shall maintain in the Borough of Manhattan, the
City of New York, an office or agency (which may be an office of the Trustee or
an affiliate of the Trustee, Registrar or co-registrar) where Notes may be
surrendered for registration of transfer or for exchange and where notices and
demands to or upon the Company in respect of the Notes and this Indenture may
be served. The Company shall give prompt written notice to the Trustee of the
location, and any change in the location, of such office or agency. If at any
time the Company shall fail to maintain any such required office or agency or
shall fail to furnish the Trustee with the address thereof, such presentations,
surrenders, notices and demands may be made or served at the Corporate Trust
Office of the Trustee.
The Company may also from time to time designate one or more
other offices or agencies where the Notes may be presented or surrendered for
any or all such purposes and may from time to time rescind such designations;
provided, however, that no such designation or rescission shall in any manner
relieve the Company of its obligation to maintain an office or agency in the
Borough of Manhattan, the City of New York for such purposes. The Company
shall give prompt written notice to the Trustee of any such designation or
rescission and of any change in the location of any such other office or
agency.
The Company hereby designates the Corporate Trust Office of
the Trustee as one such office or agency of the Company in accordance with
Section 2.3.
SECTION 4.3. PROVISIONS OF REPORTS AND OTHER INFORMATION.
(a) Whether or not required by the rules and regulations
of the Commission, so long as any Notes are outstanding, the Company will
furnish to the Trustee and the Holders of Notes (i) all quarterly and annual
financial information that would be required to be contained in a filing with
the Commission on Forms 10-Q and 10-K if the Company were required to file such
forms, including a "Management's Discussion and Analysis of Financial Condition
and Results of Operations" that describes the financial condition and results
of operations of the Company and its Subsidiaries and, with respect to the
annual information only, a report thereon by the Company's certified
independent accountants and (ii) all current reports that would be required to
be filed with
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the Commission on Form 8-K if the Company were required to file such reports.
In addition, whether or not required by the rules and regulations of the
Commission, the Company will file a copy of all such information and reports
with the Commission for public availability (unless the Commission will not
accept such a filing) and make such information available to securities
analysts and prospective investors upon request. If required by the terms
thereof, the Company shall also comply with the provisions of TIA Section
314(a).
(b) If the Company instructs the Trustee to distribute
any of the documents described in Section 4.3(a) to the Holders, the Company
shall provide the Trustee with a sufficient number of copies of all such
documents that the Company may be required to deliver to such Holders.
SECTION 4.4. COMPLIANCE CERTIFICATE.
(a) The Company shall deliver to the Trustee, within 45
days after the end of each fiscal year, an Officers' Certificate stating that a
review of the activities of the Company and its Subsidiaries during the
preceding fiscal year has been made under the supervision of the signing
Officers with a view to determining whether the Company has kept, observed,
performed and fulfilled its obligations under this Indenture, and further
stating, as to each such Officer signing such certificate, that to the best of
his or her knowledge the Company has kept, observed, performed and fulfilled
each and every covenant contained in this Indenture and is not in default in
the performance or observance of any of the terms, provisions and conditions of
this Indenture (or, if a Default or Event of Default shall have occurred,
describing all such Defaults or Events of Default of which he or she may have
knowledge and what action the Company is taking or proposes to take with
respect thereto) and that to the best of his or her knowledge no event has
occurred and remains in existence by reason of which payments on account of the
principal of, or interest on, the Notes are prohibited or, if such event has
occurred, a description of the event and what action the Company is taking or
proposes to take with respect thereto.
(b) So long as not contrary to the then current
recommendations of the American Institute of Certified Public Accountants, the
year-end financial statements delivered pursuant to Section 4.3 above shall be
accompanied by a written statement of the Company's independent public
accountants (who shall be a firm of established national reputation) that in
making the examination necessary for certification of such financial
statements, nothing has come to their attention that would lead them to believe
that the Company has violated any provisions of Article 4 or Article 5 hereof
or, if any such violation has occurred, specifying the nature and period of
existence thereof, it being understood that such accountants shall not be
liable directly or indirectly to any Person for any failure to obtain knowledge
of any such violation.
(c) The Company shall, so long as any of the Notes are
outstanding, deliver to the Trustee, forthwith upon any Officer becoming aware
of any Default or Event of Default, an Officers' Certificate specifying such
Default or Event of Default and what action the Company is taking or proposes
to take with respect thereto.
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SECTION 4.5. TAXES.
The Company shall pay, and shall cause each of its
Subsidiaries to pay, prior to delinquency, all material taxes, assessments, and
governmental levies except (i) such as are contested in good faith and by
appropriate proceedings or (ii) such as for which reserve or other appropriate
provision, if any, as shall be required to be in conformity with GAAP, has been
made therefor, or (iii) where the failure to effect such payment is not adverse
in any material respect to the Holders of the Notes.
SECTION 4.6. STAY, EXTENSION AND USURY LAWS.
The Company and each Subsidiary Guarantor covenants (to the
extent that it may lawfully do so) that it shall not at any time insist upon,
plead, or in any manner whatsoever claim or take the benefit or advantage of,
any stay, extension or usury law wherever enacted, now or at any time hereafter
in force, that may affect the covenants or the performance of this Indenture;
and the Company and each Subsidiary Guarantor (to the extent that it may
lawfully do so) hereby expressly waives all benefit or advantage of any such
law, and covenants that it shall not, by resort to any such law, hinder, delay
or impede the execution of any power herein granted to the Trustee, but shall
suffer and permit the execution of every such power as though no such law has
been enacted.
SECTION 4.7. LIMITATION ON RESTRICTED PAYMENTS.
(a) The Company will not, and will not permit any of its
Restricted Subsidiaries to, directly or indirectly: (i) declare or pay any
dividend or make any other payment or distribution on account of the Company's
or any Restricted Subsidiary's Equity Interests (including, without limitation,
any payment in connection with any merger or consolidation) other than
dividends or distributions (A) paid or payable in Equity Interests (other than
Disqualified Stock) of the Company or (B) paid or payable to the Company or any
Wholly Owned Restricted Subsidiary of the Company; (ii) purchase, redeem or
otherwise acquire or retire for value any Equity Interests of the Company or
any Affiliate of the Company or any Restricted Subsidiary of the Company (other
than any such Equity Interests owned by the Company or any Wholly Owned
Restricted Subsidiary of the Company); (iii) make any principal payment on, or
purchase, redeem, defease or otherwise acquire or retire for value prior to the
scheduled maturity, scheduled repayment or scheduled sinking fund payment, any
Subordinated Indebtedness (except, if no Default or Event of Default is
continuing or would result therefrom, any such payment, purchase, redemption,
defeasance or other acquisition or retirement for value made out of Excess
Proceeds available for general corporate purposes if (1) such payment or other
action is required by the indenture or other agreement or instrument pursuant
to which such Subordinated Indebtedness was issued and (2) the Company has
purchased all Notes and other senior Indebtedness properly tendered pursuant to
an Asset Sale Offer required under Section 4.10; or (iv) make any Restricted
Investment (all such payments and other actions set forth in clauses (i)
through (iv) above being collectively referred to hereinafter as "Restricted
Payments"), unless, at the time of and after giving effect to such Restricted
Payment:
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(i) no Default or Event of Default shall have
occurred and be continuing or would occur as a consequence
thereof;
(ii) the Company would, at the time of such
Restricted Payment and after giving pro forma effect thereto
as if such Restricted Payment had been made at the beginning
of the applicable fiscal quarter, have been permitted to Incur
at least $1.00 of additional Indebtedness pursuant to the
Consolidated Interest Coverage Ratio test set forth in Section
4.9(a); and
(iii) such Restricted Payment, together with the
aggregate amount of all other Restricted Payments declared or
made by the Company and its Restricted Subsidiaries after the
Closing Date shall not exceed, at the date of determination,
the sum of (1) 50% of aggregate Consolidated Net Income of the
Company from the beginning of the first fiscal quarter
commencing after the Closing Date to the end of the Company's
most recently ended fiscal quarter for which financial
statements are available at the time of such Restricted
Payment (or, if such aggregate Consolidated Net Income for
such period is a deficit, less 100% of such deficit), plus (2)
100% of the aggregate net cash proceeds received by the
Company from the issue or sale after the Closing Date of
Equity Interests of the Company or of Disqualified Stock or
debt securities of the Company that have been converted into
such Equity Interests (other than Equity Interests (or
Disqualified Stock or convertible debt securities) sold to a
Subsidiary of the Company and other than Disqualified Stock or
debt securities that have been converted into Disqualified
Stock), plus (3) the aggregate net cash proceeds received by
the Company as capital contributions to the Company (other
than from a Subsidiary of the Company) after the Closing Date,
plus (4) if any Restricted Investment that was made after the
Closing Date is sold for cash, to the extent such amount is
not included in the Consolidated Net Income of the Company,
the lesser of (A) the Net Proceeds from such sale to the
extent received by the Company or any Restricted Subsidiary,
and (B) the initial amount of such Restricted Investment, plus
(5) in the event an Unrestricted Subsidiary is redesignated as
a Restricted Subsidiary, an amount equal to the lesser of (A)
the book value of such Unrestricted Subsidiary, and (B) the
Fair Market Value of such Unrestricted Subsidiary.
(b) The foregoing provisions of this Section 4.7 shall
not prohibit the following Restricted Payments:
(i) the payment of any dividend or other
distribution within 60 days after the date of declaration
thereof, if at said date of declaration such payment would
have complied with the provisions of this Indenture;
(ii) the redemption, repurchase, retirement or
other acquisition of any Equity Interests of the Company
(other than Disqualified Stock) in exchange for, or
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out of the proceeds of, the substantially concurrent sale
(other than to a Subsidiary of the Company) of other Equity
Interests of the Company (other than Disqualified Stock);
provided that the amount of any such net cash proceeds that
are utilized for any such redemption, repurchase, retirement
or other acquisition shall be excluded from clause (iii) of
the preceding subsection 4.7(a) (both for purposes of
determining the aggregate amount of Restricted Payments made
and for purposes of determining the aggregate amount of
Restricted Payments permitted);
(iii) the payment, purchase, redemption, defeasance
or other acquisition or retirement for value of Subordinated
Indebtedness with the net cash proceeds from a substantially
concurrent Incurrence of Permitted Refinancing Indebtedness or
the substantially concurrent sale (other than to a Subsidiary
of the Company) of Equity Interests of the Company (other than
Disqualified Stock); provided that the amount of any such net
cash proceeds that are utilized for any such payment,
purchase, redemption, defeasance or other acquisition or
retirement shall be excluded from clause (iii) of the
preceding subsection 4.7(a) (both for purposes of determining
the aggregate amount of Restricted Payments made and for
purposes of determining the aggregate amount of Restricted
Payments permitted);
(iv) any Restricted Investment made with the net
cash proceeds from a substantially concurrent sale (other than
to a Subsidiary of the Company) of Equity Interests of the
Company (other than Disqualified Stock); and
(v) so long as no Default or Event of Default is
continuing, any Restricted Investment which, together with all
other Restricted Investments outstanding made pursuant to this
clause (v) does not exceed $3 million.
Except to the extent specifically noted above, Restricted
Payments made pursuant to this Section 4.7(b) shall be included in calculating
the amount of Restricted Payments made after the Closing Date.
(c) The Board of Directors of the Company may designate
any Restricted Subsidiary to be an Unrestricted Subsidiary if (i) such
designation would not cause a Default or Event of Default, (ii) at the time of
and after giving effect to such designation, the Company could incur $1.00 of
additional Indebtedness pursuant to the Consolidated Interest Coverage Ratio
test set forth in Section 4.9(a), and (iii) each of the other requirements of
the definition of the term "Unrestricted Subsidiary" are satisfied. For
purposes of making such determination, all outstanding Investments by the
Company and its Restricted Subsidiaries (except to the extent repaid in cash)
in the Subsidiary so designated will be deemed to be Restricted Payments at the
time of such designation and will reduce the amount available for Restricted
Payments under the first paragraph of this covenant. All such outstanding
Investments will be deemed to constitute Restricted Payments in an amount equal
to the greater of (i) the net book value of such Investments at the time of
such designation and (ii) the Fair Market Value of such Investments at the time
of such designation. Such
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designation will only be permitted if such Restricted Payment would be
permitted at such time and if such Restricted Subsidiary otherwise meets the
definition of an Unrestricted Subsidiary. Upon being so designated as an
Unrestricted Subsidiary, any Subsidiary Guarantee that was previously executed
by such Unrestricted Subsidiary shall be deemed terminated.
(d) The amount of all Restricted Payments not made in
cash shall be the Fair Market Value (which, if it exceeds $1 million, shall be
determined by, and set forth in, a resolution of the Board of Directors of the
Company and described in an Officers' Certificate delivered to the Trustee) on
the date of the Restricted Payment of the asset(s) proposed to be transferred
by the Company or any Restricted Subsidiary, as the case may be, pursuant to
the Restricted Payment. Not later than the date of making any Restricted
Payment, the Company shall deliver to the Trustee an Officers' Certificate
stating that such Restricted Payments during such quarter were permitted and
setting forth the basis upon which the calculations required by this Section
4.7 were computed, which calculations may be based upon the Company's latest
available financial statements.
SECTION 4.8. LIMITATION ON DIVIDEND AND OTHER PAYMENT RESTRICTIONS
AFFECTING RESTRICTED SUBSIDIARIES.
The Company will not, and will not permit any of its
Restricted Subsidiaries to, directly or indirectly, create or otherwise cause
or suffer to exist or become effective any consensual encumbrance or
restriction on the ability of any Restricted Subsidiary to (i)(a) pay dividends
or make any other distributions to the Company or any of its Restricted
Subsidiaries on its Capital Stock or with respect to any other interest or
participation in, or measured by, its profits or (b) pay any Indebtedness owed
to the Company or any of its Restricted Subsidiaries, (ii) make loans or
advances to the Company or any of its Restricted Subsidiaries, (iii) transfer
any of its properties to the Company or any of its Restricted Subsidiaries,
(iv) grant any Liens in favor of the Holders of the Notes and the Trustee or
(v) guarantee the Notes or any renewals or refinancings thereof, except for
such encumbrances or restrictions existing under or by reason of (A) Existing
Indebtedness, (B) the Bank Credit Agreement, (C) applicable law, (D) any
instrument governing Indebtedness or Capital Stock of a Person acquired by the
Company or any of its Restricted Subsidiaries as in effect at the time of such
acquisition (except to the extent such Indebtedness was Incurred in connection
with or in contemplation of such acquisition), which encumbrance or restriction
is not applicable to any Person, or the properties of any Person, other than
the Person, or the property of the Person, so acquired, provided that in the
case of Indebtedness, such Indebtedness was permitted by the terms of this
Indenture to be Incurred, (E) customary non-assignment provisions in leases,
licenses, sales agreements or other contracts (but excluding contracts related
to the extension of credit) entered into in the ordinary course of business and
consistent with past practices, (F) restrictions imposed pursuant to a binding
agreement for the sale or disposition of all or substantially all of the Equity
Interests or assets of any Restricted Subsidiary, provided such restrictions
apply solely to the Equity Interests or assets being sold, (G) restrictions
imposed by Permitted Liens on the transfer of the assets that are subject to
such Liens, and (H) Permitted Refinancing Indebtedness Incurred to refinance
Existing Indebtedness or Indebtedness of the type described in clause (D)
above, provided that the restrictions contained in the agreements governing
such Permitted Refinancing Indebtedness
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are no more restrictive, as a whole, than those contained in the agreements
governing the Indebtedness being refinanced.
SECTION 4.9. LIMITATION ON INDEBTEDNESS.
(a) The Company will not, and will not permit any of its
Restricted Subsidiaries to, directly or indirectly, Incur any Indebtedness
(including Acquired Indebtedness), except for Permitted Indebtedness, unless
(i) at the time of such event and after giving effect thereto on a pro forma
basis the Company's Consolidated Interest Coverage Ratio for the four full
fiscal quarters immediately preceding such event, taken as one period, would
have been at least equal to (A) 2.0 to 1.0 for the first two years after the
Closing Date and (B) 2.25 to 1.0 thereafter and (ii) no Default or Event of
Default shall have occurred and be continuing at the time such additional
Indebtedness is Incurred or would occur as a consequence of the Incurrence of
such additional Indebtedness.
(b) "Permitted Indebtedness" means any and all of the
following:
(i) Indebtedness of the Company and its
Restricted Subsidiaries pursuant to the Bank Credit Agreement
(including all Guarantees thereof) in an aggregate amount not
to exceed the greater of (A) $20 million or (B) 85% of
Eligible Receivables, less the aggregate amount of all
payments thereon which are applied to permanently reduce the
outstanding amount of or the commitments with respect to such
Indebtedness;
(ii) Indebtedness represented by the Notes, this
Indenture, the Subsidiary Guarantees and the Pledge Agreement;
(iii) intercompany Indebtedness between or among
the Company and any of its Restricted Subsidiaries; provided
that (A) if the Company is an obligor on such Indebtedness,
such Indebtedness is expressly subordinate to the payment in
full of all Obligations with respect to the Notes and (B) any
subsequent issuance or transfer of Equity Interests that
results in any such Indebtedness being held by a Person other
than the Company or a Restricted Subsidiary of the Company, or
any sale or other transfer of any such Indebtedness to a
Person that is not either the Company or a Restricted
Subsidiary of the Company, shall be deemed to constitute a new
Incurrence of such Indebtedness by the Company or such
Restricted Subsidiary, as the case may be;
(iv) Permitted Refinancing Indebtedness Incurred
in exchange for, or the net proceeds of which are used to
extend, refinance, renew, replace, defease or refund, (A)
Indebtedness (other than Permitted Indebtedness) that was
Incurred in compliance with this Indenture, (B) Indebtedness
referred to in clause (b) (ii) of this Section, or (C)
Existing Indebtedness;
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(v) Indebtedness of a Restricted Subsidiary of
the Company constituting a Guarantee of Indebtedness of the
Company or a Restricted Subsidiary which Indebtedness was
Incurred pursuant to this Section 4.9(b) or the Consolidated
Interest Coverage Ratio test set forth in Section 4.9(a);
(vi) Hedging Obligations of the following types:
(A) Interest Rate ▇▇▇▇▇▇ the notional principal amount of
which does not exceed the principal amount of the Indebtedness
to which such Interest Rate Hedge relates, and (B) Currency
▇▇▇▇▇▇ that do not increase the outstanding loss potential or
liabilities other than as a result of fluctuations in foreign
currency exchange rates;
(vii) Indebtedness (in addition to Indebtedness
permitted by any other clause of this Section 4.9(b)) in an
aggregate principal amount at any time outstanding not to
exceed $5 million; and
(viii) Existing Indebtedness.
(c) For purposes of determining compliance with this
Section 4.9, (i) in the event that an item of Indebtedness meets the criteria
of more than one of the types of Indebtedness described herein, the Company, in
its sole discretion, will classify such item of Indebtedness and only be
required to include the amount and type of such Indebtedness in one of the
above clauses and (ii) an item of Indebtedness may be divided and classified in
more than one of the types of Indebtedness described herein.
SECTION 4.10. LIMITATION ON ASSET SALES.
(a) The Company will not, and will not permit any of its
Restricted Subsidiaries to, engage in an Asset Sale unless (i) the Company or
such Restricted Subsidiary, as the case may be, receives consideration at the
time of such Asset Sale at least equal to the Fair Market Value (which, if it
exceeds $1 million, shall be determined by, and set forth in, a resolution of
the Board of Directors of the Company and described in an Officers' Certificate
of the Company delivered to the Trustee) of the assets (including, if
appropriate, Equity Interests) disposed of or issued, as appropriate, and (ii)
at least 75% of the consideration therefor received by the Company or such
Restricted Subsidiary is in the form of cash or Cash Equivalents. For purposes
of this Section (and not for purposes of any other provision of this
Indenture), the term "cash" shall be deemed to include (i) any notes or other
obligations received by the Company or such Restricted Subsidiary as
consideration as part of such Asset Sale that are immediately converted by the
Company or such Restricted Subsidiary into actual cash (to the extent of the
actual cash so received), and (ii) any liabilities of the Company or such
Restricted Subsidiary (as shown on the most recent balance sheet of the Company
or such Restricted Subsidiary) that (A) are assumed by the transferee of the
assets which are the subject of such Asset Sale as consideration therefor in a
transaction the result of which is that the Company and all of its Subsidiaries
are released from all liability for such assumed liability, (B) are not by
their terms subordinated in right of payment to the Notes, (C) are not owed
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to the Company or any Subsidiary of the Company, and (D) constitute short-term
liabilities (as determined in accordance with GAAP).
(b) Within 180 days after the receipt of any Net Proceeds
from an Asset Sale, the Company may apply, directly or indirectly, such Net
Proceeds (a) to permanently reduce Indebtedness under the Bank Credit Agreement
(and to correspondingly reduce commitments with respect thereto) or (b) to
invest in properties and assets that will be used in the Shipyard Business of
the Company and its Restricted Subsidiaries. Pending the final application of
any such Net Proceeds, the Company may temporarily invest such Net Proceeds in
any manner that is not prohibited by this Indenture (including, without
limitation, to the reduction of Indebtedness under the Bank Credit Agreement).
Any Net Proceeds from Asset Sales that are not applied or invested as provided
in the first sentence of this Section 4.10(b) will be deemed to constitute
"Excess Proceeds." When the aggregate amount of Excess Proceeds exceeds $5
million, the Company will be required to make an offer to all Holders of Notes
and, if the Company is required to do so under the terms of any other senior
Indebtedness, to the holders of such other senior Indebtedness (an "Asset Sale
Offer") to purchase Notes and principal of such other senior Indebtedness, on a
pro rata basis, having an aggregate principal amount equal to the Excess
Proceeds, at an offer price in cash equal to, in the case of the Notes, 100% of
the principal amount thereof, plus accrued and unpaid interest thereon to the
date of purchase, and, in the case of all other senior Indebtedness, 100% of
the principal amount thereof, plus accrued and unpaid interest, or premium, if
any, thereon to the date of purchase, in accordance with the procedures set
forth in this Indenture. To the extent that the aggregate principal amount of
Notes tendered pursuant to an Asset Sale Offer is less than the Excess
Proceeds, the Company may use any remaining Excess Proceeds for general
corporate purposes. If the aggregate principal amount of Notes and such other
senior Indebtedness surrendered by holders thereof exceeds the amount of Excess
Proceeds, the Trustee shall select the Notes to be purchased in compliance with
the requirements of the principal national securities exchange, if any, on
which the Notes are listed or, if the Notes are not so listed, on a pro rata
basis with such other senior Indebtedness based on the outstanding principal
amounts thereof (with such adjustments as may be deemed appropriate by the
Company so that only Notes with denominations of $1,000 or integral multiples
thereof shall be purchased). Upon completion of such offer to purchase, the
amount of Excess Proceeds shall be reset at zero.
(c) The Company will not, and will not permit any of its
Restricted Subsidiaries to, transfer, convey, sell, lease or otherwise dispose
of any Capital Stock of any Restricted Subsidiary of the Company to any Person
(other than the Company or a Wholly Owned Restricted Subsidiary of the
Company), unless (i) such transfer, conveyance, sale, lease or other
disposition is of all of the Capital Stock of such Restricted Subsidiary owned
by the Company and its Restricted Subsidiaries or is otherwise permitted under
Section 4.13 and (ii) such transaction is conducted in accordance with clauses
(a) and (b) above.
(d) The Company will comply with the requirements of Rule
14e-1 under the Exchange Act and any other securities laws and regulations
thereunder to the extent such laws and regulations are applicable in connection
with the repurchase of Notes using Excess Proceeds.
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SECTION 4.11. LIMITATION ON TRANSACTIONS WITH AFFILIATES.
The Company will not, and will not permit any of its
Restricted Subsidiaries to, make any payment to, or sell, lease, transfer or
otherwise dispose of any of its properties or assets to, or purchase any
property or assets from, or enter into or make or amend any contract,
agreement, understanding, loan, advance or guarantee with, or for the benefit
of, any Affiliate of the Company (other than the Company or a Restricted
Subsidiary), in one transaction or a series of transactions (each of the
foregoing an "Affiliate Transaction"), unless (i) such Affiliate Transaction is
on terms that are no less favorable to the Company or the relevant Restricted
Subsidiary than those that would have been obtained in a comparable transaction
with an unrelated Person and (ii) the Company delivers to the Trustee (a) with
respect to any Affiliate Transaction or series of related Affiliate
Transactions after the Closing Date involving aggregate consideration in excess
of $500,000, an Officer's Certificate certifying that such Affiliate
Transaction complies with clause (i) above, (b) with respect to any Affiliate
Transaction or series of related Affiliate Transactions after the Closing Date
involving an aggregate consideration in excess of $2 million, a resolution
described in an Officers' Certificate, certifying that such Affiliate
Transaction complies with clause (i) above and such Affiliate Transaction has
been approved by a majority of the disinterested members of the Board of
Directors of the Company and (c) with respect to any Affiliate Transaction or
series of related Affiliate Transactions after the Closing Date involving
aggregate consideration in excess of $5 million, an opinion as to the fairness
to the Company of such Affiliate Transaction from a financial point of view
issued by an accounting, appraisal or investment banking firm of recognized
national standing; provided that the following types of transactions shall not
constitute Affiliate Transactions: (1) any transaction with an officer or
director of the Company or any Restricted Subsidiary in connection with such
individual's compensation (including directors' fees), employee benefits,
severance arrangements or indemnification (to the extent consistent with
applicable law and the charter and bylaws of the Company or such Restricted
Subsidiary), in each case entered into by the Company or any of its Restricted
Subsidiaries in the ordinary course of business, (2) transactions between or
among the Company and its Restricted Subsidiaries, (3) Restricted Payments that
are permitted by the provisions of Section 4.7; (4) sales of Capital Stock of
the Company made at prevailing market rates; and (5) loans to officers,
directors and employees of the Company and its Restricted Subsidiaries made in
the ordinary course of business in an aggregate amount not to exceed $1 million
at any one time outstanding.
SECTION 4.12. LIMITATION ON LIENS.
The Company will not, and will not permit any of its
Restricted Subsidiaries to, directly or indirectly, create, incur, affirm,
assume or suffer to exist any Lien of any kind on any property now owned or
hereafter acquired, or any income or profits therefrom or assign or convey any
right to receive income therefrom, unless (i) in the case of Liens securing
obligations subordinate to the Notes, the Notes are secured by a valid,
perfected Lien on such property that is senior in priority to such Liens, (ii)
in the case of Liens securing obligations subordinate to a Subsidiary
Guarantee, such Subsidiary Guarantee is secured by a valid, perfected Lien on
such property that is senior in priority to such Liens, and (iii) in all other
cases, the Notes (and, if such
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Lien secures obligations of a Restricted Subsidiary, a Subsidiary Guarantee of
such Restricted Subsidiary) are equally and ratably secured; provided, however,
that the foregoing shall not prohibit or restrict Permitted Liens.
SECTION 4.13. LIMITATION ON ISSUANCE AND SALE OF CAPITAL STOCK OF RESTRICTED
SUBSIDIARIES.
The Company will not, and will not permit any Restricted
Subsidiary to (i) sell, assign, transfer, convey or otherwise dispose of, any
Equity Interests of any Restricted Subsidiary, other than to the Company or a
Wholly Owned Restricted Subsidiary, (ii) permit any Restricted Subsidiary to
issue any Equity Interests (including, without limitation, pursuant to any
merger, consolidation, recapitalization or similar transaction) other than to
the Company or a Wholly Owned Restricted Subsidiary or (iii) permit any Person
other than the Company or a Wholly Owned Restricted Subsidiary to own any
Equity Interests of any Restricted Subsidiary, except for (A) a sale to a
Person of all of the Equity Interests of a Restricted Subsidiary, which sale
was made by the Company or a Restricted Subsidiary subject to, and in
compliance with, Section 4.10, (B) the issuance and subsequent ownership of
directors' qualifying shares, and (C) the Equity Interests of a Restricted
Subsidiary owned by a Person at the time such Restricted Subsidiary became a
Restricted Subsidiary or acquired by such Person in connection with the
formation of the Restricted Subsidiary, provided that the Equity Interests
owned by such Person do not exceed 20% of the total Equity Interests of such
Restricted Subsidiary.
SECTION 4.14. OFFER TO REPURCHASE UPON CHANGE OF CONTROL.
(a) Upon the occurrence of a Change of Control, the
Company will be required to make an offer (a "Change of Control Offer") to
repurchase all or any part (equal to $1,000 or an integral multiple thereof) of
each Holder's Notes, at an offer price in cash equal to 101% of the aggregate
principal amount thereof, plus accrued and unpaid interest thereon, to the date
of repurchase (the "Change of Control Payment").
(b) Notice of a Change of Control Offer shall be mailed
by the Company, with a copy to the Trustee, or, at the Company's option, by the
Trustee (at the Company's expense) not more than 20 calendar days after the
Change of Control to each Holder of the Notes at such Holder's last registered
address appearing in the Register. In such notice, the Company shall describe
the transaction that constitutes the Change of Control and offer to repurchase
Notes pursuant to the procedures required by this Section 4.14 and described in
such notice. The notice shall contain all instructions and materials necessary
to enable Holders to tender Notes pursuant to the Change of Control Offer. In
addition, the notice shall state: (1) that the Change of Control Offer is
being made pursuant to this Section 4.14 and that all Notes (or portions
thereof) properly tendered will be accepted for payment; (2) the Change of
Control Payment and the purchase date, which shall be no sooner than 30 nor
later than 60 days from the date on which the Company notifies the Holders of
the occurrence of the Change of Control (the "Change of Control Payment Date");
(3) that any Note (or portion thereof) not properly tendered will continue to
accrue interest; (4) that, unless the Company defaults in the payment of the
Change of Control Payment, all Notes (or portions thereof)
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accepted for payment pursuant to the Change of Control Offer shall cease to
accrue interest after the Change of Control Payment Date; and (5) the
procedures that Holders of Notes must follow in order to tender their Notes (or
portions thereof) for payment and the procedures that Holders of Notes must
follow in order to withdraw an election to tender Notes (or portions thereof)
for payment. The Company will comply with the requirements of Rule 14e-1 under
the Exchange Act and any other securities laws and regulations thereunder to
the extent such laws and regulations are applicable in connection with the
repurchase of the Notes as a result of a Change of Control.
(c) On the Change of Control Payment Date, the Company
will, to the extent lawful, (i) accept for payment all Notes or portions
thereof properly tendered pursuant to the Change of Control Offer, (ii) deposit
with the Trustee an amount equal to the Change of Control Payment in respect of
all Notes or portions thereof so tendered and (iii) deliver or cause to be
delivered to the Trustee the Notes so accepted together with an Officers'
Certificate stating the aggregate principal amount of Notes or portions thereof
being purchased by the Company. The Trustee will promptly mail to each Holder
of Notes so tendered the Change of Control Payment for such Notes, and the
Trustee will promptly authenticate and mail (or cause to be transferred by book
entry) to each Holder a new Note equal in principal amount to any unpurchased
portion of the Notes surrendered, if any; provided that each such new Note will
be in a principal amount of $1,000 or an integral multiple thereof. The Company
will publicly announce the results of the Change of Control Offer on or as soon
as practicable after the Change of Control Payment Date. Unless the Company
defaults in the payment for any Notes properly tendered pursuant to the Change
of Control Offer, any Notes accepted for payment pursuant to the Change of
Control Offer shall cease to accrue interest after the Change of Control
Payment Date.
(d) The Company will not be required to make a Change of
Control Offer upon a Change of Control if a third party makes the Change of
Control Offer in the manner, at the times and otherwise in compliance with the
requirements set forth in this Section 4.14 applicable to a Change of Control
Offer made by the Company and purchases all Notes validly tendered and not
withdrawn under such Change of Control Offer.
SECTION 4.15. LIMITATION ON SALE AND LEASEBACK TRANSACTIONS.
The Company will not, and will not permit any of its
Restricted Subsidiaries to, enter into any sale and leaseback transaction;
provided that the Company or any Restricted Subsidiary may enter into a sale
and leaseback transaction if (a) the Company could have (i) Incurred
Indebtedness in an amount equal to the Attributable Debt relating to such sale
and leaseback transaction pursuant to either (1) the Consolidated Interest
Coverage Ratio test set forth in Section 4.9(a) or (2) clause (vii) of Section
4.9(b) and (ii) incurred a Lien to secure such Indebtedness pursuant to Section
4.12, and (b) the sale portion of such sale and leaseback transaction complies
with Section 4.10, and the net proceeds from such sale are applied in
accordance with Section 4.10.
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SECTION 4.16. COVENANT WITH RESPECT TO BUSINESS ACTIVITIES.
The Company will not, and will not permit any of its
Restricted Subsidiaries to, engage in any business other than the Shipyard
Business.
SECTION 4.17. CORPORATE EXISTENCE
Except as otherwise permitted pursuant to the terms hereof,
the Company shall do or cause to be done all things necessary to preserve and
keep in full force and effect (i) its corporate existence, and the corporate,
partnership or other existence of each of its Subsidiaries, in accordance with
their respective organizational documents (as the same may be amended from time
to time), and (ii) the material rights (charter and statutory), licenses and
franchises of the Company and its Subsidiaries; provided, however, that the
Company shall not be required to preserve any such right, license or franchise
of itself or any of its Subsidiaries, or the corporate, partnership or other
existence of any of its Subsidiaries, if the Board of Directors shall determine
that the preservation thereof is no longer desirable in the conduct of the
business of the Company and its Subsidiaries, taken as a whole, and that the
loss thereof is not adverse in any material respect to the Holders of the
Notes.
SECTION 4.18. PLEDGE ACCOUNT
The Company shall, on the date hereof, enter into the Pledge
Agreement, and pursuant thereto, shall purchase and pledge to the Trustee, for
the benefit of the Holders of the Notes, the Pledged Securities, in such amount
as will be sufficient upon receipt of scheduled interest and principal payments
of such securities, in the opinion of a nationally recognized firm of
independent public accountants selected by the Company (to be delivered
promptly after the Closing Date), to provide for payment in full when due of
the first two scheduled interest payments on the Notes. If for any reason the
Pledged Securities, together with the other funds in the Pledge Account, shall
not, in the opinion of such independent public accounting firm, be sufficient
to provide for payment of such first two interest payments, the Company shall
immediately pledge to the Trustee pursuant to the Pledge Agreement additional
Pledged Securities or other funds in such amounts as shall be sufficient, in
the opinion of such independent public accounting firm, to provide for payment
in full of such interest payments, and shall promptly deliver an opinion from
such accounting firm with regard thereto.
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ARTICLE 5
SUCCESSORS
SECTION 5.1. MERGER, CONSOLIDATION, OR SALE OF ASSETS.
The Company may not consolidate or merge with or into (whether
or not the Company is the surviving entity), or sell, assign, transfer, lease,
convey or otherwise dispose of all or substantially all of its properties or
assets in one or more related transactions, to another Person, unless:
(i) the Company is the surviving entity, or the Person
formed by or surviving any such consolidation or merger (if other than
the Company) or to which such sale, assignment, transfer, lease,
conveyance or other disposition shall have been made is a corporation
organized or existing under the laws of the United States, any state
thereof or the District of Columbia;
(ii) the Person formed by or surviving any such
consolidation or merger (if other than the Company) or the Person to
which such sale, assignment, transfer, lease, conveyance or other
disposition shall have been made assumes all the obligations of the
Company under the Notes and this Indenture pursuant to a supplemental
indenture in a form reasonably satisfactory to the Trustee;
(iii) immediately after giving effect to such transaction,
no Default or Event of Default exists or would exist;
(iv) except in the case of a merger of the Company with or
into a Wholly Owned Restricted Subsidiary of the Company, the Company
or the Person formed by or surviving any such consolidation or merger
(if other than the Company) or to which such sale, assignment,
transfer, lease, conveyance or other disposition shall have been made
(A) will (treating any Indebtedness not previously an obligation of
the Company or any of its Restricted Subsidiaries as a result of such
transaction as having been Incurred at the time of such transaction)
have Consolidated Net Worth immediately after the transaction equal to
or greater than the Consolidated Net Worth of the Company immediately
preceding the transaction and (B) will, at the time of such
transaction and after giving pro forma effect thereto as if such
transaction had occurred at the beginning of the applicable fiscal
quarter, be permitted to Incur at least $1.00 of additional
Indebtedness pursuant to the Consolidated Interest Coverage Ratio test
set forth in Section 4.9(a); and
(v) the Company shall have delivered to the Trustee an
Officers' Certificate and an Opinion of Counsel, each stating that
such consolidation, merger or transfer and such supplemental indenture
(if any) comply with this Indenture.
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For purposes of the foregoing, the transfer (by lease,
assignment, sale or otherwise, in a single transaction or series of
transactions) of all or substantially all of the properties or assets of one or
more of the Restricted Subsidiaries of the Company, the Capital Stock of which
constitutes all or substantially all of the properties and assets of the
Company, shall be deemed to be the transfer of all or substantially all of the
properties and assets of the Company.
SECTION 5.2. SUCCESSOR COMPANY SUBSTITUTED.
Upon any consolidation or merger or any transfer of all or
substantially all of the assets of the Company and its Restricted Subsidiaries
taken as a whole in accordance with Section 5.1 hereof, the successor
corporation formed by such consolidation or into which the Company is merged or
to which such transfer 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 corporation had been named as the Company
herein; and thereafter, if the Company is dissolved following a transfer of all
or substantially all of its assets in accordance with this Indenture, the
Company shall be discharged and released from all obligations and covenants
under this Indenture and the Notes. The Trustee shall enter into a
supplemental indenture to evidence the succession and substitution of such
successor Person and such discharge and release of the Company.
ARTICLE 6
DEFAULTS AND REMEDIES
SECTION 6.1. EVENTS OF DEFAULT.
An "Event of Default" occurs if one of the following shall
have occurred (whatever the reason for such Event of Default and whether it
shall be voluntary or involuntary or be effected by operation of law or
pursuant to any judgment, decree or order of any court or any order, rule or
regulation of any administrative or governmental body):
(a) the Company defaults in the payment of interest on
the Notes when the same become due and payable, which default
continues for a period of 30 calendar days (provided that such 30-day
grace period shall be inapplicable for the first two Interest Payment
Dates);
(b) the Company defaults in the payment of the principal
of or premium, if any, on the Notes when the same become due and
payable whether at maturity, by acceleration, upon redemption or
repurchase, or otherwise;
(c) the Company or a Restricted Subsidiary fails to
comply with any of its obligations under Articles 5, 10 or 11 or
Sections 4.10, 4.14 or 4.18;
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(d) the Company or any Restricted Subsidiary of the
Company fails to comply with any of its covenants or agreements in the
Notes and this Indenture (other than those referred to in clauses (a),
(b) and (c) above and (i) below) and such failure continues for 30
calendar days after receipt by the Company of a notice of default
specifying such Default;
(e) a default under any mortgage, indenture or instrument
under which there may be issued or by which there may be secured or
evidenced any Indebtedness for money borrowed by the Company or any of
its Restricted Subsidiaries (or the payment of which is Guaranteed by
the Company or any of its Restricted Subsidiaries), whether such
Indebtedness or Guarantee now exists or is created after the date of
this Indenture, which default (i) is caused by a failure to pay
principal of or premium, if any, or interest on such Indebtedness
following the expiration of the grace period provided in such
Indebtedness on the date of such default (a "Payment Default") or (ii)
results in the acceleration of such Indebtedness (including any
obligation to redeem or repurchase such Indebtedness) prior to its
express maturity and, in each case, the principal amount of any such
Indebtedness, together with the principal amount of any other such
Indebtedness under which there has been a Payment Default or the
maturity of which has been so accelerated, aggregates $1 million or
more;
(f) failure by the Company or any of its Restricted
Subsidiaries to pay final non-appealable judgments rendered against
the Company or any of its Restricted Subsidiaries aggregating in
excess of $1 million, which judgments are not paid, discharge or
stayed for a period of 60 calendar days after such judgments become
final and non-appealable;
(g) the Company or any Restricted Subsidiary of the
Company pursuant to or within the meaning of any Bankruptcy Law: (i)
commences a voluntary case or proceeding, (ii) consents to the entry
of an order for relief against it in an involuntary case or
proceeding, (iii) consents to the appointment of a Custodian of it or
for all or substantially all of its property, (iv) makes a general
assignment for the benefit of its creditors, or (v) admits in writing
its inability to pay its debts generally as they become due;
(h) a court of competent jurisdiction enters an order or
decree under any Bankruptcy Law that: (i) is for relief against the
Company or any Restricted Subsidiary of the Company in an involuntary
case or proceeding, (ii) appoints a Custodian of the Company or any
Restricted Subsidiary of the Company or for all or substantially all
of its respective properties, (iii) orders the liquidation of the
Company or any Restricted Subsidiary of the Company, (iv) adjudicates
the Company or any Restricted Subsidiary of the Company as bankrupt or
insolvent, or (v) ratifies an accord or composition in bankruptcy
between the Company or a Restricted Subsidiary and the respective
creditors thereof; and in each case the order or decree remains
unstayed and in effect for 60 calendar days;
(i) breach by the Company of any representation or
warranty set forth in the Pledge Agreement, or default by the Company
in the performance of any covenant set forth
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in the Pledge Agreement and the expiration of any cure period set
forth therein, or repudiation by the Company of any of its obligations
under the Pledge Agreement or the unenforceability of the Pledge
Agreement against the Company for any reason (other than as permitted
pursuant to the terms thereof), which in any one of the foregoing
cases or in the aggregate results in a material impairment of the
rights intended to be afforded thereby; or
(j) any Guarantee of the Notes shall be held in a
judicial proceeding to be unenforceable or invalid or shall cease for
any reason to be in full force and effect, or any Restricted
Subsidiary, or any Person acting on behalf of any Restricted
Subsidiary, shall deny or disaffirm its obligations under its
Guarantee of any Notes.
A Default under clause (d) above is not an Event of Default
until the Trustee notifies the Company, or the Holders of at least 25% in
aggregate principal amount of the Notes at the time outstanding notify the
Company and the Trustee, of the Default and the Company does not cure such
Default within the time period specified in clause (d) above after receipt of
such notice. Such notice must be in writing and specify the Default, demand
that it be remedied and state that the notice is a "Notice of Default."
SECTION 6.2. ACCELERATION.
If any Event of Default (other than an Event of Default
described in clauses (g) and (h) of Section 6.1 hereof) occurs and is
continuing, then the Trustee or the Holders of at least 25% in aggregate
principal amount of the then outstanding Notes by written notice to the Company
(and to the Trustee, if given by the Holders) may declare the unpaid principal
of, and any accrued interest on, all the Notes to be due and payable
immediately. If any Event of Default specified in clauses (g) or (h) of
Section 6.1 hereof occurs, all outstanding principal and interest on the Notes
shall be immediately due and payable without any declaration or other act on
the part of the Trustee or any Holder. The Holders of a majority in aggregate
principal amount of the Notes then outstanding, by written notice to the
Trustee and to the Company, may rescind an acceleration (except an acceleration
due to a default in payment of the principal of, premium or interest on any of
the Notes) if the rescission would not conflict with any judgment or decree and
if all existing Events of Default (except nonpayment of principal, premium or
interest that have become due solely because of the acceleration) have been
cured or waived.
In the case of any Event of Default occurring by reason of any
willful action (or inaction) taken (or not taken) by or on behalf of the
Company or a Restricted Subsidiary with the intention of avoiding payment of
the premium that the Company would have had to pay if the Company then had
elected to redeem the Notes pursuant to Section 3.7(a), an equivalent premium
shall also become and be immediately due and payable to the extent permitted by
law upon the acceleration of the Notes. If an Event of Default occurs prior to
____________, 2003 by reason of any willful action (or inaction) taken (or not
taken) by or on behalf of the Company or a Restricted Subsidiary with the
intention of avoiding the prohibition on redemption of the Notes prior to such
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date, then the premium specified in Section 3.7(b) shall also become
immediately due and payable to the extent permitted by law upon the
acceleration of the Notes.
SECTION 6.3. OTHER REMEDIES.
Subject to Section 6.2, if an Event of Default occurs and is
continuing, the Trustee may pursue any available remedy by proceeding at law or
in equity to collect any payment due on the Notes or to enforce the performance
of any provision of the Notes or this Indenture.
The Trustee may maintain a proceeding even if it does not
possess any of the Notes or does not produce any of them in the proceeding. A
delay or omission by the Trustee or any Holder of a Note in exercising any
right or remedy accruing upon an Event of Default shall not impair the right or
remedy or constitute a waiver of or acquiescence in the Event of Default. All
remedies are cumulative to the extent permitted by law.
SECTION 6.4. WAIVER OF PAST DEFAULTS.
Subject to Section 9.2, Holders of a majority in aggregate
principal amount of the then outstanding Notes by notice to the Trustee may, on
behalf of the Holders of all of the Notes, waive an existing Default or Event
of Default and its consequences hereunder except a continuing Default or Event
of Default in the payment of the principal of, premium or interest on the
Notes. Upon any such waiver, such Default shall cease to exist, and any Event
of Default arising therefrom shall be deemed to have been cured for every
purpose of this Indenture; but no such waiver shall extend to any subsequent or
other Default or impair any right consequent thereon.
SECTION 6.5. CONTROL BY MAJORITY.
The Holders of a majority in aggregate principal amount of the
Notes then outstanding may direct the time, method and place of conducting any
proceeding for any remedy available to the Trustee or exercising any trust or
power conferred on it. However, the Trustee may refuse to follow any direction
that conflicts with law or this Indenture or that the Trustee determines may be
unduly prejudicial to the rights of another Holder or that involves the Trustee
in personal liability. The Trustee may take any other action deemed proper by
the Trustee that is not inconsistent with such direction.
SECTION 6.6. Limitation on Suits.
Subject to the provisions of Section 6.7 hereof, no Holder of
a Note may pursue any remedy with respect to this Indenture or the Notes
(including without limitation the institution of any proceeding, judicial or
otherwise, with respect to the Notes or this Indenture or for the appointment
of a receiver or trustee for the Company and/or any of its Subsidiaries)
unless:
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(a) the Holder has given to the Trustee written notice of
a continuing Event of Default;
(b) the Holders of at least 25% in aggregate principal
amount of the Notes then outstanding have made a written request to
the Trustee to pursue the remedy;
(c) such Holders have offered to provide to the Trustee
indemnity reasonably satisfactory to the Trustee against any loss,
liability or expense;
(d) the Trustee has not complied with the request within
60 calendar days after receipt of the request and the offer of
indemnity; and
(e) during such 60-day period, the Holders of a majority
in aggregate principal amount of the Notes then outstanding have not
given the Trustee a direction which, in the opinion of the Trustee, is
inconsistent with the request.
A Holder of a Note may not use this Indenture to prejudice the
rights of another Holder of a Note or to obtain a preference or priority over
another Holder of a Note.
SECTION 6.7. RIGHTS OF HOLDERS OF NOTES TO RECEIVE PAYMENT.
Notwithstanding any other provision of this Indenture, the
right of any Holder of a Note to receive payment of principal of, and premium,
if any, and interest on, the Note, on or after the respective due dates
expressed in the Note (including in connection with an offer to purchase), or
to bring suit for the enforcement of any such payment on or after such
respective dates, shall not be impaired or affected without the consent of such
Holder.
SECTION 6.8. COLLECTION SUIT BY TRUSTEE.
If an Event of Default specified in Section 6.1(a) or (b)
occurs and is continuing, the Trustee is authorized to recover judgment in its
own name and as trustee of an express trust against the Company for principal
of, and premium, if any, and interest on, the Notes and interest on overdue
principal and, to the extent lawful, interest, and such further amount as shall
be sufficient to cover the costs and expenses of collection, including the
reasonable compensation, expenses, disbursements and advances of the Trustee,
its agents and counsel.
SECTION 6.9. TRUSTEE MAY FILE PROOFS OF CLAIM.
The Trustee is authorized to file such proofs of claim and
other papers or documents as may be necessary or advisable in order to have the
claims of the Trustee (including any claim for the reasonable compensation,
expenses, disbursements and advances of the Trustee, its agents and counsel)
and the Holders of the Notes allowed in any judicial proceedings relative to
the Company (or any other obligor upon the Notes), its creditors or its
property and shall be entitled and
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empowered to collect, receive and distribute any money or other property
payable or deliverable on any such claims and any custodian in any such
judicial proceeding is hereby authorized by each Holder to make such payments
to the Trustee, and in the event that the Trustee shall consent to the making
of such payments directly to the Holders, to pay to the Trustee any amount due
to it for the reasonable compensation, expenses, disbursements and advances of
the Trustee, its agents and counsel, and any other amounts due the Trustee
under Section 7.7 hereof. To the extent that the payment of any such
reasonable compensation, expenses, disbursements and advances of the Trustee,
its agents and counsel, and any other amounts due the Trustee under Section 7.7
hereof out of the estate in any such proceeding, shall be denied for any
reason, payment of the same shall be secured by a Lien on, and shall be paid
out of, any and all distributions, dividends, money, securities and other
properties that the Holders may be entitled to receive in such proceeding
whether in liquidation or under any plan of reorganization or arrangement or
otherwise. Nothing herein contained shall be deemed to authorize the Trustee
to authorize or consent to or accept or adopt on behalf of any Holder any plan
of reorganization, arrangement, adjustment or composition affecting the Notes
or the rights of any Holder, or to authorize the Trustee to vote in respect of
the claim of any Holder in any such proceeding.
SECTION 6.10. PRIORITIES.
If the Trustee collects any money pursuant to this Article 6,
it shall pay out the money in the following order:
First: to the Trustee for amounts due under Section 7.7
hereof, including payment of all compensation, expense and liabilities
incurred, and all advances made, by the Trustee and the costs and expenses of
collection;
Second: to Holders of Notes for amounts due and unpaid on the
Notes for principal, premium, if any, and interest ratably, without preference
or priority of any kind, according to the amounts due and payable on the Notes
for principal, premium, if any, and interest, respectively; and
Third: the remainder to the Company or to such party as a
court of competent jurisdiction shall direct.
The Trustee may fix a record date and payment date for any
payment to Holders of Notes pursuant to this Section 6.10. At least 15
calendar days before such record date, the Company shall mail to each Holder
and the Trustee a notice that states the record date, the payment date and the
amount to be paid.
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SECTION 6.11. UNDERTAKING FOR COSTS.
In any suit for the enforcement of any right or remedy under
this Indenture or in any suit against the Trustee for any action taken or
omitted by it as a Trustee, each party to this Indenture agrees, and each
Holder by its acceptance of its Notes shall be deemed to have agreed, that any
court in its discretion may require the filing by any party litigant in the
suit of an undertaking to pay the costs of the suit, and the court in its
discretion may assess reasonable costs, including reasonable attorneys' fees,
against any party litigant in the suit, having due regard to the merits and
good faith of the claims or defenses made by the party litigant. This Section
does not apply to a suit by the Trustee, a suit by a Holder of a Note pursuant
to Section 6.7 hereof, or a suit by Holders of more than 10% in principal
amount of the then outstanding Notes.
ARTICLE 7
TRUSTEE
SECTION 7.1. DUTIES OF TRUSTEE.
(a) If an Event of Default has occurred and is
continuing, the Trustee shall exercise such of the rights and powers vested in
it by this Indenture, and use the same degree of care and skill in its
exercise, as a prudent Person would exercise or use under the circumstances in
the conduct of its own affairs.
(b) Except during the continuance of an Event of Default:
(i) the Trustee shall not be liable hereunder
except for such duties of the Trustee which shall be determined solely by the
express provisions of this Indenture and the Trustee need perform only those
duties that are specifically set forth in this Indenture and no others, and no
implied covenants or obligations shall be read into this Indenture against the
Trustee; and
(ii) in the absence of bad faith on its part, the
Trustee may conclusively rely, as to the truth of the statements and the
correctness of the opinions expressed therein, upon certificates or opinions
furnished to the Trustee and conforming to the requirements of this Indenture.
However, the Trustee shall examine the certificates and opinions to determine
whether or not such documents conform to the requirements of this Indenture.
(c) The Trustee may not be relieved from liabilities for
its own negligent action, its own negligent failure to act, or its own willful
misconduct, except that:
(i) this paragraph does not limit the effect of
paragraph (b) of this Section;
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(ii) the Trustee shall not be liable for any error
of judgment made in good faith by a Responsible Officer, unless it is proved
that the Trustee was negligent in ascertaining the pertinent facts; and
(iii) the Trustee shall not be liable with respect
to any action it takes or omits to take in good faith in accordance with a
direction received by it pursuant to Section 6.5 hereof.
(d) Whether or not therein expressly so provided, every
provision of this Indenture that in any way relates to the Trustee is subject
to paragraphs (a), (b), and (c) of this Section 7.1.
(e) No provision of this Indenture shall require the
Trustee to expend or risk its own funds or incur any liability whatsoever in
the performance of any of its duties hereunder or in the exercise of any of its
rights or powers hereunder. The Trustee shall be under no obligation to
exercise any of its rights and powers under this Indenture at the request of
any Holders, unless such Holder shall have offered to the Trustee security and
indemnity satisfactory to it in its sole subjective discretion (which
discretion shall be exercised in good faith) against any loss, liability or
expense.
(f) The Trustee shall not be liable for interest on any
money received by it except as the Trustee may agree in writing with the
Company. Money held in trust by the Trustee need not be segregated from other
funds except to the extent required by law.
(g) Every provision of this Indenture relating to the
conduct or affecting the liability of or affording protection to the Trustee
shall be subject to the provision of this Section 7.1 and to the provisions of
the TIA.
SECTION 7.2. RIGHTS OF TRUSTEE.
(a) Subject to Section 7.1, the Trustee may conclusively
rely upon any document believed by it to be genuine and to have been signed or
presented by the proper Person. The Trustee need not investigate any fact or
matter stated in the document.
(b) Before the Trustee acts or refrains from acting, it
may consult with counsel and require an Officers' Certificate or an Opinion of
Counsel or both. The Trustee shall not be liable for any action it takes or
omits to take in good faith in reliance on such Officers' Certificate or
Opinion of Counsel.
(c) The Trustee may act through its attorneys and agents
and shall not be responsible for the misconduct or negligence of any agent
appointed with due care.
(d) The Trustee shall not be liable for any action it
takes or omits to take in good faith that it believes in its sole subjective
discretion (which discretion shall be exercised in good faith) to be authorized
or within the rights or powers conferred upon it by this Indenture.
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(e) The permissive right of the Trustee to act hereunder
shall not be construed as a duty.
(f) Unless otherwise specifically provided in this
Indenture, any demand, request, direction or notice from the Company shall be
sufficient if signed by an Officer of the Company.
(g) The Trustee shall be under no obligation to exercise
any of the rights or powers vested in it by this Indenture at the request or
direction of any of the Holders unless such Holders shall have offered to the
Trustee security or indemnity satisfactory to the Trustee in its sole
subjective discretion (which discretion shall be exercised in good faith)
against the costs, expenses and liabilities that might be incurred by it in
compliance with such request or direction.
(h) The Trustee shall not be required to take notice or
deemed to have notice of any Event of Default hereunder, except failure by the
Company to make any of the payments to the Trustee pursuant to Section 6.1(a)
or Section 6.1(b) hereof, unless the Trustee shall be specifically notified in
writing of such Event of Default by the Company or by one or more of the
Holders.
SECTION 7.3. INDIVIDUAL RIGHTS OF TRUSTEE.
The Trustee in its individual or any other capacity may become
the owner or pledgee of Notes and may otherwise deal with the Company or any
Affiliate of the Company with the same rights it would have if it were not
Trustee. However, in the event that the Trustee acquires any conflicting
interest (as such term is defined in TIA Section 310(b)), it must eliminate
such conflict within 90 days, apply to the SEC for permission to continue as
trustee (to the extent permitted under TIA Section 310(b)) or resign. Any
Agent may do the same with like rights and duties. The Trustee is also subject
to Sections 7.10 and 7.11 hereof.
SECTION 7.4. TRUSTEE'S DISCLAIMER.
The Trustee shall not be responsible for and makes no
representation as to the validity or adequacy of this Indenture or the Notes,
it shall not be accountable for the Company's use of the proceeds from the
Notes or any money paid to the Company or upon the Company's direction under
any provision of this Indenture, it shall not be responsible for the use or
application of any money received by any Paying Agent other than the Trustee,
and it shall not be responsible for any statement or recital herein or any
statement in the Notes or any other document in connection with the sale of the
Notes or pursuant to this Indenture other than its certificate of
authentication.
SECTION 7.5. NOTICE OF DEFAULTS.
If a Default or Event of Default occurs and is continuing and
if it is actually known to the Trustee, the Trustee shall mail to Holders of
Notes a notice of the Default or Event of Default within 90 days after such
event occurs. Except in the case of a Default or Event of Default under
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Section 6.1(a) or (b), the Trustee may withhold such notice if it determines
that withholding the notice is in the interests of the Holders of the Notes.
SECTION 7.6. REPORTS BY TRUSTEE TO HOLDERS OF THE NOTES.
Within 60 days after each May 15 beginning with the May 15
following the date of this Indenture, and for so long as Notes remain
outstanding, the Trustee shall mail to the Holders of the Notes a brief report
dated as of such reporting date that complies with TIA Section 313(a) (but if
no event described in TIA Section 313(a) has occurred within the twelve months
preceding the reporting date, no report need be transmitted). The Trustee also
shall comply with TIA Section 313(b)(2). The Trustee shall also transmit by
mail all reports as required by TIA Section
313(c).
A copy of each report at the time of its mailing to the
Holders of Notes shall be mailed to the Company and filed with the SEC and each
stock exchange, if any, on which the Notes are listed in accordance with and to
the extent required by TIA Section 313(d). The Company shall promptly notify
the Trustee if the Notes become listed on any stock exchange or automatic
quotation system.
SECTION 7.7. COMPENSATION AND INDEMNITY.
The Company shall pay to the Trustee from time to time
reasonable compensation as shall be agreed upon between the Company and the
Trustee for its acceptance of this Indenture and services hereunder, including
extraordinary services such as default administration. The Trustee's
compensation shall not be limited by any law on compensation of a trustee of an
express trust. The Company shall reimburse the Trustee promptly upon request
for all reasonable disbursements, advances and expenses incurred or made by it
in addition to the compensation for its services. Such expenses shall include
the reasonable compensation, disbursements and expenses of the Trustee's agents
and counsel.
The Company shall indemnify the Trustee against any and all
losses, liabilities or expenses incurred by it arising out of or in connection
with the acceptance or administration of its duties under this Indenture,
including the costs and expenses of enforcing this Indenture against the
Company (including this Section 7.7) and defending itself against any claim
(whether asserted by the Company or any Holder or any other Person) or
liability in connection with the exercise or performance of any of its powers
or duties hereunder, except to the extent any such loss, liability or expense
may be attributable to its negligence or bad faith. The Trustee shall promptly
notify the Company of any claim for which it may seek indemnity. The Company
shall defend the claim and the Trustee shall cooperate in the defense. The
Trustee may have separate counsel and the Company shall pay the reasonable fees
and expenses of such counsel; provided that the Company will not be required to
pay such fees and expenses if it assumes the Trustee's defense with counsel
acceptable to and approved by the Trustee (such approval not to be unreasonably
withheld) and there is no conflict of interest between the Company and the
Trustee in connection with such defense. The Company need not pay for any
settlement made without its written consent, which consent shall not
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be unreasonably withheld. The Company need not reimburse the Trustee for any
expense or indemnity against any liability or loss of the Trustee to the extent
such expense, liability or loss is attributable to the negligence, bad faith or
willful misconduct of the Trustee.
The obligations of the Company under this Section 7.7 shall
survive the satisfaction and discharge of this Indenture.
To secure the Company's payment obligations in this Section,
the Trustee shall have a Lien prior to the Notes on all money or property held
or collected by the Trustee, except that held in trust to pay principal and
interest on particular Notes. Such Lien shall survive the satisfaction and
discharge of this Indenture.
When the Trustee incurs expenses or renders services after an
Event of Default specified in Section 6.1(g) or (h) hereof occurs, the expenses
and the compensation for the services (including the fees and expenses of its
agents and counsel) are intended to constitute expenses of administration under
any Bankruptcy Law.
The Trustee shall comply with the provisions of TIA Section
313(b)(2).
SECTION 7.8. REPLACEMENT OF TRUSTEE.
A resignation or removal of the Trustee and appointment of a
successor Trustee shall become effective only upon the successor Trustee's
acceptance of appointment as provided in this Section.
The Trustee may resign in writing upon 60 days notice and be
discharged from the trust hereby created by so notifying the Company in
writing. The Holders of Notes of a majority in principal amount of the then
outstanding Notes may remove the Trustee by so notifying the Trustee and the
Company in writing and may appoint a successor trustee with the consent of the
Company. The Company may remove the Trustee if:
(a) the Trustee fails to comply with Section 7.10 hereof;
(b) the Trustee is adjudged a bankrupt or an insolvent or
an order for relief is entered with respect to the Trustee under any
Bankruptcy Law;
(c) a receiver, Custodian or public officer takes charge
of the Trustee or its property; or
(d) the Trustee becomes incapable of acting.
If the Trustee resigns or is removed or if a vacancy exists in
the office of Trustee for any reason, the Company shall promptly appoint or
request the Trustee to appoint a successor
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Trustee. Within one year after the successor Trustee takes office, the Holders
of a majority in principal amount of the then outstanding Notes may appoint a
successor Trustee to replace the successor Trustee appointed by the Company.
If a successor Trustee does not take office within 60 days
after the retiring Trustee resigns or is removed, the retiring Trustee, the
Company, or the Holders of Notes of at least 10% in principal amount of the
then outstanding Notes may petition any court of competent jurisdiction for the
appointment of a successor Trustee.
If the Trustee, after written request by any Holder of a Note
who has been a Holder of a Note for at least six months, fails to comply with
Section 7.10, such Holder of a Note may petition any court of competent
jurisdiction for the removal of the Trustee and the appointment of a successor
Trustee.
A successor Trustee shall deliver a written acceptance of its
appointment to the retiring Trustee and to the Company. Thereupon, the
resignation or removal of the retiring Trustee shall become effective, and the
successor Trustee shall have all the rights, powers and duties of the Trustee
under this Indenture. The successor Trustee shall mail a notice of its
succession to Holders of the Notes. The retiring Trustee shall promptly
transfer all property held by it as Trustee to the successor Trustee, provided
all sums owing to the Trustee hereunder have been paid and subject to the Lien
provided for in Section 7.7 hereof. Notwithstanding replacement of the Trustee
pursuant to this Section 7.8, the Company's obligations under Section 7.7
hereof shall continue for the benefit of the retiring Trustee.
SECTION 7.9. SUCCESSOR TRUSTEE BY MERGER, ETC.
If the Trustee consolidates, merges or converts into, or
transfers all or substantially all of its corporate trust business to, another
corporation, the successor corporation without any further act shall be the
successor Trustee.
SECTION 7.10. ELIGIBILITY; DISQUALIFICATION.
There shall at all times be a Trustee hereunder that is a
corporation organized and doing business under the laws of the United States of
America or of any state thereof that is authorized under such laws to exercise
corporate trustee power, that is subject to supervision or examination by
federal or state authorities and that has a combined capital and surplus of at
least $100 million as set forth in its most recent published annual report of
condition.
This Indenture shall always have a Trustee who satisfies the
requirements of TIA Section 310(a)(1), (2) and (5). The Trustee is subject to
TIA Section 310(b).
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SECTION 7.11. PREFERENTIAL COLLECTION OF CLAIMS AGAINST COMPANY.
The Trustee is subject to TIA Section 311(a), excluding any
creditor relationship listed in TIA Section 311(b). A Trustee who has
resigned or been removed shall be subject to TIA Section 311(a) to the extent
indicated therein.
ARTICLE 8
DEFEASANCE AND DISCHARGE
SECTION 8.1. OPTION TO EFFECT LEGAL DEFEASANCE OR COVENANT DEFEASANCE.
The Company may, at the option of its Board of Directors
evidenced by a resolution set forth in an Officers' Certificate, at any time,
elect to have either Section 8.2 or 8.3 hereof be applied to all outstanding
Notes upon compliance with the conditions set forth below in this Article 8.
SECTION 8.2. LEGAL DEFEASANCE.
Upon the Company's exercise under Section 8.1 hereof of the
option applicable to this Section 8.2, the Company shall, subject to the
satisfaction of the conditions set forth in Section 8.4 hereof, be deemed to
have been discharged from its obligations with respect to all outstanding Notes
and all obligations of the Restricted Subsidiaries under the Subsidiary
Guarantees on the date the conditions set forth below are satisfied
(hereinafter, "Legal Defeasance"). For this purpose, Legal Defeasance means
that the Company shall be deemed to have paid and discharged the entire
Indebtedness represented by the outstanding Notes, which shall thereafter be
deemed to be "outstanding" only for the purposes of Section 8.6 hereof and the
other Sections of this Indenture referred to in (a) and (b) below, and to have
satisfied all its other obligations under such Notes and this Indenture (and
the Trustee, on demand of and at the expense of the Company, shall execute
proper instruments acknowledging the same), except for the following provisions
which shall survive until otherwise terminated or discharged pursuant to this
Indenture: (a) the rights of Holders of outstanding Notes to receive solely
from the trust fund described in Section 8.4 hereof, and as more fully set
forth in such Section, payments in respect of the principal of and premium, if
any, and interest on such Notes when such payments are due, (b) the Company's
obligations with respect to such Notes under Sections 2.3, 2.4, 2.6, 2.7, 2.10
and 4.2 hereof, (c) the rights, powers, trusts, duties and immunities of the
Trustee hereunder and the Company's obligations in connection therewith and (d)
Sections 3.1 through 3.7 hereof and this Article 8. Subject to compliance with
this Article 8, the Company may exercise its option under this Section 8.2
notwithstanding the prior exercise of its option under Section 8.3 hereof.
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SECTION 8.3. COVENANT DEFEASANCE.
Upon the Company's exercise under Section 8.1 hereof of the
option applicable to this Section 8.3, and subject to the satisfaction of the
conditions set forth in Section 8.4 hereof, the Company and the Subsidiary
Guarantors shall be released from their obligations under the covenants
contained in Sections 4.3, 4.4, 4.5, 4.7, 4.8, 4.9, 4.10, 4.11, 4.12, 4.13,
4.14, 4.15, 4.16, 4.17, 4.18, 5.1 and 5.2 and Articles 10 and 11 with respect
to the outstanding Notes on and after the date the conditions set forth below
are satisfied (hereinafter, "Covenant Defeasance"), and the Notes shall
thereafter be deemed not "outstanding" for the purposes of any direction,
waiver, consent or declaration or act of Holders (and the consequences of any
thereof) in connection with such covenants, but shall continue to be deemed
"outstanding" for all other purposes hereunder (it being understood that such
Notes shall not be deemed outstanding for accounting purposes). For this
purpose, Covenant Defeasance means that, with respect to the outstanding Notes,
the Company may omit to comply with and shall have no liability in respect of
any term, condition or limitation set forth in any such covenant, whether
directly or indirectly, by reason of any reference elsewhere herein to any such
covenant or by reason of any reference in any such covenant to any other
provision herein or in any other document and such omission to comply shall not
constitute a Default or an Event of Default under Section 6.1 hereof, but,
except as specified above, the remainder of this Indenture and such Notes shall
be unaffected thereby. In addition, upon the Company's exercise under Section
8.1 hereof of the option applicable to this Section 8.3 hereof, subject to the
satisfaction of the conditions set forth in Section 8.4 hereof, Sections
6.1(e), 6.1(f), 6.1(i) and 6.1(j) hereof shall not constitute Events of
Default.
SECTION 8.4. CONDITIONS TO LEGAL OR COVENANT DEFEASANCE.
The following shall be the conditions to application of either
Section 8.2 or Section 8.3 to the outstanding Notes:
(a) The Company must irrevocably deposit, or caused to be
deposited, with the Trustee (or another trustee satisfying the requirements of
this Indenture), in trust for such purpose, specifically pledged as security
for the benefit of the Holders of the Notes, (1) cash in U.S. dollars in an
amount, (2) non-callable Government Securities which through the payment of
principal and interest in accordance with their terms will provide money in an
amount, or (3) a combination thereof, in such amounts, as will be sufficient,
without reinvestment (and without other assets, including without limitation,
the Pledged Securities and other assets held pursuant to the Pledge Agreement),
in the opinion of a nationally recognized firm of independent public
accountants expressed in a written certification thereof delivered to the
Trustee, to pay the principal of and premium, if any, and interest on the
outstanding Notes on the stated maturity or on the applicable redemption date,
as the case may be, together with all other amounts payable by the Company
under this Indenture.
(b) In the case of an election under Section 8.2, the
Company shall have delivered to the Trustee an Opinion of Counsel in the United
States reasonably acceptable to the Trustee
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confirming that (i) the Company has received from, or there has been published
by, the Internal Revenue Service a ruling or (ii) since the date hereof, there
has been a change in the applicable federal income tax law, in either case to
the effect that, and based thereon such Opinion of Counsel shall confirm that,
the Holders of the outstanding Notes will not recognize income, gain or loss
for federal income tax purposes as a result of such Legal Defeasance and will
be subject to federal income tax on the same amounts, in the same manner and at
the same times as would have been the case if such Legal Defeasance had not
occurred.
(c) In the case of an election under Section 8.3, the
Company shall have delivered to the Trustee an Opinion of Counsel in the United
States reasonably acceptable to the Trustee confirming that the Holders of the
outstanding Notes will not recognize income, gain or loss for federal income
tax purposes as a result of such Covenant Defeasance and will be subject to
federal income tax on the same amounts, in the same manner and at the same
times as would have been the case if such Covenant Defeasance had not occurred.
(d) No Default or Event of Default shall have occurred
and be continuing on the date of such deposit or insofar as Sections 6.1(g) and
(h) are concerned, at any time in the period ending on the 91st day after the
date of deposit (it being understood that this condition shall not be deemed
satisfied until the expiration of such period).
(e) Such Legal Defeasance or Covenant Defeasance will not
result in a breach or violation of, or constitute a default under any material
agreement or instrument to which the Company or any of its Subsidiaries is a
party or by which the Company or any of its Subsidiaries is bound.
(f) The Company shall have delivered to the Trustee an
Officers' Certificate stating that the deposit was not made by the Company with
the intent of preferring the Holders of Notes over the other creditors of the
Company with the intent of defeating, hindering, delaying or defrauding
creditors of the Company or others.
(g) The Company shall have delivered to the Trustee an
Officers' Certificate and an Opinion of Counsel, each stating that all
conditions precedent provided for relating to either the Legal Defeasance under
Section 8.2 or the Covenant Defeasance under Section 8.3, as the case may be,
have been complied with as contemplated by this Section 8.4.
SECTION 8.5. DISCHARGE.
This Indenture will be discharged and will cease to be of
further effect (except as to surviving rights of registration of transfer or
exchange of Notes) as to all outstanding Notes ("Discharge") when (i) either
(a) all such Notes theretofore authenticated and delivered (except lost, stolen
or destroyed Notes that have been replaced or paid and Notes for whose payment
money has theretofore been deposited in trust with the Trustee and thereafter
repaid to the Company or discharged from such trust) have been delivered to the
Trustee for cancellation; or (b) all such Notes
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not theretofore delivered to the Trustee for cancellation have become due and
payable, will become due and payable by their terms within one year, or are to
be called for redemption within one year under arrangements satisfactory to the
Trustee for the giving of notice of redemption, and in each case the Company
has irrevocably deposited or caused to be deposited with the Trustee, as trust
funds solely for the benefit of the Holders for that purpose, funds in an
amount of money in U.S. dollars sufficient to pay and discharge the entire
indebtedness on the Notes not theretofore delivered to the Trustee for
cancellation, for the principal amount, premium, if any, and accrued and unpaid
interest to the date of such deposit together with irrevocable instructions
from the Company directing the Trustee to apply such funds to the payment
thereof; (ii) the Company has paid all other sums payable by it under this
Indenture; and (iii) the Company has delivered irrevocable instructions to the
Trustee to apply the deposited money toward the payment of the Notes at
maturity, as the case may be. In addition, the Company must deliver an
Officers' Certificate and an Opinion of Counsel stating that all conditions
precedent under this Indenture to satisfaction and discharge have been complied
with.
SECTION 8.6. DEPOSITED MONEY AND GOVERNMENT SECURITIES TO BE HELD IN TRUST;
OTHER MISCELLANEOUS PROVISIONS.
Subject to Section 8.7 hereof, all money and Government
Securities (including the proceeds thereof) deposited with the Trustee (or
other qualifying trustee, collectively for purposes of this Section 8.6, the
"Trustee") pursuant to Section 8.4 or 8.5 hereof in respect of the outstanding
Notes shall be held in trust and applied by the Trustee, in accordance with the
provisions of such Notes and this Indenture, to the payment, either directly or
through any Paying Agent (including the Company or any of its Subsidiaries or
Affiliates acting as Paying Agent) as the Trustee may determine, to the Holders
of such Notes of all sums due and to become due thereon in respect of
principal, premium, if any, and interest, but such money need not be segregated
from other funds except to the extent required by law.
The Company shall pay and indemnify the Trustee against any
tax, fee or other charge imposed on or assessed against the cash or Government
Securities deposited pursuant to this Section 8.6 or the principal and interest
received in respect thereof other than any such tax, fee or other charge which
by law is for the account of the Holders of the outstanding Notes.
Anything in this Article 8 to the contrary notwithstanding,
the Trustee shall deliver or pay to the Company from time to time upon the
request of the Company any money or Government Securities held by it as
provided in this Section 8.6 which, in the opinion of a nationally recognized
firm of independent public accountants expressed in a written certification
thereof delivered to the Trustee (which may be the opinion delivered under
Section 8.4 hereof), are in excess of the amount thereof that would then be
required to be deposited to effect an equivalent Legal Defeasance, Covenant
Defeasance or Discharge.
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SECTION 8.7. REPAYMENT TO COMPANY.
Any money deposited with the Trustee or any Paying Agent, or
then held by the Company or any of its Subsidiaries or Affiliates, in trust for
the payment of the principal of, premium, if any, or interest on any Note and
remaining unclaimed for one year after such principal, premium, if any, or
interest has become due and payable shall be paid to the Company on its request
or (if then held by the Company or any of its Subsidiaries or Affiliates) shall
be discharged from such trust; and the Holder of such Note shall thereafter, as
an unsecured general creditor, look only to the Company for payment thereof,
and all liability of the Trustee or such Paying Agent with respect to such
trust money, and all liability of the Company or any of its Subsidiaries or
Affiliates as trustee thereof, shall thereupon cease.
SECTION 8.8. REINSTATEMENT.
If the Trustee or Paying Agent is unable to apply any U.S.
dollars or Government Securities in accordance with Section 8.2, 8.3 or 8.5
hereof, as the case may be, by reason of any order or judgment of any court or
governmental authority enjoining, restraining or otherwise prohibiting such
application, then the Company's obligations under this Indenture and the Notes
shall be revived and reinstated as though no deposit had occurred pursuant to
Section 8.2, 8.3 or 8.5 hereof until such time as the Trustee or Paying Agent
is permitted to apply all such assets in accordance with Section 8.2, 8.3 or
8.5 hereof, as the case may be; provided, however, that, if the Company makes
any payment of principal of, premium, if any, or interest on any Note following
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 held
by the Trustee or Paying Agent.
ARTICLE 9
AMENDMENT, SUPPLEMENT AND WAIVER
SECTION 9.1. WITHOUT CONSENT OF HOLDERS OF NOTES.
Notwithstanding Section 9.2 of this Indenture, the Company,
the Subsidiary Guarantors and the Trustee may amend or supplement this
Indenture, the Notes or the Pledge Agreement without the consent of any Holder:
(a) to cure any ambiguity, defect or inconsistency;
(b) to provide for uncertificated Notes in addition to or
in place of certificated Notes;
(c) to provide for the assumption of the Company's
obligations to the Holders of Notes in the case of a merger or
consolidation pursuant to Article 5 hereof;
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(d) to make any change that would provide any additional
rights or benefits to the Holders of the Notes or that does not
adversely affect the legal rights hereunder of any such Holder;
(e) to add a Subsidiary Guarantor pursuant to the
provisions set forth in this Indenture; or
(f) to comply with requirements of the SEC in order to
effect or maintain the qualification of this Indenture under the TIA
as then in effect.
Upon the request of the Company and the Subsidiary Guarantors,
accompanied by a Board Resolution of the Company and each Subsidiary Guarantor
authorizing the execution of any such amended or supplemental Indenture, and
upon receipt by the Trustee of the documents described in Section 7.2 hereof,
the Trustee shall join with the Company and the Subsidiary Guarantors in the
execution of any amended or supplemental Indenture authorized or permitted by
the terms of this Indenture and to make any further appropriate agreements and
stipulations that may be therein contained. After an amendment or supplement
under this Section 9.1 becomes effective, the Company shall mail to the Holders
of Notes a notice briefly describing the amendment or supplement. Any failure
of the Company to mail such notice, or any defect therein, shall not, however,
in any way impair or affect the validity of any such amended or supplemental
Indenture.
SECTION 9.2. WITH CONSENT OF HOLDERS OF NOTES.
Except as provided below in this Section 9.2, this Indenture,
the Notes or the Pledge Agreement may be amended or supplemented with the
consent of the Holders of at least a majority in principal amount of the Notes
then outstanding (including, without limitation, consents obtained in
connection with a purchase of, or tender offer or exchange offer for, Notes),
and, subject to Sections 6.4 and 6.7, any existing Default or Event of Default
(other than a Default or Event of Default in the payment of principal of,
premium, if any, or interest on, the Notes, except a payment default resulting
from an acceleration that has been rescinded) or compliance with any provision
of this Indenture or the Notes may be waived with the consent of the Holders of
a majority in principal amount of the then outstanding Notes (including
consents obtained in connection with a purchase of, or tender offer or exchange
offer for, Notes).
Upon the request of the Company and the Subsidiary Guarantors,
accompanied by a Board Resolution of the Company and each Subsidiary Guarantor
authorizing the execution of any such amended or supplemental Indenture, and
upon the filing with the Trustee of evidence satisfactory to the Trustee of the
consent of the Holders of Notes as aforesaid, and upon receipt by the Trustee
of the documents described in Section 7.2 hereof, the Trustee shall join with
the Company and the Subsidiary Guarantors in the execution of such amended or
supplemental Indenture and to make any further appropriate agreements and
stipulations that may be therein contained, but the Trustee shall not be
obligated to enter into such amended or supplemental
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Indenture that adversely affects its own rights, duties, liabilities or
immunities under this Indenture or otherwise.
It shall not be necessary for the consent of the Holders of
Notes under this Section 9.2 to approve the particular form of any proposed
amendment or waiver, but it shall be sufficient if such consent approves the
substance thereof.
After an amendment, supplement or waiver under this Section
9.2 becomes effective, the Company shall mail to the Holders of Notes a notice
briefly describing the amendment, supplement or waiver. Any failure of the
Company to mail such notice, or any defect therein, shall not, however, in any
way impair or affect the validity of any such amended or supplemental Indenture
or waiver. Subject to Sections 6.4 and 6.7 hereof, the Holders of a majority
in principal amount of the Notes then outstanding may waive compliance in a
particular instance by the Company with any provision of this Indenture, the
Notes or the Pledge Agreement. However, without the consent of each Holder
affected, an amendment or waiver may not (with respect to any Notes held by a
non-consenting Holder):
(a) reduce the principal amount of Notes whose Holders
must consent to an amendment, supplement or waiver;
(b) reduce the principal of or change the fixed maturity
of any Note or alter the provisions with respect to the redemption of the Notes
(other than the provisions relating to Section 4.14);
(c) reduce the rate of or change the time for payment of
interest on any Note;
(d) waive a Default or Event of Default in the payment of
principal of, premium, if any, or interest on the Notes (except a rescission
of acceleration of the Notes by the Holders of at least a majority in aggregate
principal amount of the Notes and a waiver of the payment default that resulted
from such acceleration);
(e) make any Note payable in money other than that stated
in the Notes;
(f) make any change in the provisions of this Indenture
relating to waivers of past Defaults or the rights of Holders of Notes to
receive payments of principal of, premium, if any, or interest on the Notes;
(g) waive a redemption payment with respect to any Note
(other than a payment required by Section 4.14);
(h) release any Collateral from the Lien created by the
Pledge Agreement, except in accordance with the terms thereof, or amend the
terms thereof relating to the release of Collateral;
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(i) release any Subsidiary Guarantor from its Subsidiary
Guarantee except as permitted hereunder;
(j) make any change in the provisions of this Indenture
requiring any Guarantee hereof or in the provisions of any such Guarantees; or
(k) make any change in the foregoing amendment and waiver
provisions.
SECTION 9.3. COMPLIANCE WITH TRUST INDENTURE ACT.
Every amendment or supplement to this Indenture or the Notes
shall be set forth in an amended or supplemental Indenture that complies with
the TIA as then in effect.
SECTION 9.4. REVOCATION AND EFFECT OF CONSENTS.
Until an amendment, supplement or waiver becomes effective, a
consent to it by a Holder of a Note is a continuing consent by the Holder of a
Note and every subsequent Holder of a Note or portion of a Note that evidences
the same debt as the consenting Holder's Note, even if notation of the consent
is not made on any Note. However, any such Holder of a Note or subsequent
Holder of a Note may revoke the consent as to its Note if the Trustee receives
written notice of revocation before the date the waiver, supplement or
amendment has been approved by the requisite Holders. An amendment, supplement
or waiver becomes effective when approved by the requisite Holders and executed
by the Trustee (or, if otherwise provided in such waiver, supplement or
amendment, in accordance with its terms) and thereafter binds every Holder.
The Company may, but shall not be obligated to, fix a record
date for the purpose of determining the Holders entitled to consent to any
amendment, supplement or waiver. If a record date is fixed, then
notwithstanding the last sentence of the immediately preceding paragraph, those
Persons who were Holders at such record date (or their duly designated
proxies), and only those Persons, shall be entitled to consent to such
amendment or waiver or revoke any consent previously given, whether or not such
Persons continue to be Holders after such record date. No consent shall be
valid or effective for more than 90 days after such record date except to the
extent that the requisite number of consents to the amendment, supplement or
waiver have been obtained within such 90-day period or as set forth in the next
paragraph of this Section 9.4.
After an amendment, supplement or waiver becomes effective, it
shall bind every Holder, unless it makes a change described in any of clauses
(a) through (k) of Section 9.2, in which case, the amendment, supplement or
waiver shall bind only each Holder of a Note who has consented to it and every
subsequent Holder of a Note or portion of a Note that evidences the same
indebtedness as the consenting Holder's Note.
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SECTION 9.5. NOTATION ON OR EXCHANGE OF NOTES.
The Trustee may place an appropriate notation about an
amendment, supplement or waiver on any Note thereafter authenticated. The
Company in exchange for all Notes may issue, and the Trustee shall
authenticate, new Notes that reflect the amendment, supplement or waiver.
Failure to make the appropriate notation or issue a new Note
shall not affect the validity and effect of such amendment, supplement or
waiver.
SECTION 9.6. TRUSTEE TO SIGN AMENDMENTS, ETC.
The Trustee shall sign any amended or supplemental Indenture
authorized pursuant to this Article 9 if the amendment or supplement does not
adversely affect the rights, duties, liabilities or immunities of the Trustee.
In executing any amended or supplemental indenture, the Trustee shall be
entitled to receive and (subject to Section 7.1) shall be fully protected in
relying upon, an Officers' Certificate and an Opinion of Counsel stating that
the execution of such amended or supplemental indenture is authorized or
permitted by this Indenture.
SECTION 9.7. PAYMENTS FOR CONSENT.
The Company will not, and will not permit any of its
Restricted Subsidiaries to, directly or indirectly, pay or cause to be paid any
consideration, whether by way of interest, fee or otherwise, to any Holder of
any Notes for or as an inducement to any consent, waiver or amendment of any
terms or provisions of this Indenture, the Notes, the Pledge Agreement or the
Subsidiary Guarantees unless such consideration is offered to be paid or is
paid to all Holders of the Notes 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 10
SUBSIDIARY GUARANTEES
SECTION 10.1. GUARANTEES.
Each Subsidiary Guarantor hereby, jointly and severally,
unconditionally and irrevocably guarantees, to each Holder and to the Trustee
and its successors and assigns the due and punctual payment of principal of,
premium, if any, and interest on the Notes and all other amounts due and
payable under this Indenture and the Notes by the Company whether at maturity,
by acceleration, redemption, repurchase or otherwise, including, without
limitation, interest on the overdue principal of, premium, if any, and interest
on the Notes, to the extent lawful, all in accordance with the terms hereof and
thereof.
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Each Subsidiary Guarantor waives presentation to, demand of,
payment from and protest to the Company of any of the obligations contained in
the Notes and this Indenture and also waives notice of protest for nonpayment,
notice of intent to accelerate and notice of acceleration. Each Subsidiary
Guarantor waives notice of any default under the Notes or the obligations
guaranteed hereby. The obligations of each Subsidiary Guarantor hereunder
shall not be affected by (a) the failure of any Holder or the Trustee to assert
any claim or demand or to enforce any right or remedy against the Company or
any other Person under this Indenture, the Notes or any other agreement or
otherwise; (b) any extension or renewal of any thereof; (c) any rescission,
waiver, amendment or modification of any of the terms or provisions of this
Indenture, the Notes or any other agreement; (d) the release of any security
held by any Holder or the Trustee for the obligations guaranteed hereby or any
of them; (e) the failure of any Holder or the Trustee to exercise any right or
remedy against any other guarantor of the obligations guaranteed hereby; or (f)
any change in the ownership of such Subsidiary Guarantor.
Each Subsidiary Guarantor further agrees that its Subsidiary
Guarantee herein constitutes a guarantee of payment, performance and compliance
when due (and not a guarantee of collection) and waives any right to require
that any resort be had by any Holder or the Trustee to any security held for
payment of the obligations guaranteed hereby.
Except as expressly set forth in Sections 8.2, 8.3, 10.3 and
10.7, the obligations of each Subsidiary Guarantor hereunder shall not be
subject to any reduction, limitation, impairment or termination for any reason,
including any claim of waiver, release, surrender, alteration or compromise,
and shall not be subject to any defense of setoff, counterclaim, recoupment or
termination whatsoever or by reason of the invalidity, illegality or
unenforceability of the obligations guaranteed hereby or otherwise. Without
limiting the generality of the foregoing, the obligations of each Subsidiary
Guarantor herein shall not be discharged or impaired or otherwise affected by
the failure of any Holder or the Trustee to assert any claim or demand or to
enforce any remedy under this Indenture, the Notes or any other agreement, by
any waiver or modification of any thereof, by any default, failure or delay,
willful or otherwise, in the performance of the obligations guaranteed hereby,
or by any other act or thing or omission or delay to do any other act or thing
which may or might in any manner or to any extent vary the risk of such
Subsidiary Guarantor or would otherwise operate as a discharge of such
Subsidiary Guarantor as a matter of law or equity.
Each Subsidiary Guarantor further agrees that its Subsidiary
Guarantee herein shall continue to be effective or be reinstated, as the case
may be, if at any time payment, or any part thereof, of principal of, premium,
if any, or interest on any obligation guaranteed hereby is rescinded or must
otherwise be restored by any Holder or the Trustee upon the bankruptcy or
reorganization of the Company or otherwise.
In furtherance of the foregoing and not in limitation of any
other right which any Holder or the Trustee has at law or in equity against any
Subsidiary Guarantor by virtue hereof, upon the failure of the Company to pay
the principal of, premium, if any, or interest on any obligation guaranteed
hereby when and as the same shall become due, whether at maturity, by
acceleration, by
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redemption or otherwise, or to perform or comply with any other obligation
guaranteed hereby, each Subsidiary Guarantor hereby promises to and will, upon
receipt of written demand by the Trustee, forthwith pay, or cause to be paid,
in cash, to the Holders or the Trustee an amount equal to the sum of (i) the
unpaid amount of such obligations, (ii) accrued and unpaid interest on such
obligations (but only to the extent not prohibited by law) and (iii) all other
monetary obligations of the Company to the Holders and the Trustee.
Each Subsidiary Guarantor agrees that it shall not be entitled
to any right of subrogation in respect of any obligations guaranteed hereby
until payment in full of all such obligations. Each Subsidiary Guarantor
further agrees that, as between it, on the one hand, and the Holders and the
Trustee, on the other hand, (x) the maturity of the obligations guaranteed
hereby may be accelerated as provided in Article 6 for the purposes of such
Subsidiary Guarantor's Subsidiary Guarantee herein, notwithstanding any stay,
injunction or other prohibition preventing such acceleration in respect of the
obligations guaranteed hereby, and (y) in the event of any declaration of
acceleration of such obligations as provided in Article 6, such obligations
(whether or not due and payable) shall forthwith become due and payable by such
Subsidiary Guarantor for the purposes of this Section.
Each Subsidiary Guarantor also agrees to pay any and all costs
and expenses (including reasonable attorneys' fees) incurred by the Trustee or
any Holder in enforcing any rights under this Section.
SECTION 10.2. SUBSIDIARY GUARANTORS MAY CONSOLIDATE, ETC., ON CERTAIN TERMS.
(a) Subject to paragraph (b) of this Section 10.2, no
Restricted Subsidiary may consolidate or merge with or into (whether or not
such Restricted Subsidiary is the surviving Person), or sell, assign, transfer,
lease, convey or otherwise dispose of all or substantially all of its
properties or assets in one or more related transactions, to another Person
unless (i) the Person formed by or surviving any such consolidation or merger
(if other than such Restricted Subsidiary) or the Person to which such sale,
assignment, transfer, lease, conveyance or other disposition shall have been
made assumes all the obligations of such Restricted Subsidiary under the
Subsidiary Guarantee, pursuant to a supplemental indenture in form satisfactory
to the Trustee; (ii) immediately after such transaction, no Default or Event of
Default exists; (iii) the Company and its Restricted Subsidiaries would, at the
time of such transaction and after giving pro forma effect thereto as if such
transaction had occurred at the beginning of the applicable fiscal quarter, be
permitted to Incur at least $1.00 of additional Indebtedness pursuant to the
Consolidated Interest Coverage Ratio test set forth in Section 4.9(a); (iv) the
Company shall have delivered to the Trustee an Officers' Certificate and an
Opinion of Counsel, each stating that such consolidation, merger or transfer
complies with the provisions of this Indenture; and (v) such Restricted
Subsidiary (if such Restricted Subsidiary is the surviving Person) shall have
delivered a written instrument in form satisfactory to the Trustee confirming
its Subsidiary Guarantee after giving effect to such consolidation, merger or
transfer. Notwithstanding the foregoing, any Restricted Subsidiary may merge
into, consolidate with or transfer all or part of its properties or assets to
the Company or one or more Restricted Subsidiaries.
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(b) In the event of a sale, assignment, transfer, lease,
conveyance or other disposition of all of the Equity Interests in, or all or
substantially all of the assets of, a Restricted Subsidiary to any Person that
is not the Company or any of its Restricted Subsidiaries, whether by way of
merger, consolidation or otherwise, if (i) the Net Proceeds of such sale or
other disposition are applied in accordance with the provisions of Section
4.10, (ii) no Default or Event of Default exists or would exist under this
Indenture after giving effect to such transaction, (iii) all obligations of
such Restricted Subsidiary under any other Indebtedness of the Company or any
of its Restricted Subsidiaries shall have been terminated (including, without
limitation, all Guarantees of any such Indebtedness), (iv) all Liens on assets
of such Restricted Subsidiary that secure any other Indebtedness of the Company
or any of its Restricted Subsidiaries shall have been terminated, and (v) all
obligations of the Company and its Restricted Subsidiaries under other
Indebtedness of such Restricted Subsidiary shall have been terminated
(including, without limitation, all Guarantees of such Indebtedness), then (A)
in the case of such a sale or other disposition, whether by way of merger,
consolidation or otherwise, of all of the Equity Interests in such former
Restricted Subsidiary, such former Restricted Subsidiary will be released and
relieved of any obligations under its Subsidiary Guarantee, or (B) in the case
of a sale or other disposition of all or substantially all of the assets of
such Restricted Subsidiary, the Person acquiring such assets will not be
required to assume the obligations of such Restricted Subsidiary under its
Subsidiary Guarantee.
SECTION 10.3. LIMITATION ON LIABILITY.
Any term or provision of this Indenture to the contrary
notwithstanding, the maximum aggregate amount of the obligations guaranteed
hereunder by any Subsidiary Guarantor shall not exceed the maximum amount that
can be hereby guaranteed without rendering this Indenture, as it relates to
such Subsidiary Guarantor, voidable under applicable law relating to fraudulent
conveyance or fraudulent transfer or similar laws affecting the rights of
creditors generally. To effectuate the foregoing intention, the obligations of
each Subsidiary Guarantor shall be limited to the maximum amount as will, after
giving effect to all other contingent and fixed liabilities of such Subsidiary
Guarantor and after giving effect to any collections from, rights to receive
contributions from, or payments made by or on behalf of any other Subsidiary
Guarantor in respect of the obligations of such other Subsidiary Guarantor
under its Subsidiary Guarantee or pursuant to its contribution obligations
hereunder, result in the obligations of such Subsidiary Guarantor under its
Subsidiary Guarantee not constituting a fraudulent conveyance or fraudulent
transfer under any Applicable Law. Each Subsidiary Guarantor that makes a
payment or distribution under a Subsidiary Guarantee shall be entitled to a
contribution from each other Subsidiary Guarantor so long as the exercise of
such right does not impair the rights of the Holders under the Subsidiary
Guarantees.
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SECTION 10.4. SUCCESSORS AND ASSIGNS.
This Article 10 shall be binding upon each Subsidiary
Guarantor and its successors and assigns and shall inure to the benefit of the
successors and assigns of the Trustee and the Holders and, in the event of any
transfer or assignment of rights by any Holder or the Trustee, the rights and
privileges conferred upon that party in this Indenture and in the Notes shall
automatically extend to and be vested in such transferee or assignee, all
subject to the terms and conditions of this Indenture.
SECTION 10.5. NO WAIVER.
Neither a failure nor a delay on the part of either the
Trustee or the Holders in exercising any right, power or privilege under this
Article 10 shall operate as a waiver thereof, nor shall a single or partial
exercise thereof preclude any other or further exercise of any right, power or
privilege. The rights, remedies and benefits of the Trustee and the Holders
herein expressly specified are cumulative and not exclusive of any other
rights, remedies or benefits which either may have under this Article 10 at
law, in equity, by statute or otherwise.
SECTION 10.6. MODIFICATION.
No modification, amendment or waiver of any provision of this
Article 10, nor the consent to any departure by any Subsidiary Guarantor
therefrom, shall in any event be effective unless the same shall be in writing
and signed by the Trustee, and then such waiver or consent shall be effective
only in the specific instance and for the purpose for which given. No notice
to or demand on any Subsidiary Guarantor in any case shall entitle such
Subsidiary Guarantor to any other or further notice or demand in the same,
similar or other circumstances.
SECTION 10.7. RELEASE OF SUBSIDIARY GUARANTOR.
Upon the sale or disposition of a Subsidiary Guarantor (or
substantially all of its assets) or the designation of a Subsidiary Guarantor
as an Unrestricted Subsidiary pursuant to and in compliance with the terms of
this Indenture, including, but not limited to the provisions of Section 10.2,
such Subsidiary shall be released from and relieved of its obligations under
its Subsidiary Guarantee upon execution and delivery of a supplemental
indenture satisfactory to the Trustee. Such supplemental indenture shall be
accompanied by an Officers' Certificate and an Opinion of Counsel, each stating
that such supplemental indenture and release of the Subsidiary Guarantee
complies with the provisions of this Indenture and that all conditions
precedent to such supplemental indenture and release of the Subsidiary
Guarantee have been complied with.
SECTION 10.8. EXECUTION OF SUPPLEMENTAL INDENTURE BY FUTURE RESTRICTED
SUBSIDIARIES.
The Company shall cause any Person that becomes a Restricted
Subsidiary after the Closing Date (including any Subsidiary that was previously
an Unrestricted Subsidiary and which becomes a Restricted Subsidiary) to
promptly execute and deliver to the Trustee a supplemental
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indenture pursuant to which such Restricted Subsidiary shall become a
Subsidiary Guarantor under this Article 10 and shall guarantee the Notes
pursuant to the terms hereof. Concurrently with the execution and delivery of
such supplemental indenture, the Company shall deliver to the Trustee an
Opinion of Counsel to the effect that such supplemental indenture has been duly
authorized, executed and delivered by such Restricted Subsidiary and that,
subject to the application of bankruptcy, insolvency, moratorium, fraudulent
conveyance or transfer and other similar laws relating to creditors' rights
generally and to the principles of equity, whether considered in a proceeding
at law or in equity, the Subsidiary Guarantee of such Subsidiary Guarantor is a
legal, valid and binding obligation of such Subsidiary Guarantor, enforceable
against such Subsidiary Guarantor in accordance with its terms.
ARTICLE 11
COLLATERAL AND SECURITY
SECTION 11.1. PLEDGE AGREEMENT.
(a) The due and punctual payment of the principal of,
premium, and interest on the Notes when and as the same shall be due and
payable on each Interest Payment Date, at maturity or by acceleration, and
interest on the overdue principal of and interest (to the extent permitted by
law), if any, on the Notes and payment and performance of all other obligations
of the Company to the Holders of the Notes or the Trustee under this Indenture
and the Pledge Agreement with respect to the Notes, according to the terms
hereunder or thereunder, shall be secured as provided in the Pledge Agreement
which the Company and the Trustee have entered into simultaneously with the
execution of this Indenture. Upon the acceleration of the maturity of the
Notes prior to the termination of the Pledge Agreement, the Pledge Agreement
will provide for the foreclosure by the Trustee of the net proceeds of the
Pledge Account. Each Holder of the Notes, by its acceptance thereof, consents
and agrees to the terms of the Pledge Agreement (including, without limitation,
the provisions providing for foreclosure and disbursement of Collateral) as the
same may be in effect or may be amended from time to time in accordance with
its terms and authorizes and directs the Trustee to enter into the Pledge
Agreement and to perform its obligations and exercise its rights thereunder in
accordance therewith. The Company shall deliver to the Trustee copies of the
Pledge Agreement, and shall do or cause to be done all such acts and things as
may be necessary or proper, or as may be required by the provisions of the
Pledge Agreement, to assure and confirm to the Trustee the security interest in
the Collateral contemplated by the Pledge Agreement or any part thereof, as
from time to time constituted, so as to render the same available for the
security and benefit of this Indenture with respect to, and of, the Notes,
according to the intent and purposes expressed in the Pledge Agreement. Prior
to the termination of the Pledge Agreement pursuant to its terms, the Company
shall take any and all actions reasonably required to cause the Pledge
Agreement to create and maintain (to the extent possible under applicable law),
as security for the obligations of the Company hereunder, a valid and
enforceable perfected first priority Lien in and on all the Collateral, in
favor of the Trustee for the benefit of the Trustee and the Holders of the
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Notes, superior to and prior to the rights of all third Persons and subject to
no other Liens. The Trustee shall have no responsibility for perfecting or
maintaining the perfection of the Trustee's security interest in the Collateral
or for filing any instrument, document or notice in any public office at any
time or times.
(b) The Pledge Agreement shall further provide that in
the event a portion of the Notes has been retired by the Company, if no Default
or Event of Default is then continuing, depending upon the amount available in
the Pledge Account, funds representing the interest payments which have not
previously been made on such retired Notes shall, upon the written request of
the Company to the Trustee, be paid to the Company upon compliance with the
release of collateral provisions of the TIA and upon receipt of a notice
relating thereto from the Trustee.
SECTION 11.2. RECORDING AND OPINIONS.
(a) The Company shall furnish to the Trustee
simultaneously with the execution and delivery of this Indenture an Opinion of
Counsel either (i) stating that in the opinion of such counsel all action has
been taken with respect to the recording, registering and filing of this
Indenture, financing statements or other instruments necessary to make
effective the Lien intended to be created by the Pledge Agreement and reciting
with respect to the security interests in the Collateral the details of such
action, or (ii) stating that in the opinion of such counsel no such action is
necessary to make such Lien effective.
(b) The Company shall furnish to the Trustee on
_____________, 1998, and on each ________________ thereafter until the date
upon which the balance of Available Funds (as defined in the Pledge Agreement)
shall have been reduced to zero, an Opinion of Counsel, dated as of such date,
satisfying the requirements of TIA Section 314(b) and either (i) stating that
(A) in the opinion of such counsel, all action has been taken with respect to
the recording, registering, filing, re-recording, re-registering and refiling
of all supplemental indentures, financing statements, continuation statements,
and other instruments of further assurance as is necessary to maintain the Lien
of the Pledge Agreement and reciting with respect to the security interests in
the Collateral the details of such action or referring to prior Opinions of
Counsel in which such details are given and (B) based on relevant laws as in
effect on the date of such Opinion of Counsel, all financing statements and
continuation statements have been executed and filed that are necessary as of
such date and during the succeeding 12 months fully to preserve and protect, to
the extent such protection and preservation are possible by filing, the rights
of the Holders of Notes and the Trustee hereunder and under the Pledge
Agreement with respect to the security interests in the Collateral or (ii)
stating that, in the opinion of such counsel, no such action is necessary to
maintain such Lien.
SECTION 11.3. RELEASE OF COLLATERAL.
(a) Subject to subsections (b), (c) and (d) of this
Section 11.3, Collateral may be released from the Lien created by the Pledge
Agreement only in accordance with the provisions of the Pledge Agreement.
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(b) Except to the extent that any Lien on proceeds of
Collateral is automatically released by operation of Section 9-306 of the
Uniform Commercial Code or other similar law, no Collateral shall be released
from the Lien created by the Pledge Agreement pursuant to the provisions of the
Pledge Agreement, other than to the Holders pursuant to the terms thereof,
unless there shall have been delivered to the Trustee the certificates, if any,
required by Section 11.3(d) and Section 11.4.
(c) At any time when an Event of Default shall have
occurred and be continuing and the maturity of the Notes shall have been
accelerated (whether by declaration or otherwise), no Collateral shall be
released pursuant to the provisions of the Pledge Agreement, and no release of
Collateral in contravention of this Section 11.3(c) shall be effective as
against the Holders of the Notes, except for the disbursement of all Available
Funds (as defined in the Pledge Agreement) to the Trustee pursuant to Section
6(b)(iii) of the Pledge Agreement.
(d) On or before each of the first two Interest Payment
Dates, if the conditions set forth in Sections 3.2(a) and 3.2(c) of the Pledge
Agreement have been satisfied, then the Pledge Agent under the Pledge Agreement
may release Collateral from the Liens created by this Indenture and the Pledge
Agreement and apply such funds as required by Section 4.1 of this Indenture.
Any such release of Collateral shall not be deemed to impair the security under
this Indenture in contravention of the provisions hereof. To the extent
applicable, the Company shall cause TIA Section 314(d) relating to the release
of property or securities from the Lien and security interest of the Pledge
Agreement to be complied with. Any certificate or opinion required by TIA
Section 314(d) may be made by an Officer of the Company except in cases where
TIA Section 314(d) requires that such certificate or opinion be made by an
independent Person, which Person shall be an independent engineer, appraiser or
other expert selected or approved by the Trustee in the exercise of reasonable
care.
SECTION 11.4. CERTIFICATE OF THE COMPANY.
The Company shall furnish to the Trustee, prior to any
proposed release of Collateral other than pursuant to the express terms of the
Pledge Agreement, (i) all documents required by TIA Section 314 and (ii) an
Opinion of Counsel to the effect that such accompanying documents constitute
all documents required by TIA Section 314 and that such release is permitted by
the terms of this Indenture and the Pledge Agreement.
SECTION 11.5. AUTHORIZATION OF ACTIONS TO BE TAKEN BY THE TRUSTEE UNDER THE
PLEDGE AGREEMENT.
Subject to the provisions of Section 7.1 and Section 7.2, the
Trustee may, without the consent of the Holders of the Notes, on behalf of the
Holders of the Notes, take all actions it deems necessary or appropriate in
order to (a) enforce any of the terms of the Pledge Agreement and (b) collect
and receive any and all amounts payable in respect of the obligations of the
Company hereunder and thereunder. The Trustee shall have power to institute
and maintain such suits and
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proceedings as it may deem expedient to prevent any impairment of the
Collateral by any acts that may be unlawful or in violation of the Pledge
Agreement or this Indenture, and such suits and proceedings as the Trustee may
deem expedient to preserve or protect its interests and the interests of the
Holders of the Notes in the Collateral (including power to institute and
maintain suits or proceedings to restrain the enforcement of or compliance with
any legislative or other governmental enactment, rule or order that may be
unconstitutional or otherwise invalid if the enforcement of, or compliance
with, such enactment, rule or order would impair the security interest
hereunder or be prejudicial to the interests of the Holders of the Notes or of
the Trustee).
SECTION 11.6. AUTHORIZATION OF RECEIPT OF FUNDS BY THE TRUSTEE UNDER THE
PLEDGE AGREEMENT.
The Trustee is authorized to receive any funds for the benefit
of the Holders of the Notes disbursed under the Pledge Agreement, and to make
further distributions of such funds to the Holders of the Notes according to
the provisions of this Indenture.
SECTION 11.7. TERMINATION OF SECURITY INTEREST.
Upon the earliest to occur of (i) the date upon which the
balance of Available Funds (as defined in the Pledge Agreement) shall have been
reduced to zero, (ii) if no Default or Event of Default exists, the date upon
which the Company shall have paid in full in accordance with the terms of this
Indenture the first two scheduled interest payments due on the Notes, (iii) the
payment in full of all obligations of the Company under this Indenture and the
Notes, (iv) Legal Defeasance under Article 8, (v) Covenant Defeasance under
Article 8, and (vi) the termination of the Pledge Agreement pursuant to the
terms thereof, the Trustee shall at the written request of the Company, release
the Liens pursuant to this Indenture and the Pledge Agreement upon the
Company's compliance with the provisions of the TIA pertaining to release of
collateral.
ARTICLE 12
MISCELLANEOUS
SECTION 12.1. TRUST INDENTURE ACT CONTROLS.
If any provision of this Indenture limits, qualifies or
conflicts with the duties imposed by TIA Section 318(c), such TIA-imposed
duties shall control under this Indenture.
SECTION 12.2. NOTICES.
Any notice or communication by the Company, any Subsidiary
Guarantor or the Trustee to the other shall be sufficiently given if in writing
and delivered in person or mailed by first
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class mail (registered or certified, return receipt requested), telex,
telecopier or overnight air courier guaranteeing next day delivery, addressed
as follows:
If to the Company or any Subsidiary Guarantor:
First Wave Marine, Inc.
▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇.
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Phone No.: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopier No.: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: Chief Financial Officer
If to the Trustee:
-------------------------------------------
-------------------------------------------
-------------------------------------------
Phone No.:
-------------------------------
Telecopier No.:
--------------------------
Attention: Corporate Trust Department
The Company, any Subsidiary Guarantor or the Trustee, by
notice to the other, may designate additional or different addresses for
subsequent notices or communications.
All notices and communications (other than those sent to
Holders) shall be deemed to have been duly given: at the time delivered by
hand, if personally delivered; five Business Days after being deposited in the
mail, postage prepaid, if mailed; when receipt acknowledged, if telecopied; and
the next Business Day after timely delivery to the courier, if sent by
overnight air courier guaranteeing next day delivery, in each case to the
address shown above. Notwithstanding the foregoing, notices to the Trustee
shall only be effective upon actual receipt thereof by the Trustee at the
Corporate Trust Office of the Trustee.
Any notice or communication to a Holder shall be mailed by
first class mail, certified or registered, return receipt requested, or by
overnight air courier guaranteeing next day delivery to its address shown on
the register kept by the Registrar. Any notice or communication shall also be
so mailed to any Person described in TIA Section 313(c), to the extent
required by the TIA. Failure to mail a notice or communication to a Holder or
any defect in it shall not affect its sufficiency with respect to other
Holders.
If a notice or communication is mailed in the manner provided
above within the time prescribed, it is duly given, whether or not the
addressee receives it.
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If the Company mails a notice or communication to Holders, it
shall mail a copy to the Trustee and each Agent at the same time.
SECTION 12.3. COMMUNICATION BY HOLDERS OF NOTES WITH OTHER HOLDERS OF NOTES.
Holders may communicate pursuant to TIA Section 312(b) with
other Holders with respect to their rights under this Indenture or the Notes.
The Company, the Subsidiary Guarantors, the Trustee, the Registrar and anyone
else shall have the protection of TIA Section 312(c).
SECTION 12.4. CERTIFICATE AND OPINION AS TO CONDITIONS PRECEDENT.
Upon any request or application by the Company or any
Subsidiary Guarantor to the Trustee to take any action under this Indenture,
the Company or such Subsidiary Guarantor, as the case may be, shall furnish to
the Trustee:
(a) an Officers' Certificate in form and substance
reasonably satisfactory to the Trustee (which shall include the
statements set forth in Section 12.5 hereof) stating that, in the
opinion of the signers, all conditions precedent and covenants, if
any, provided for in this Indenture relating to the proposed action
have been satisfied; and
(b) an Opinion of Counsel in form and substance
reasonably satisfactory to the Trustee (which shall include the
statements set forth in Section 12.5 hereof) stating that, in the
opinion of such counsel, all such conditions precedent and covenants
have been satisfied.
SECTION 12.5. STATEMENTS REQUIRED IN CERTIFICATE OR OPINION.
Each certificate or opinion with respect to compliance with a
condition or covenant provided for in this Indenture (other than a certificate
provided pursuant to TIA Section 314(a)(4)) shall comply with the provisions
of TIA Section 314(e), shall comply with the definition of the term "Officers'
Certificate" and shall include:
(a) a statement that the Person making such certificate
or opinion has read such covenant or condition;
(b) a brief statement as to the nature and scope of the
examination or investigation upon which the statements or opinions
contained in such certificate or opinion are based;
(c) a statement that, in the opinion of such Person, he
or she has made such examination or investigation as is necessary to
enable him to express an informed opinion as to whether or not such
covenant or condition has been satisfied; and
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(d) a statement as to whether or not, in the opinion of
such Person, such condition or covenant has been satisfied.
SECTION 12.6. RULES BY TRUSTEE AND AGENTS.
The Trustee may make reasonable rules for action by or at a
meeting of Holders. The Registrar or Paying Agent may make reasonable rules and
set reasonable requirements for its functions.
SECTION 12.7. NO PERSONAL LIABILITY OF DIRECTORS, OFFICERS, EMPLOYEES AND
OTHERS.
No past, present or future director, officer, employee,
incorporator, partner or stockholder of either of the Company or any of its
Subsidiaries, as such, shall have any liability for any obligations of the
Company or its Subsidiaries under the Notes, the Subsidiary Guarantees or this
Indenture or for any claim based on, in respect of or by reason of such
obligations or their creation. Each Holder by accepting a Note waives and
releases all such liability. This waiver and release are part of the
consideration for issuance of the Notes and the Subsidiary Guarantees.
SECTION 12.8. GOVERNING LAW.
THIS INDENTURE AND THE NOTES SHALL BE GOVERNED BY, AND
CONSTRUED AND ENFORCED IN ACCORDANCE WITH, THE INTERNAL LAW OF THE STATE OF NEW
YORK. THE COMPANY HEREBY SUBMITS TO THE PERSONAL JURISDICTION OF ANY COMPETENT
COURT OF THE STATE OF NEW YORK, OR A UNITED STATES FEDERAL COURT SITTING IN NEW
YORK CITY.
SECTION 12.9. NO ADVERSE INTERPRETATION OF OTHER AGREEMENTS.
This Indenture may not be used to interpret any other
indenture, loan or debt agreement of the Company or its Subsidiaries or of any
other Person. Any such indenture, loan or debt agreement may not be used to
interpret this Indenture.
SECTION 12.10. SUCCESSORS.
This Indenture shall inure to the benefit of and be binding
upon the parties hereto and each of their respective successors and assigns,
except that the Company may not assign this Indenture or its obligations
hereunder except as expressly permitted by Sections 5.1 and 5.2. Without
limiting the generality of the foregoing, this Indenture shall inure to the
benefit of all Holders from time to time. Nothing expressed or mentioned in
this Indenture is intended or shall be construed to give any Person, other than
the parties hereto, their respective successors and assigns, and the Holders,
any legal or equitable right, remedy or claim under or in respect of this
Indenture or any provision herein contained.
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SECTION 12.11. SEVERABILITY.
In case any provision in this Indenture or in the Notes shall
be invalid, illegal or unenforceable, the validity, legality and enforceability
of the remaining provisions shall not in any way be affected or impaired
thereby.
SECTION 12.12. ORIGINALS.
The parties may sign any number of copies of this Indenture.
Each signed copy shall be an original, but all of them together represent the
same agreement.
SECTION 12.13. TABLE OF CONTENTS, HEADINGS, ETC.
The Table of Contents, Cross-Reference Table and Headings of
the Articles and Sections of this Indenture have been inserted for convenience
of reference only, are not to be considered a part of this Indenture and shall
in no way modify or restrict any of the terms or provisions hereof.
SECTION 12.14. COUNTERPARTS
This Indenture may be signed in counterparts and by the
different parties hereto in separate counterparts, each of which shall
constitute an original and all of which together shall constitute one and the
same instrument.
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IN WITNESS WHEREOF, the parties hereto have caused this Indenture to
be duly executed as of the date first above written.
THE COMPANY:
FIRST WAVE MARINE, INC.
By:
---------------------------------------
Name:
-------------------------------------
Title:
------------------------------------
INITIAL SUBSIDIARY GUARANTOR:
NEWPARK SHIPBUILDING AND REPAIR, INC.
By:
---------------------------------------
Name:
-------------------------------------
Title:
------------------------------------
EAE SERVICES, INC.
By:
---------------------------------------
Name:
-------------------------------------
Title:
------------------------------------
EAE INDUSTRIES, INC.
By:
---------------------------------------
Name:
-------------------------------------
Title:
------------------------------------
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NEWPARK MARINE FABRICATORS, INC.
By:
---------------------------------------
Name:
-------------------------------------
Title:
------------------------------------
LOUISIANA SHIP, INC.
By:
---------------------------------------
Name:
-------------------------------------
Title:
------------------------------------
TRUSTEE:
BANK ONE, NA., as Trustee
By:
---------------------------------------
Name:
-------------------------------------
Title:
------------------------------------
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--------------------------------------------------------------------------------
EXHIBIT A
(Form of Face of Note)
Unless and until it is exchanged in whole or in part for Notes in
definitive form, this Note may not be transferred except as a whole by the
Depositary to a nominee of the Depositary or by a nominee of the Depositary to
the Depositary or another nominee of the Depositary or by the Depositary or any
such nominee to a successor Depositary or a nominee of such successor
Depositary. Unless this certificate is presented by an authorized
representative of The Depository Trust Company, 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 may be requested by an authorized
representative of DTC (and any payment is made to Cede & Co. or such other
entity as may be requested by an authorized representative of DTC), ANY
TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON
IS WRONGFUL inasmuch as the registered owner hereof, Cede & Co., has an
interest herein.[1]
--------------------------
[1] This paragraph should be included only if the Note is issued in global
form.
A-1
87
FIRST WAVE MARINE, INC.
______% Senior Notes due 2008
No. $__________
CUSIP #__________
First Wave Marine, Inc., a Delaware corporation (the "Company"),
promises to pay to _________________ or its registered assigns, the principal
sum indicated on Schedule A hereof on _________________, 2008.
Interest Payment Dates: _____________ and ____________, commencing on
___________, 1998.
Record Dates: ______________ and _____________.
Dated: ___________, _____
FIRST WAVE MARINE, INC.
By:
---------------------------------
Name:
-------------------------------
Title:
------------------------------
TRUSTEE'S CERTIFICATE OF
AUTHENTICATION
This is one of the
Notes referred to in the
within-mentioned Indenture:
BANK ONE, N.A., as Trustee
By:
----------------------------------
Authorized Signatory
Dated:
--------------------------------
A-2
88
(Form of Reverse Side of Note)
_____% Senior Notes due 2008
Capitalized terms used herein but not defined shall have the meanings
assigned to them in the Indenture referred to below unless otherwise indicated.
1. INTEREST. The Notes will be limited in aggregate principal
amount to $90 million (except as otherwise provided in Section 2.7 of the
Indenture referred to below) and will mature on ______________, 2008. The
Company promises to pay interest on the principal amount of this Note from the
Closing Date until maturity. The Company will pay interest semi-annually on
______________ and _____________ of each year, commencing ______________, 1998,
or if any such day is not a Business Day, on the next succeeding Business Day
(each an "Interest Payment Date") to Holders of record on the immediately
preceding ______________ and _____________, as appropriate (each, a "Record
Date"). Interest on the Notes will accrue at the rate of ____% per annum from
the most recent date to which interest has been paid or, if no interest has
been paid, from the Closing Date. The Company shall pay interest (including
post-petition interest in any proceeding under any Bankruptcy Law to the extent
that such interest is an allowed claim enforceable against the debtor under
such Bankruptcy Law) on overdue principal and premium, if any, from time to
time on demand at the rate equal to 1% per annum in excess of the rate then in
effect; it shall pay interest (including post-petition interest in any
proceeding under any Bankruptcy Law) on overdue installments of interest
(without regard to any applicable grace periods) from time to time on demand at
the same rate to the extent lawful. Interest will be computed on the basis of
a 360-day year of twelve 30-day months.
2. METHOD OF PAYMENT. The Company shall pay the principal of,
and premium, and interest on, the Notes on the dates and in the manner provided
herein and in the Indenture. Principal of, and premium, and interest on,
Certificated Notes will be payable, and Certificated Notes may be presented for
registration of transfer or exchange, at the office or agency of the Company
maintained for such purpose. Principal of, and premium, and interest on,
Global Notes will be payable by the Company through the Trustee to the
Depositary by wire transfer of immediately available funds. Holders of
Certificated Notes will be entitled to receive interest payments by wire
transfer in immediately available funds if appropriate wire transfer
instructions have been received in writing by the Trustee not less than 15 days
prior to the applicable Interest Payment Date. Such wire instructions, upon
receipt by the Trustee, shall remain in effect until revoked by such Holder.
If wire instructions have not been received by the Trustee with respect to any
Holder of a Certificated Note, payment of interest may be made by check in
immediately available funds mailed to such Holder at the address set forth upon
the Register maintained by the Registrar.
3. PAYING AGENT AND REGISTRAR. Initially, Bank One, N.A., the
Trustee under the Indenture, will act as Paying Agent and Registrar. The
Company may change any Paying Agent or Registrar without notice to any Holder.
The Company or any of its Subsidiaries may act in any such
A-3
89
capacity, except that none of the Company, its Subsidiaries or their Affiliates
shall act (i) as Paying Agent in connection with any redemption, offer to
purchase, discharge or defeasance, as otherwise specified in the Indenture, and
(ii) as Paying Agent or Registrar if a Default or Event of Default has occurred
and is continuing.
4. INDENTURE.
The Company issued the Notes under an Indenture dated as of
_______________, 1998 (as such may be amended, supplemented or restated from
time to time, the "Indenture") by and among the Company, the Initial Subsidiary
Guarantors named therein, and the Trustee. The terms of the Notes include
those stated in the Indenture and those made part of the Indenture by reference
to the Trust Indenture Act of 1939, as amended (15 U.S. Code Sections 77aaa-
77bbbb). The Notes are subject to all such terms, and Holders are referred to
the Indenture and such Act for a statement of such terms. The Notes are senior
obligations of the Company limited to $90 million in aggregate principal amount
(except as otherwise provided in Section 2.7 of the Indenture).
Each of the Initial Subsidiary Guarantors will Guarantee the
Notes, and the Indenture requires the Company to cause any other Person that
becomes a Restricted Subsidiary after the Closing Date to execute and deliver
to the Trustee a supplemental indenture pursuant to which such Restricted
Subsidiary will Guarantee the Notes. So long as no Default or Event of Default
exists or would be caused thereby, any Person that is no longer a Restricted
Subsidiary may, by execution and delivery to the Trustee of a supplemental
indenture satisfactory to the Trustee, be released from its Subsidiary
Guarantee and cease to Guarantee the Notes.
The Indenture contains certain covenants that, among other
things, limit the ability of the Company and its Restricted Subsidiaries to
incur additional Indebtedness, pay dividends or make other distributions,
repurchase any capital stock or Subordinated Indebtedness, make certain
investments, create certain liens, enter into certain transactions with
affiliates, sell assets, enter into certain mergers and consolidations, allow
Restricted Subsidiaries to create certain dividend and other payment
restrictions, enter into sale and leaseback transactions, and issue or sell
capital stock of Restricted Subsidiaries.
5. OPTIONAL REDEMPTION.
The Notes will not be redeemable at the Company's option prior
to ______________, 2003, except as provided below. Thereafter, the Notes will
be subject to redemption at the option of the Company, in whole or in part,
upon not less than 30 nor more than 60 days' notice to the Holders, at the
redemption prices (expressed as percentages of principal amount) set forth
below plus accrued and unpaid interest thereon to the applicable redemption
date, if redeemed during the twelve-month period beginning on ______________ of
the years indicated below:
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YEAR PERCENTAGE
---- ----------
2001 . . . . . . . . . . . . . . . . . . . . . ______%
2002 . . . . . . . . . . . . . . . . . . . . . ______%
2003 . . . . . . . . . . . . . . . . . . . . . ______%
2004 and thereafter . . . . . . . . . . . . . 100.000%
Notwithstanding the foregoing, on and prior to
_____________, 2001, the Company, at its option, may redeem, from time to time,
up to 35% of the aggregate principal amount of the Notes at a redemption price
of ____% of the principal amount thereof, plus accrued and unpaid interest
thereon to the redemption date with the net proceeds of a Public Equity
Offering, as described in Section 3.7 of the Indenture; provided that no less
than 65% of the aggregate principal amount of the Notes initially issued
remains outstanding immediately after giving effect to such redemption; and
provided, further, that such notice of redemption shall be given not later than
30 days, and such redemption shall occur not later than 90 days, after the date
of the closing of the transaction giving rise to such Public Equity Offering.
Unless the Company defaults in making such redemption payment, on and after the
redemption date, interest ceases to accrue on the Notes or portions thereof
called for redemption.
6. MANDATORY REDEMPTION. Except as set forth in paragraph 7
below, the Company shall not be required to make mandatory redemption payments
with respect to the Notes.
7. REPURCHASE AT OPTION OF HOLDER.
(a) Upon a Change of Control, the Company shall be
required to make an offer to Holders to repurchase all or any part (equal to
$1,000 or an integral multiple thereof) of each Holder's Notes at a purchase
price equal to 101% of the aggregate principal amount thereof, plus accrued and
unpaid interest thereon to the date of purchase as provided in, and subject to
the terms of, the Indenture.
(b) If the Company or any Restricted Subsidiary
consummates any Asset Sale, the Company may be required, subject to the terms
and conditions of the Indenture, to utilize a certain portion of the proceeds
received from such Asset Sale to repurchase Notes at a purchase price equal to
100% of the principal amount thereof, plus accrued and unpaid interest thereon
to the date of purchase.
8. DENOMINATIONS, TRANSFER, EXCHANGE. The Notes are in
registered form without coupons in denominations of $1,000 and integral
multiples of $1,000. The transfer of Notes may be registered and Notes may be
exchanged as provided in the Indenture. The Registrar and the Trustee may
require a Holder, among other things, to furnish appropriate endorsements and
transfer documents and the Company may require a Holder to pay any taxes and
fees required by law or permitted by the Indenture. The Company need not
exchange or register the transfer of any Note or portion of a Note selected for
redemption, except for the unredeemed portion of any Note being
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redeemed in part. Also, it need not exchange or register the transfer of any
Notes for a period of 15 days before a selection of Notes to be redeemed or
during the period between a Record Date and the corresponding Interest Payment
Date.
9. PERSONS DEEMED OWNERS. The registered Holder of a Note may be
treated as its owner for all purposes.
10. UNCLAIMED MONEY. If money for the payment of principal,
premium, or interest remains unclaimed for one year, the Trustee and the Paying
Agent will pay the money back to the Company at its request. After that, all
liability of the Trustee and such Paying Agent with respect to such money shall
cease.
11. DEFEASANCE PRIOR TO REDEMPTION OR MATURITY. Subject to
certain conditions contained in the Indenture, 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 Government Securities sufficient
to pay the principal of, premium, and interest on, the Notes to redemption or
maturity, as the case may be.
12. AMENDMENT, SUPPLEMENT AND WAIVER. Subject to certain
exceptions, the Indenture or the Notes may be amended or supplemented with the
consent of the Holders of at least a majority in principal amount of the Notes
then outstanding, and any existing Default or Event or Default or compliance
with any provision of the Indenture or the Notes may be waived with the consent
of the Holders of a majority in principal amount of the then outstanding Notes.
Without the consent of any Holder of a Note, the Indenture or the Notes may be
amended or supplemented to cure any ambiguity, defect or inconsistency, to
provide for uncertificated Notes in addition to or in place of certificated
Notes, to provide for the assumption of the Company's obligations to Holders of
Notes in case of a merger or consolidation, to make any change that would
provide any additional rights or benefits to the Holders of the Notes or that
does not adversely affect the legal rights under the Indenture of any such
Holder, or to comply with the requirements of the SEC in order to effect or
maintain the qualification of the Indenture under the TIA as then in effect.
13. DEFAULTS AND REMEDIES.
Events of Default include: (i) default for 30 days in the
payment when due of any interest payable with respect to the Notes at any time
(provided that such 30-day grace period shall be inapplicable for the first two
scheduled interest payments due on the Notes); (ii) default in payment when due
(whether at maturity, upon redemption or repurchase, or otherwise) of the
principal of or premium, if any, on the Notes; (iii) failure by the Company or
any Restricted Subsidiary to comply with the provisions described under
Articles 5, 10 or 11 or Sections 4.10 or 4.14 of the Indenture; (iv) failure by
the Company or any Restricted Subsidiary for 30 calendar days after notice from
the Trustee or Holders of at least 25% in aggregate principal amount of the
Notes to the Company and the Trustee to comply with any of its other agreements
in the Indenture, the Notes or the Pledge Agreement; (v) default under any
mortgage, indenture or instrument under
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which there may be issued or by which there may be secured or evidenced any
Indebtedness for money borrowed by the Company or any of its Restricted
Subsidiaries (or the payment of which is Guaranteed by the Company or any of
its Restricted Subsidiaries), whether such Indebtedness or Guarantee now exists
or is created after the date of the Indenture, which default (a) is caused by a
failure to pay principal of or premium, if any, or interest on such
Indebtedness following the expiration of the grace period provided in such
Indebtedness on the date of such default (a "Payment Default") or (b) results
in the acceleration of such Indebtedness (including any obligation to redeem or
repurchase such Indebtedness) prior to its express maturity and, in each case,
the principal amount of any such Indebtedness, together with the principal
amount of any other such Indebtedness under which there has been a Payment
Default or the maturity of which has been so accelerated, aggregates $1 million
or more; (vi) failure by the Company or any of its Restricted Subsidiaries to
pay final non-appealable judgments rendered against the Company or any of its
Restricted Subsidiaries aggregating in excess of $1 million, which judgments
are not paid, discharged or stayed for a period of 60 days after such judgments
become final and non-appealable; (vii) certain events of bankruptcy or
insolvency with respect to the Company or any Restricted Subsidiary; (viii)
certain events of breach, default, repudiation or unenforceability of the
Pledge Agreement; and (ix) any Guarantee of the Notes shall be held in a
judicial proceeding to be unenforceable or invalid or shall cease for any
reason to be in full force and effect, or any Restricted Subsidiary, or any
Person acting on behalf of any Restricted Subsidiary, shall deny or disaffirm
its obligations under its Guarantee of any Notes.
If an Event of Default occurs and is continuing, the Trustee
may pursue any available remedy by proceeding at law or in equity to collect
any payment due, or to enforce the performance of any provision, under the
Notes or the Indenture. The Trustee may refuse to enforce the Indenture or the
Notes unless it receives reasonable indemnity or security. Holders of Notes
may not enforce the Indenture or the Notes except as provided in the Indenture.
Subject to certain limitations, Holders of a majority in principal amount of
the Notes may direct the Trustee in its exercise of any trust or power. The
Trustee may withhold from Holders of the Notes notice of any continuing Default
or Event of Default (except under clauses (i) or (ii) above) if it determines
that withholding notice is in their interest.
14. PLEDGE AGREEMENT. In order to secure the due and punctual
payment of the principal of, premium, and interest on the Notes and the payment
and performance of all other obligations of the Company to the Holders of the
Notes or the Trustee under the Indenture, the Company has granted a first
priority Lien on certain funds and Government Securities to the Trustee for the
benefit of the Holders, as more particularly described in the Pledge Agreement.
If the funds and Government Securities held in the Pledge Account exceed the
amount sufficient, in the opinion of a nationally recognized firm of
independent public accountants selected by the Company, to provide for payment
in full of the first two scheduled interest payments due on the Notes (or, in
the event an interest payment or interest payments have been made, an amount
sufficient to provide for payment in full of any interest payments remaining,
up to and including the second scheduled interest payment), if no Default or
Event of Default is then continuing, upon the satisfaction of certain
conditions specified in the Pledge Agreement, any such excess amount of funds
and Government
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Securities shall be paid to the Company. Upon such payment to the Company, the
Lien of the Trustee thereon for the benefit of the Holders shall be released.
15. TRUSTEE'S DEALINGS WITH COMPANY. The Trustee, in its
individual or any other capacity, may make loans to, accept deposits from, and
perform services for the Company or its Affiliates, and may otherwise deal with
the Company or its Affiliates, as if it were not the Trustee, subject to the
provisions of TIA Section 310.
16. NO RECOURSE AGAINST OTHERS. No past or present director,
officer, employee, incorporator, partner or stockholder of either of the
Company or any of its Subsidiaries, as such, shall have any liability for any
obligations of the Company or its Subsidiaries under any of the Notes, the
Subsidiary Guarantees or the Indenture or for any claim based on, in respect of
or by reason of such obligations or their creation. Each Holder by accepting a
Note waives and releases all such liability. This waiver and release are part
of the consideration for the issuance of the Notes.
17. AUTHENTICATION. This Note shall not be valid until
authenticated by the manual signature of the Trustee or an authenticating
agent.
18. ABBREVIATIONS. Customary abbreviations may be used in the
name of a Holder or an assignee, such as: TEN COM (= tenants in common), TEN
ENT (= tenants by the entireties), JT TEN (= joint tenants with right of
survivorship and not as tenants in common), CUST (= Custodian), and U/G/M/A (=
Uniform Gifts to Minors Act).
19. CUSIP NUMBERS. Pursuant to a recommendation promulgated by
the Committee on Uniform Security Identification Procedures, the Company has
caused CUSIP numbers to be printed on the Notes and the Trustee may use CUSIP
numbers in notices of redemption as a convenience to Holders. No
representation is made as to the accuracy of such numbers either as printed on
the Notes or as contained in any notice of redemption and reliance may be
placed only on the other identification numbers placed thereon.
20. GOVERNING LAW. THE INDENTURE AND THIS NOTE SHALL BE GOVERNED
BY, AND CONSTRUED AND ENFORCED IN ACCORDANCE WITH, THE INTERNAL LAW OF THE
STATE OF NEW YORK.
21. SUCCESSOR CORPORATION. In the event a successor corporation
assumes all the obligations of the Company under the Notes and the Indenture,
pursuant to the terms thereof, the Company will be released from all such
obligations.
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The Company will furnish to any Holder upon written request
and without charge a copy of the Indenture and the Pledge Agreement. Requests
may be made to:
First Wave Marine, Inc.
▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇.
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Phone No.: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopier No.: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: Chief Financial Officer
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ASSIGNMENT FORM
To assign this Note, fill in the form below and have your
signature guaranteed:
(I) or (we) assign and transfer this Note to
--------------------------------------------------------------------------------
(Insert assignee's soc. sec. or tax I.D. no.)
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
(Print or type assignee's name, address and zip code)
and irrevocably appoint ________________________________________________________
to transfer this Note on the books of the Company. The agent may substitute
another to act for him.
Date: Your Name:
----------------------- ------------------------------------
(Print your name exactly as it
appears on the face of this Note)
Your Signature:
-------------------------------
(Sign exactly as your name
appears on the face of this Note)
Signature Guarantee*:
-------------------------
----------------------------------
* Participant in a recognized Signature Guarantee Medallion Program (or
other signature guarantor acceptable to the Trustee).
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OPTION OF HOLDER TO ELECT PURCHASE
If you elect to have this Note purchased by the Company
pursuant to Section 4.10 or Section 4.14 of the Indenture, check the
appropriate box below:
[ ] Section 4.10
[ ] Section 4.14
If you elect to have only part of this Note purchased by the
Company pursuant to Section 4.10 or Section 4.14 of the Indenture, state the
amount (in minimum denominations of $1000 or integral multiples thereof) you
elect to have purchased: $___________
Date: Your Name:
--------------------- ------------------------------------
(Print your name exactly as it
appears on the face of this Note)
Your Signature:
-------------------------------
(Sign exactly as your name appears on the face of this Note)
Social Security or Tax Identification No.:
----------------------------------------------
Signature Guarantee*:
-------------------------
--------------------------
* Participant in a recognized Signature Guarantee Medallion Program (or
other signature guarantor acceptable to the Trustee).
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SCHEDULE A
SCHEDULE OF INCREASES OR DECREASES IN GLOBAL NOTE [2]
The initial principal amount at maturity of this Global Note
shall be $______________. The following increases or decreases in this Global
Note have been made:
Principal Amount of
this Global Note Signature of
Amount of decrease Amount of increase following such authorized officer
in Principal Amount in Principal Amount decrease (or of Trustee or Note
Date of Exchange of this Global Note of this Global Note increase) Custodian
---------------- ------------------- ------------------- ------------------- ------------------
[2] This schedule should be included only if the Note is issued in global
form.
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