EXHIBIT 4.1
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TRANSMONTAIGNE INC.
AND THE GUARANTORS LISTED ON THE SIGNATURE PAGES HERETO
9 1/8% SENIOR SUBORDINATED NOTES DUE 2010
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INDENTURE
Dated as of May 30, 2003
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▇▇▇▇▇ FARGO BANK MINNESOTA, NATIONAL ASSOCIATION,
as Trustee
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CROSS-REFERENCE TABLE
TIA Indenture
Section Section
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310(a)(1)....................................................................... 7.10
(a)(2)....................................................................... 7.10
(a)(3)....................................................................... N.A.
(a)(4)....................................................................... N.A.
(a)(5)....................................................................... 7.10
(b).......................................................................... 7.10
(c).......................................................................... N.A.
311(a).......................................................................... 7.11
(b).......................................................................... 7.11
(c).......................................................................... N.A.
312(a).......................................................................... 2.05
(b).......................................................................... 13.03
(c).......................................................................... 13.03
313(a).......................................................................... 7.06
(b)(2)....................................................................... 7.07
(c).......................................................................... 7.06; 13.02
(d).......................................................................... 7.06
314(a).......................................................................... 4.03; 13.02
(c)(1)....................................................................... 13.04
(c)(2)....................................................................... 13.04
(c)(3)....................................................................... N.A.
(e).......................................................................... 13.05
(f).......................................................................... N.A.
315(a).......................................................................... 7.01
(b).......................................................................... 7.05; 13.02
(c).......................................................................... 7.01
(d).......................................................................... 7.01
(e).......................................................................... 6.11
316(a) (last sentence).......................................................... 2.09
(a)(1)(A).................................................................... 6.05
(a)(1)(B).................................................................... 6.04
(a)(2)....................................................................... N.A.
(b).......................................................................... 6.07
(c).......................................................................... 2.12
317(a)(1)....................................................................... 6.08
(a)(2)....................................................................... 6.09
(b).......................................................................... 2.04
318(a).......................................................................... 13.01
(b).......................................................................... N.A.
(c).......................................................................... 13.01
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N.A. means Not Applicable
Note: This Cross-Reference Table is not part of this Agreement.
TABLE OF CONTENTS
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ARTICLE I
DEFINITIONS AND INCORPORATION
BY REFERENCE
1.01 Definitions..................................................................................1
1.02 Other Definitions...........................................................................27
1.03 Incorporation by Reference of Trust Indenture Act...........................................28
1.04 Rules of Construction.......................................................................28
ARTICLE II
THE NOTES
2.01 Form and Dating.............................................................................29
2.02 Execution and Authentication................................................................30
2.03 Registrar and Paying Agent..................................................................30
2.04 Paying Agent to Hold Money in Trust.........................................................31
2.05 Holder Lists................................................................................31
2.06 Transfer and Exchange.......................................................................31
2.07 Replacement Notes...........................................................................44
2.08 Outstanding Notes...........................................................................45
2.09 Treasury Notes..............................................................................45
2.10 Temporary Notes.............................................................................45
2.11 Cancellation................................................................................45
2.12 Defaulted Interest..........................................................................46
2.13 CUSIP Numbers...............................................................................46
ARTICLE III
REDEMPTION AND PREPAYMENT
3.01 Notices to Trustee..........................................................................46
3.02 Selection of Notes to Be Redeemed...........................................................46
3.03 Notice of Redemption........................................................................47
3.04 Effect of Notice of Redemption..............................................................48
3.05 Deposit of Redemption Price.................................................................48
3.06 Notes Redeemed in Part......................................................................48
3.07 Optional Redemption.........................................................................48
3.08 Mandatory Redemption........................................................................49
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ARTICLE IV
COVENANTS
4.01 Payment of Notes............................................................................49
4.02 Maintenance of Office or Agency.............................................................50
4.03 Reports.....................................................................................50
4.04 Compliance Certificate......................................................................51
4.05 Taxes.......................................................................................51
4.06 Stay, Extension and Usury Laws..............................................................52
4.07 Restricted Payments.........................................................................52
4.08 Dividend and Other Payment Restrictions Affecting Subsidiaries..............................54
4.09 Limitation on Additional Indebtedness.......................................................56
4.10 Asset Sales.................................................................................57
4.11 Transactions with Affiliates................................................................59
4.12 Liens.......................................................................................60
4.13 Business Activities.........................................................................61
4.14 Corporate Existence.........................................................................61
4.15 Offer to Repurchase Upon Change of Control..................................................61
4.16 Designation of Unrestricted Subsidiaries....................................................62
4.17 Limitation on Issuance or Sale of Equity Interests of Restricted Subsidiaries...............63
4.18 Additional Note Guarantees..................................................................63
4.19 Limitation on Layering Indebtedness.........................................................64
ARTICLE V
SUCCESSORS
5.01 Merger, Consolidation, or Sale of Assets....................................................64
5.02 Successor Corporation Substituted...........................................................65
ARTICLE VI
DEFAULTS AND REMEDIES
6.01 Events of Default...........................................................................65
6.02 Acceleration................................................................................67
6.03 Other Remedies..............................................................................67
6.04 Waiver of Past Defaults.....................................................................68
6.05 Control by Majority.........................................................................68
6.06 Limitation on Suits.........................................................................68
6.07 Rights of Holders of Notes to Receive Payment...............................................69
6.08 Collection Suit by Trustee..................................................................69
6.09 Trustee May File Proofs of Claim............................................................69
6.10 Priorities..................................................................................69
6.11 Undertaking for Costs.......................................................................70
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ARTICLE VII
TRUSTEE
7.01 Duties of Trustee...........................................................................70
7.02 Rights of Trustee...........................................................................71
7.03 Individual Rights of Trustee................................................................72
7.04 Trustee's Disclaimer........................................................................72
7.05 Notice of Defaults..........................................................................73
7.06 Reports by Trustee to Holders of the Notes..................................................73
7.07 Compensation and Indemnity..................................................................73
7.08 Replacement of Trustee......................................................................74
7.09 Successor Trustee by Merger, etc............................................................75
7.10 Eligibility; Disqualification...............................................................75
7.11 Preferential Collection of Claims Against Company...........................................75
ARTICLE VIII
LEGAL DEFEASANCE AND COVENANT DEFEASANCE
8.01 Option to Effect Legal Defeasance or Covenant Defeasance....................................76
8.02 Legal Defeasance and Discharge..............................................................76
8.03 Covenant Defeasance.........................................................................76
8.04 Conditions to Legal or Covenant Defeasance..................................................77
8.05 Deposited Money and U.S. Government Securities to be Held in Trust; Other Miscellaneous
Provisions..................................................................................78
8.06 Repayment to Company........................................................................78
8.07 Reinstatement...............................................................................79
ARTICLE IX
AMENDMENT, SUPPLEMENT AND WAIVER
9.01 Without Consent of Holders of Notes.........................................................79
9.02 With Consent of Holders of Notes............................................................80
9.03 Compliance with Trust Indenture Act.........................................................81
9.04 Revocation and Effect of Consents...........................................................81
9.05 Notation on or Exchange of Notes............................................................82
9.06 Trustee to Sign Amendments, etc.............................................................82
ARTICLE X
SUBORDINATION
10.01 Agreement to Subordinate....................................................................82
10.02 Liquidation; Dissolution; Bankruptcy........................................................82
10.03 Default on Designated Senior Debt...........................................................83
10.04 Acceleration of Securities..................................................................84
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10.05 When Distribution Must Be Paid Over.........................................................84
10.06 Notice by Company...........................................................................84
10.07 Subrogation.................................................................................84
10.08 Relative Rights.............................................................................85
10.09 Subordination May Not Be Impaired by Company................................................85
10.10 Distribution or Notice to Representative....................................................85
10.11 Rights of Trustee and Paying Agent..........................................................85
10.12 Authorization to Effect Subordination.......................................................86
10.13 Amendments..................................................................................86
ARTICLE XI
NOTE GUARANTEES
11.01 Guarantee...................................................................................86
11.02 Subordination of Note Guarantee.............................................................87
11.03 Limitation on Guarantor Liability...........................................................87
11.04 Execution and Delivery of Note Guarantee....................................................88
11.05 Guarantors May Consolidate, etc., on Certain Terms..........................................88
11.06 Releases Following Sale of Assets...........................................................89
ARTICLE XII
SATISFACTION AND DISCHARGE
12.01 Satisfaction and Discharge..................................................................89
12.02 Application of Trust Money..................................................................90
ARTICLE XIII
MISCELLANEOUS
13.01 Trust Indenture Act Controls................................................................91
13.02 Notices.....................................................................................91
13.03 Communication by Holders of Notes with Other Holders of Notes...............................92
13.04 Certificate and Opinion as to Conditions Precedent..........................................92
13.05 Statements Required in Certificate or Opinion...............................................92
13.06 Rules by Trustee and Agents.................................................................93
13.07 No Personal Liability of Directors, Officers, Employees and Stockholders....................93
13.08 Governing Law...............................................................................93
13.09 No Adverse Interpretation of Other Agreements...............................................93
13.10 Successors..................................................................................93
13.11 Severability................................................................................94
13.12 Counterpart Originals.......................................................................94
13.13 Table of Contents, Headings, etc............................................................94
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EXHIBITS
Exhibit A-1 FORM OF NOTE
Exhibit A-2 FORM OF REGULATION S GLOBAL NOTE
Exhibit B FORM OF CERTIFICATE OF TRANSFER
Exhibit C FORM OF CERTIFICATE OF EXCHANGE
Exhibit D FORM OF CERTIFICATE OF ACQUIRING INSTITUTIONAL ACCREDITED INVESTOR
Exhibit E FORM OF NOTE GUARANTEE
Exhibit F FORM OF SUPPLEMENTAL
INDENTURE
Annex A RELATED PARTY AGREEMENTS AND TRANSACTIONS
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INDENTURE dated as of May 30, 2003 (the "AGREEMENT") between
TransMontaigne Inc., a Delaware corporation (the "COMPANY"), the subsidiary
guarantors listed on the signature pages hereto (collectively, the "GUARANTORS")
and ▇▇▇▇▇ Fargo Bank Minnesota, National Association, as trustee (the
"TRUSTEE").
The Company, the Guarantors and the Trustee agree as follows for the
benefit of each other and for the equal and ratable benefit of the Holders of
the Notes:
ARTICLE I
DEFINITIONS AND INCORPORATION
BY REFERENCE
1.1. DEFINITIONS.
"144A GLOBAL NOTE" means a global note substantially in the form of
EXHIBIT A-1 hereto bearing the Global Note Legend and the Private Placement
Legend and deposited with or on behalf of, and registered in the name of, the
Depositary or its nominee that will be issued in a denomination equal to the
outstanding principal amount of the Notes sold in reliance on Rule 144A.
"ACQUIRED INDEBTEDNESS" means (1) with respect to any Person that
becomes a Restricted Subsidiary after the Issue Date, Indebtedness of such
Person and its Subsidiaries existing at the time such Person becomes a
Restricted Subsidiary that was not incurred in connection with, or in
contemplation of, such Person becoming a Restricted Subsidiary and (2) with
respect to the Issuer or any Restricted Subsidiary, any Indebtedness of a Person
(other than the Company or a Restricted Subsidiary) existing at the time such
Person is merged with or into the Company or a Restricted Subsidiary, or
Indebtedness expressly assumed by the Company or any Restricted Subsidiary in
connection with the acquisition of an asset or assets from another Person, which
Indebtedness was not, in any case, incurred by such other Person in connection
with, or in contemplation of, such merger or acquisition.
"ADDITIONAL INTEREST" has the meaning set forth in the Registration
Rights Agreement.
"ADDITIONAL NOTES" means an unlimited principal amount of Notes (other
than the Initial Notes) issued under this Agreement in accordance with Sections
2.02 and 4.09 hereof, as part of the same series as the Initial Notes.
"AFFILIATE" of any Person means any other Person which directly or
indirectly controls or is controlled by, or is under direct or indirect common
control with, the referent Person. For purposes of Section 4.11 hereof
Affiliates shall be deemed to include, with respect to any Person, any other
Person (1) which beneficially owns or holds, directly or indirectly, 10% or more
of any class of the Voting Stock of the referent Person, (2) of which 10% or
more of the Voting Stock is beneficially owned or held, directly or indirectly,
by the referenced Person or (3) with respect to an individual, any immediate
family member of such Person. For purposes of this definition, "control" of a
Person shall mean the power to
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direct the management and policies of such Person, directly or indirectly,
whether through the ownership of voting securities, by contract or otherwise.
"AGENT" means any Registrar, Paying Agent or co-registrar.
"AGREEMENT" means this
Indenture, as amended or supplemented from time
to time.
"AMEND" means to amend, supplement, restate, amend and restate or
otherwise modify; and "AMENDMENT" shall have a correlative meaning.
"APPLICABLE PREMIUM" means with respect to a Note at any time, the
greater of (1) 1.0% of the principal amount of such Note at such time and (2)
the excess of (A) the present value at such time of the principal amount of such
Note plus any required interest payments due on such Note from the redemption
date to June 1, 2007, computed using a discount rate equal to the Treasury Rate
plus 50 basis points, over (B) the principal amount of such Note.
"APPLICABLE PROCEDURES" means, with respect to any transfer or exchange
of or for beneficial interests in any Global Note, the rules and procedures of
the Depositary, Euroclear and Clearstream that apply to such transfer or
exchange.
"ASSET" means any asset or property.
"ASSET ACQUISITION" means (1) an Investment by the Company or any
Restricted Subsidiary of the Company in any other Person if, as a result of such
Investment, such Person shall become a Restricted Subsidiary of the Company, or
shall be merged with or into the Company or any Restricted Subsidiary of the
Company, or (2) the acquisition by the Company or any Restricted Subsidiary of
the Company of all or substantially all of the assets of any other Person or any
division or line of business of any other Person.
"ASSET SALE" means any sale, issuance, conveyance, transfer, lease,
assignment or other disposition by the Company or any Restricted Subsidiary to
any Person other than the Company or any Restricted Subsidiary (including by
means of a Sale and Leaseback Transaction or a merger or consolidation)
(collectively, for purposes of this definition, a "TRANSFER"), in one
transaction or a series of related transactions, of any assets of the Company or
any of its Restricted Subsidiaries other than in the ordinary course of
business. For purposes of this definition, the term "Asset Sale" shall not
include:
(1) transfers of cash or Cash Equivalents;
(2) transfers of assets (including Equity Interests) that
are governed by, and made in accordance with Section 5.01 hereof;
(3) Permitted Investments and Restricted Payments permitted
under Section 4.07 hereof;
(4) the creation or realization of any Permitted Lien;
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(5) transfers of damaged, worn-out or obsolete equipment or
assets that, in the Company's reasonable judgment, are no longer used or
useful in the business of the Company or its Restricted Subsidiaries;
(6) the surrender or waiver of contract rights or the
settlement, release, or surrender or contract, tort or other claims of
any kind;
(7) exchanges of assets of the Company or any of its
Restricted Subsidiaries for consideration consisting of other assets
used in the business of the Company or such Restricted Subsidiary;
PROVIDED, HOWEVER, that at least 80% of the consideration received in
any such exchange shall consist of assets used or useful in the
Permitted Business and the balance of such consideration shall consist
of cash and Cash Equivalents; and PROVIDED, FURTHER, that such exchanges
of assets shall be subject to Section 4.10(a)(i) hereof; and
(8) any transfer or series of related transfers that, but
for this clause, would be Asset Sales, if after giving effect to such
transfers, the aggregate Fair Market Value of the assets transferred in
such transaction or any such series of related transactions does not
exceed $5.0 million.
"ATTRIBUTABLE INDEBTEDNESS", when used with respect to any Sale and
Leaseback Transaction, means, as at the time of determination, the present value
(discounted at a rate equivalent to the Company's then-current weighted average
cost of funds for borrowed money as at the time of determination, compounded on
a semi-annual basis) of the total obligations of the lessee for rental payments
during the remaining term of the lease included in any such Sale and Leaseback
Transaction.
"BANKRUPTCY LAW" means Title 11 of the U.S. Code, as amended, or any
similar federal or state law for the relief of debtors.
"BENEFICIAL OWNER" has the meaning assigned to such term in Rule 13d-3
and Rule 13d-5 under the Exchange Act, except that in calculating the beneficial
ownership of any particular "person" (as that term is used in Section 13(d)(3)
of the Exchange Act), such "person" shall be deemed to have beneficial ownership
of all securities that such "person" has the right to acquire by conversion or
exercise of other securities, whether such right is currently exercisable or is
exercisable only upon the occurrence of a subsequent condition. The terms
"Beneficially Owns" and "Beneficially Owned" shall have a corresponding meaning.
"BOARD OF DIRECTORS" means, with respect to any Person, the board of
directors or comparable governing body of such Person.
"BORROWING BASE" means, on any date, the sum of the following (without
duplication): (1) 100% of cash and Cash Equivalents including, without
limitation, cash being held as margin deposits in respect of commodities margin
loans irrespective of whether such cash is restricted as a result thereof, PLUS
(2) 85% of Receivables, PLUS (3) 80% of Inventory and 100% of Eligible Exchange
Contract Balances (if positive), MINUS (4) any and all outstanding Indebtedness
in respect of commodities margin loans.
"BROKER-DEALER" has the meaning set forth in the Registration Rights
Agreement.
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"BUSINESS DAY" means a day other than a Saturday, Sunday or other day on
which banking institutions in
New York are authorized or required by law to
close.
"CAPITALIZED LEASE" means a lease required to be capitalized for
financial reporting purposes in accordance with GAAP.
"CAPITALIZED LEASE OBLIGATIONS" of any Person means the obligations of
such Person to pay rent or other amounts under a Capitalized Lease, and the
amount of such obligation shall be the capitalized amount thereof determined in
accordance with GAAP.
"CAPITAL STOCK" means (1) in the case of a corporation, corporate stock,
(2) in the case of an association or business entity, any and all shares,
interests, participations, rights or other equivalents (however designated) of
corporate stock, (3) in the case of a partnership or limited liability company,
partnership or membership interests (whether general or limited), and (4) 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: (1) marketable obligations with a maturity of
360 days or less issued or directly and fully guaranteed or insured by the
United States of America or any agency or instrumentality thereof (PROVIDED that
the full faith and credit of the United States of America is pledged in support
thereof); (2) demand and time deposits and certificates of deposit or
acceptances with a maturity of 180 days or less of any financial institution
that is a member of the Federal Reserve System having combined capital and
surplus and undivided profits of not less than $500 million and is assigned at
least a "B" rating by Thomson Financial BankWatch; (3) commercial paper maturing
no more than 180 days from the date of creation thereof issued by a corporation
that is not the Company or an Affiliate of the Company, and is organized under
the laws of any State of the United States of America or the District of
Columbia and rated at least A-1 by S&P or at least P-1 by Moody's; (4)
repurchase obligations with a term of not more than ten days for underlying
securities of the types described in clause (1) above entered into with any
commercial bank meeting the specifications of clause (2) above; and (5)
investments in money market or other mutual funds substantially all of whose
assets comprise securities of the types described in clauses (1) through (4)
above.
"CHANGE OF CONTROL" means the occurrence of any of the following events:
(1) any "person" or "group" (as such terms are used in Sections 13(d) and 14(d)
of the Exchange Act), is or becomes the beneficial owner (as defined in Rules
13d-3 and 13d-5 under the Exchange Act, except that for purposes of this clause
(1) that person or group shall be deemed to have "beneficial ownership" of all
securities that any such person or group has the right to acquire, whether such
right is exercisable immediately or only after the passage of time), directly or
indirectly, of Voting Stock representing more than 40% of the voting power of
the total outstanding Voting Stock of the Company; (2) during any period of two
consecutive years, individuals who at the beginning of such period constituted
the Board of Directors (together with any new directors whose election to such
Board of Directors or whose nomination for election by the stockholders of the
Company was approved by a vote of the majority of the directors of the Company
then still in office who were either directors at the beginning of such period
or whose election or nomination for election was previously so approved) cease
for any reason to constitute a majority of the Board of Directors of the
Company; (3) (a) all or substantially all of the assets of the Company and the
Restricted Subsidiaries are sold or otherwise transferred to any Person other
than a Wholly-Owned Restricted Sub-
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sidiary or (b) the Company consolidates or merges with or into another Person or
any Person consolidates or merges with or into the Company, in either case under
this clause (3), in one transaction or a series of related transactions in which
immediately after the consummation thereof Persons owning Voting Stock
representing in the aggregate a majority of the total voting power of the Voting
Stock of the Company immediately prior to such consummation do not own Voting
Stock representing a majority of the total voting power of the Voting Stock of
the Company or the surviving or transferee Person; or (4) the Company shall
adopt a plan of liquidation or dissolution or any such plan shall be approved by
the stockholders of the Company.
"CLEARSTREAM" means Clearstream Bank S.A.
"COMPANY" means
TransMontaigne Inc., and any and all successors thereto
and not to any of its Subsidiaries.
"CONSOLIDATED AMORTIZATION EXPENSE" for any period means the
amortization expense of the Company and the Restricted Subsidiaries for such
period, determined on a consolidated basis in accordance with GAAP.
"CONSOLIDATED CASH FLOW" for any period means, without duplication, the
sum of the amounts, in each case determined on a consolidated basis in
accordance with GAAP, for such period of (1) Consolidated Net Income, PLUS (2)
in each case only to the extent (and in the same proportion) deducted in
determining Consolidated Net Income and with respect to the portion of
Consolidated Net Income attributable to any Restricted Subsidiary only if a
corresponding amount would be permitted at the date of determination to be
distributed to the Company by such Restricted Subsidiary without prior approval
(that has not been obtained), pursuant to the terms of its charter and all
agreements, instruments, judgments, decrees, orders, statutes, rules and
governmental regulations applicable to such Restricted Subsidiary or its
stockholders, (a) Consolidated Income Tax Expense, (b) Consolidated Amortization
Expense (but only to the extent not included in Consolidated Interest Expense),
(c) Consolidated Depreciation Expense, (d) Consolidated Interest Expense, and
(e) all other non-cash items reducing the Consolidated Net Income (excluding any
non-cash charge that results in an accrual of a reserve for cash charges in any
future period) for such period, in each case determined on a consolidated basis
in accordance with GAAP, MINUS (3) the aggregate amount of all non-cash items,
determined on a consolidated basis, to the extent such items increased
Consolidated Net Income for such period, MINUS (4) any gain recognized on
beginning inventory-discretionary volumes and any gain on liquidation of
inventories-minimum volumes, PLUS (5) any gain deferred on ending
inventory-discretionary volumes, any lower of cost or market write-downs on base
inventory volumes and any lower of cost or market write-downs on
inventories-minimum volumes.
"CONSOLIDATED CURRENT LIABILITIES" means, at any date, all amounts that
are or should be carried as current liabilities on the balance sheet of the
Company and its Restricted Subsidiaries determined in accordance with GAAP on a
consolidated basis, including the current portion of all Funded Debt.
"CONSOLIDATED DEPRECIATION EXPENSE" for any period means the
depreciation expense of the Company and the Restricted Subsidiaries for such
period, determined on a consolidated basis in accordance with GAAP.
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"CONSOLIDATED INCOME TAX EXPENSE" for any period means the provision for
taxes of the Company and the Restricted Subsidiaries, determined on a
consolidated basis in accordance with GAAP.
"CONSOLIDATED INTEREST COVERAGE RATIO" means the ratio of Consolidated
Cash Flow during the most recent four consecutive full fiscal quarters for which
financial statements are available (the "FOUR-QUARTER PERIOD") ending on or
prior to the date of the transaction giving rise to the need to calculate the
Consolidated Interest Coverage Ratio (the "TRANSACTION DATE") to Consolidated
Interest Expense for the Four-Quarter Period. For purposes of this definition,
Consolidated Cash Flow and Consolidated Interest Expense shall be calculated
after giving effect on a PRO FORMA basis for the period of such calculation to:
(1) the incurrence of any Indebtedness or the issuance of
any Preferred Stock of the Company or any Restricted Subsidiary (and the
application of the proceeds thereof) and any repayment of other
Indebtedness or redemption of other Preferred Stock (and the application
of the proceeds therefrom) (other than the incurrence or repayment of
Indebtedness in the ordinary course of business for working capital
purposes pursuant to any revolving credit arrangement) occurring during
the Four-Quarter Period or at any time subsequent to the last day of the
Four-Quarter Period and on or prior to the Transaction Date, as if such
incurrence, repayment, issuance or redemption, as the case may be (and
the application of the proceeds thereof), occurred on the first day of
the Four-Quarter Period; and
(2) any Asset Sale or other disposition or Asset Acquisition
(including, without limitation, any Asset Acquisition giving rise to the
need to make such calculation as a result of the Company or any
Restricted Subsidiary (including any Person who becomes a Restricted
Subsidiary as a result of such Asset Acquisition) incurring Acquired
Indebtedness and also including any Consolidated Cash Flow (including
any PRO FORMA expense and cost reductions calculated on a basis
consistent with Regulation S-X under the Exchange Act) associated with
any such Asset Acquisition) occurring during the Four-Quarter Period or
at any time subsequent to the last day of the Four-Quarter Period and on
or prior to the Transaction Date, as if such Asset Sale or Asset
Acquisition or other disposition (including the incurrence of, or
assumption or liability for, any such Indebtedness or Acquired
Indebtedness) occurred on the first day of the Four-Quarter Period.
If the Company or any Restricted Subsidiary directly or indirectly
guarantees Indebtedness of a third Person, the preceding sentence shall give
effect to the incurrence of such guaranteed Indebtedness as if the Company or
such Restricted Subsidiary had directly incurred or otherwise assumed such
guaranteed Indebtedness. For purposes of this definition, whenever PRO FORMA
effect is to be given to an Asset Acquisition, the amount of income or earnings
relating thereto and the amount of Consolidated Interest Expense associated with
Indebtedness incurred in connection therewith shall be based upon the reasonable
good faith determination of the Chief Financial Officer of the Company.
In calculating Consolidated Interest Expense for purposes of determining
the denominator (but not the numerator) of this Consolidated Interest Coverage
Ratio: (1) interest on outstanding Indebtedness determined on a fluctuating
basis as of the Transaction Date and which will continue to be so determined
thereafter shall be deemed to have accrued at a fixed rate per annum equal to
the rate of interest on this Indebtedness in effect on the Transaction Date; (2)
if interest on any Indebtedness actually incurred on the Transaction Date may
optionally be determined at an interest rate based upon a factor of a prime or
simi-
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lar rate, a eurocurrency interbank offered rate, or other rates, then the
interest rate in effect on the Transaction Date will be deemed to have been in
effect during the Four-Quarter Period; and (3) notwithstanding clause (1) or (2)
above, interest on Indebtedness determined on a fluctuating basis, to the extent
such interest is covered by agreements relating to Hedging Obligations, shall be
deemed to accrue at the rate per annum resulting after giving effect to the
operation of these agreements.
"CONSOLIDATED INTEREST EXPENSE" for any period means the sum, without
duplication, of the total interest expense of the Company and the Restricted
Subsidiaries for such period, determined on a consolidated basis in accordance
with GAAP and including without duplication, (1) imputed interest on Capitalized
Lease Obligations and Attributable Indebtedness, (2) commissions, discounts and
other fees and charges owed with respect to letters of credit securing financial
obligations, bankers' acceptance financing and receivables financings, (3) the
net costs associated with Hedging Obligations under clause (1) of the definition
of such term; PROVIDED, HOWEVER, that the calculation of such costs shall not
include the cash settlement amount paid on the early termination of Hedging
Obligations terminated prior to March 31, 2003, (4) amortization of debt
issuance costs, debt discount or premium and other financing fees and expenses,
except those incurred in connection with the Notes and the Credit Agreement and
except those amortized or written off prior to the Issue Date with respect to
Indebtedness no longer outstanding as of the Issue Date, (5) the interest
portion of any deferred payment obligations, (6) all other non-cash interest
expense, (7) capitalized interest, (8) the product of (a) all dividend payments
on any series of Disqualified Equity Interests of the Company or any Preferred
Stock of any Restricted Subsidiary (other than any such Disqualified Equity
Interests or any Preferred Stock held by the Company or a Wholly-Owned
Restricted Subsidiary), MULTIPLIED BY (b) a fraction, the numerator of which is
one and the denominator of which is one MINUS the lower of the then current
combined federal, state and local current or statutory tax rate of the Company
and the Restricted Subsidiaries, expressed as a decimal, (9) all interest
payable with respect to discontinued operations, and (10) all interest on any
Indebtedness of any other Person guaranteed by the Company or any Restricted
Subsidiary.
"CONSOLIDATED NET INCOME" for any period means the net income (or loss)
of the Company and the Restricted Subsidiaries for such period determined on a
consolidated basis in accordance with GAAP; PROVIDED that there shall be
excluded from such net income (to the extent otherwise included therein),
without duplication:
(1) the net income (or loss) of any Person (other than a
Restricted Subsidiary) in which any Person other than the Company and
the Restricted Subsidiaries has an ownership interest, except to the
extent that cash in an amount equal to any such income has actually been
received by the Company or any of its Wholly-Owned Restricted
Subsidiaries during such period;
(2) except to the extent includible in the consolidated net
income of the Company pursuant to the foregoing clause (1), the net
income (or loss) of any Person that accrued prior to the date that (a)
such Person becomes a Restricted Subsidiary or is merged into or
consolidated with the Company or any Restricted Subsidiary or (b) the
assets of such Person are acquired by the Company or any Restricted
Subsidiary;
(3) the net income of any Restricted Subsidiary during such
period to the extent that the declaration or payment of dividends or
similar distributions by such Restricted Subsidiary of that income is
not permitted by operation of the terms of its charter or any agreement,
instrument,
-8-
judgment, decree, order, statute, rule or governmental regulation
applicable to that Subsidiary during such period, except that the
Company's equity in a net loss of any such Restricted Subsidiary for
such period shall be included in determining Consolidated Net Income;
(4) for the purposes of calculating the Restricted Payments
Basket only, in the case of a successor to the Company by consolidation,
merger or transfer of its assets, any income (or loss) of the successor
prior to such merger, consolidation or transfer of assets;
(5) for purposes of calculating the Restricted Payments
Basket only, (y) the sum of (i) any gain recognized on beginning
inventory-discretionary volumes, PLUS (ii) any net margin recognized on
sale of inventory-minimum volumes, MINUS (iii) any gain deferred on
ending inventory-discretionary volumes, MINUS (iv) any lower of cost or
market write-downs on base inventory volumes, MINUS (v) any lower of
cost or market write-downs on inventories-minimum volumes, PLUS (z) the
product of (y) and the Company's combined federal and state income tax
rate;
(6) other than for purposes of calculating the Restricted
Payments Basket, any gain (or loss), together with any related
provisions for taxes on any such gain (or the tax effect of any such
loss), realized during such period by the Company or any Restricted
Subsidiary upon (a) the acquisition of any securities, or the
extinguishment of any Indebtedness, of the Company or any Restricted
Subsidiary or (b) any Asset Sale by the Company or any Restricted
Subsidiary; and
(7) other than for purposes of calculating the Restricted
Payments Basket, any extraordinary gain (or extraordinary loss),
together with any related provision for taxes on any such extraordinary
gain (or the tax effect of any such extraordinary loss), realized by the
Company or any Restricted Subsidiary during such period.
In addition any return of capital with respect to an Investment that
increased the Restricted Payments Basket pursuant to Section 4.07(a)(iii)(D)
hereof or decreased the amount of Investments outstanding pursuant to clause
(12) of the definition of "Permitted Investments" shall be excluded from
Consolidated Net Income for purposes of calculating the Restricted Payments
Basket.
"CONSOLIDATED NET TANGIBLE ASSETS" means, at any date, the total of: (1)
the total assets of the Company and its Restricted Subsidiaries determined in
accordance with GAAP on a consolidated basis; MINUS (2) Consolidated Current
Liabilities; MINUS (3) all other liabilities of the Company and its Restricted
Subsidiaries determined in accordance with GAAP on a consolidated basis other
than liabilities for Funded Debt; MINUS (4) the amount of intangible assets
carried on the balance sheet of the Company and its Restricted Subsidiaries
determined in accordance with GAAP on a consolidated basis, including goodwill,
patents, patent applications, copyrights, trademarks, trade names, research and
development expense, organizational expense, annualized debt discount and
expense, deferred financing charges and debt acquisition costs; MINUS (5) the
amount at which any minority interest in a Restricted Subsidiary appears as a
liability on the consolidated balance sheet of the Company and its Restricted
Subsidiaries.
"CONSOLIDATED NET WORTH" means, with respect to any Person as of any
date, the consolidated stockholders' equity of such Person, determined on a
consolidated basis in accordance with GAAP, less (without duplication) (1) any
amounts thereof attributable to Disqualified Equity Interests of such Person
-9-
or its Subsidiaries or any amount attributable to Unrestricted Subsidiaries and
(2) 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 twelve months after the acquisition of such business) subsequent to the
Issue Date in the book value of any asset owned by such Person or a Subsidiary
of such Person.
"CORPORATE TRUST OFFICE OF THE TRUSTEE" shall be at the address of the
Trustee specified in Section 13.02 hereof or such other address as to which the
Trustee may give notice to the Company.
"COVERAGE RATIO EXCEPTION" has the meaning set forth in Section 4.09(a)
hereof.
"CREDIT AGREEMENT" means the Credit Agreement dated as of February 28,
2003 by and among the Company, as Borrower, UBS AG, Stamford Branch, as
administrative agent and collateral agent, UBS Warburg LLC, as lead arranger and
book manager, and the other lenders named therein, including any notes,
guarantees, collateral and security documents, instruments and agreements
executed in connection therewith (including Hedging Obligations related to the
Indebtedness incurred thereunder), and in each case as amended or refinanced
from time to time, including any agreement extending the maturity of,
refinancing, replacing or otherwise restructuring (including increasing the
amount of borrowings or other Indebtedness outstanding or available to be
borrowed thereunder) all or any portion of the Indebtedness under such
agreement, and any successor or replacement agreement or agreements with the
same or any other agents, creditor, lender or group of creditors or lenders.
"CUSTODIAN" means any receiver, trustee, assignee, liquidator or similar
official under any Bankruptcy Law.
"DEFAULT" means (1) any Event of Default or (2) any event, act or
condition that, after notice or the passage of time or both, would be an Event
of Default.
"DEFINITIVE NOTE" means a certificated Note registered in the name of
the Holder thereof and issued in accordance with Section 2.06 hereof,
substantially in the form of EXHIBIT A-1 hereto except that such Note shall not
bear the Global Note Legend and shall not have the "Schedule of Exchanges of
Interests in the Global Note" attached thereto.
"DEPOSITARY" means, with respect to the Notes issuable or issued in
whole or in part in global form, the Person specified in Section 2.03 hereof as
the Depositary with respect to the Notes, and any and all successors thereto
appointed as depositary hereunder and having become such pursuant to the
applicable provision of this Agreement.
"DEPOSITARY CUSTODIAN" means the Trustee, as custodian for the
Depositary with respect to the Notes in global form, or any successor entity
thereto.
"DESIGNATED SENIOR DEBT" means (1) Senior Debt Indebtedness under or in
respect of the Credit Agreement and (2) any other Indebtedness constituting
Senior Debt which, at the time of determination, has an aggregate principal
amount of at least $25.0 million and is specifically designated in the
instrument evidencing such Senior Debt as "Designated Senior Debt."
"DESIGNATION" has the meaning specified in Section 4.16 hereof.
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"DESIGNATION AMOUNT" has the meaning specified in Section 4.16 hereof.
"DISQUALIFIED EQUITY INTERESTS" of any Person means any Equity Interests
of such Person that, by its terms, or by the terms of any related agreement or
of any security into which it is convertible, puttable or exchangeable, is, or
upon the happening of any event or the passage of time would be, required to be
redeemed by such Person, whether or not at the option of the holder thereof, or
matures or is mandatorily redeemable, pursuant to a sinking fund obligation or
otherwise, in whole or in part, on or prior to the date which is 91 days after
the final maturity date of the Notes; PROVIDED, HOWEVER, that any class of
Equity Interests of such Person that, by its terms, authorizes such Person to
satisfy in full its obligations with respect to the payment of dividends or upon
maturity, redemption (pursuant to a sinking fund or otherwise) or repurchase
thereof or otherwise by the delivery of Equity Interests that is not
Disqualified Equity Interests, and that is not convertible, puttable or
exchangeable for Disqualified Equity Interests or Indebtedness, will not be
deemed to be Disqualified Equity Interests so long as such Person satisfies its
obligations with respect thereto solely by the delivery of Equity Interests that
is not Disqualified Equity Interests; PROVIDED, FURTHER, HOWEVER, that any
Equity Interests that would not constitute Disqualified Equity Interests but for
provisions thereof giving holders thereof (or the holders of any security into
or for which such Equity Interests is convertible, exchangeable or exercisable)
the right to require the Company to redeem such Equity Interests upon the
occurrence of a change in control occurring prior to the final maturity date of
the Notes shall not constitute Disqualified Equity Interests if the change in
control provisions applicable to such Equity Interests are no more favorable to
such holders than the provisions described under Section 4.15 hereof and such
Equity Interests specifically provides that the Company will not redeem any such
Equity Interests pursuant to such provisions prior to the Company's purchase of
the Notes as required pursuant to the provisions described under Section 4.15
hereof.
"ELIGIBLE EXCHANGE CONTRACT BALANCES" means, at any date, the amount of
the balance, determined in accordance with prices set forth in the applicable
exchange contracts, based on current value on a ▇▇▇▇-to-market basis, of any
rights of the Company and its Restricted Subsidiaries to receive petroleum
products, money or other value arising from the trading, lending, borrowing or
exchange of petroleum products.
"EQUITY INTERESTS" of any Person means (1) any and all shares or other
equity interests (including common stock, preferred stock, limited liability
company interests and partnership interests) in such Person and (2) all rights
to purchase, warrants or options (whether or not currently exercisable),
participations or other equivalents of or interests in (however designated) such
shares or other interests in such Person.
"EUROCLEAR" means ▇▇▇▇▇▇ Guaranty Trust Company of
New York, Brussels
office, as operator of the Euroclear system.
"EXCHANGE ACT" means the U.S. Securities Exchange Act of 1934, as
amended.
"EXCHANGE NOTES" means the Series B Notes (as defined in the
Registration Rights Agreement) issued in the Exchange Offer pursuant to
Section 2.06(f) hereof.
"EXCHANGE OFFER" has the meaning set forth in the Registration Rights
Agreement.
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"EXCHANGE OFFER REGISTRATION STATEMENT" has the meaning set forth in the
Registration Rights Agreement.
"FAIR MARKET VALUE" means, with respect to any asset, the price (after
taking into account any liabilities relating to such assets) that would be
negotiated in an arm's-length transaction for cash between a willing seller and
a willing and able buyer, neither of which is under any compulsion to complete
the transaction, as such price is determined in good faith by the Board of
Directors of the Company or a duly authorized committee thereof, as evidenced by
a resolution of such Board or committee.
"FOREIGN SUBSIDIARY" means any Subsidiary of the Company which (i) is
not organized under the laws of (x) the United States or any state thereof or
(y) the District of Columbia and (ii) conducts substantially all of its business
operations outside the United States of America.
"FOREIGN TRADE REGULATIONS" means (a) any act that prohibits or
restricts, or empowers the President or any executive agency of the United
States of America to prohibit or restrict, exports to or financial transactions
with any foreign country or foreign national, (b) the regulations with respect
to certain prohibited foreign trade transactions set forth at 22 C.F.R. Parts
120-130 and 31 C.F.R. Part 500 and (c) any order, regulation, ruling,
interpretation, direction, instruction or notice relating to any of the
foregoing.
"FUNDED DEBT" means all Indebtedness of the Company or other specified
Person which is payable more than one year from the date of creation thereof and
shall include (a) current maturities of such Indebtedness and (b) all
Indebtedness consisting of reimbursement obligations with respect to letters of
credit other than letters of credit issued to finance inventory purchases or to
secure other debt appearing on the balance sheet of the obligor.
"GAAP" means generally accepted accounting principles set forth in the
opinions and pronouncements of the Accounting Principles Board of the American
Institute of Certified Public Accountants and statements and pronouncements of
the Financial Accounting Standards Board or in such other statements by such
other entity as may be approved by a significant segment of the accounting
profession of the United States, as in effect on the Issue Date.
"GLOBAL NOTE LEGEND" means the legend set forth in Section 2.06(g)(ii),
which is required to be placed on all Global Notes issued under this Agreement.
"GLOBAL NOTES" means, individually and collectively, each of the
Restricted Global Notes and the Unrestricted Global Notes, substantially in the
form of EXHIBIT A hereto issued in accordance with Section 2.01, 2.02,
2.06(b)(iv), 2.06(d)(ii) or 2.06(f) hereof.
"GUARANTEE" means a direct or indirect guarantee by any Person of any
Indebtedness of any other Person and includes any obligation, direct or
indirect, contingent or otherwise, of such Person: (1) to purchase or pay (or
advance or supply funds for the purchase or payment of) Indebtedness of such
other Person (whether arising by virtue of partnership arrangements, or by
agreements to keep-well, to purchase assets, goods, securities or services
(unless such purchase arrangements are on arm's-length terms and are entered
into in the ordinary course of business), to take-or-pay, or to maintain
financial statement conditions or otherwise); or (2) entered into for purposes
of assuring in any other manner the obligee of such
-12-
Indebtedness of the payment thereof or to protect such obligee against loss in
respect thereof (in whole or in part). "GUARANTEE," when used as a verb, and
"GUARANTEED" have correlative meanings.
"GUARANTOR SENIOR DEBT" means, with respect to any Guarantor, the
principal of, premium, if any, and interest (including any interest accruing
subsequent to the filing of a petition of bankruptcy at the rate provided for in
the documentation with respect thereto, whether or not such interest is an
allowed claim under applicable law) on any Indebtedness of such Guarantor,
whether outstanding on the Issue Date or thereafter created, incurred or
assumed, unless, in the case of any particular Indebtedness, the instrument
creating or evidencing the same or pursuant to which the same is outstanding
expressly provides that such Indebtedness shall not be senior in right of
payment to the Notes.
Without limiting the generality of the foregoing, "Guarantor Senior
Debt" shall also include the principal of, premium, if any, interest (including
any interest accruing subsequent to the filing of a petition of bankruptcy at
the rate provided for in the documentation with respect thereto, whether or not
such interest is an allowed claim under applicable law) on, and all other
amounts owing in respect of: (1) all monetary obligations of every nature of
such Guarantor under, or with respect to, the Credit Agreement, including,
without limitation, obligations to pay principal and interest, reimbursement
obligations under letters of credit, fees, expenses and indemnities (and
guarantees thereof); and (2) all Hedging Obligations in respect of the Credit
Agreement; in each case whether outstanding on the Issue Date or thereafter
incurred.
Notwithstanding the foregoing, "Guarantor Senior Debt" shall not
include: (1) any Indebtedness of such Guarantor to the Company or any of its
Subsidiaries; (2) Indebtedness to, or guaranteed on behalf of, any director,
officer or employee of the Company or any of its Subsidiaries (including,
without limitation, amounts owed for compensation); (3) obligations to trade
creditors and other amounts incurred (but not under the Credit Agreement) in
connection with obtaining goods, materials or services; (4) Indebtedness
represented by Disqualified Equity Interests; (5) any liability for taxes owed
or owing by such Guarantor; (6) that portion of any Indebtedness incurred in
violation of Section 4.09 hereof (but, as to any such obligation, no such
violation shall be deemed to exist for purposes of this clause (6) if the
holder(s) of such obligation or their representative shall have received an
officers' certificate of such Guarantor to the effect that the incurrence of
such Indebtedness does not (or, in the case of revolving credit indebtedness,
that the incurrence of the entire committed amount thereof at the date on which
the initial borrowing thereunder is made would not) violate such provisions of
this Agreement); (7) Indebtedness which, when incurred and without respect to
any election under Section 1111(b) of ▇▇▇▇▇ ▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇ Code, is without
recourse to such Guarantor; and (8) any Indebtedness which is, by its express
terms, subordinated in right of payment to any other Indebtedness of such
Guarantor.
"GUARANTORS" means each Restricted Subsidiary of the Company on the
Issue Date, and each other Person that is required to become a Guarantor by the
terms of this Agreement after the Issue Date, in each case, until such Person is
released from its Note Guarantee.
"HEDGING OBLIGATIONS" of any Person means the obligations of such Person
pursuant to (1) any interest rate swap agreement, interest rate collar agreement
or other similar agreement or arrangement designed to protect such Person
against fluctuations in interest rates or (2) any forward contract, commodity
swap agreement, commodity option agreement or other similar agreement.
-13-
"HOLDER" means any registered holder, from time to time, of the Notes.
"IAI GLOBAL NOTE" means the global Note substantially in the form of
EXHIBIT A-1 hereto bearing the Global Note Legend and the Private Placement
Legend and deposited with or on behalf of and registered in the name of the
Depositary or its nominee that will be issued in a denomination equal to the
outstanding principal amount of the Notes sold to Institutional Accredited
Investors.
"INCUR" means, with respect to any Indebtedness or Obligation, incur,
create, issue, assume, guarantee or otherwise become directly or, indirectly
liable, contingently or otherwise, with respect to such Indebtedness or
Obligation; PROVIDED that (1) the Indebtedness of a Person existing at the time
such Person became a Restricted Subsidiary shall be deemed to have been incurred
at such time by such Restricted Subsidiary and (2) neither the accrual of
interest nor the accretion of original issue discount shall be deemed to be an
incurrence of Indebtedness.
"INDEBTEDNESS" of any Person at any date means, without duplication: (1)
all liabilities, contingent or otherwise, of such Person for borrowed money
(whether or not the recourse of the lender is to the whole of the assets of such
Person or only to a portion thereof); (2) all obligations of such Person
evidenced by bonds, debentures, notes or other similar instruments; (3) all
obligations of such Person in respect of letters of credit or other similar
instruments (or reimbursement obligations with respect thereto); (4) all
obligations of such Person to pay the deferred and unpaid purchase price of
property or services, except trade payables and accrued expenses incurred by
such Person in the ordinary course of business in connection with obtaining
goods, materials or services; (5) the maximum fixed redemption or repurchase
price of all Disqualified Equity Interests of such Person; (6) all Capitalized
Lease Obligations of such Person; (7) all Indebtedness of others secured by a
Lien on any asset of such Person, whether or not such Indebtedness is assumed by
such Person; (8) all Indebtedness of others guaranteed by such Person to the
extent of such guarantee; PROVIDED that Indebtedness of the Company or its
Subsidiaries that is guaranteed by the Company or the Company's Subsidiaries
shall only be counted once in the calculation of the amount of Indebtedness of
the Company and its Subsidiaries on a consolidated basis; (9) all Attributable
Indebtedness; (10) to the extent not otherwise included in this definition,
Hedging Obligations of such Person; and (11) all obligations of such Person
under conditional sale or other title retention agreements relating to assets
purchased by such Person.
Any Indebtedness which is incurred at a discount to the principal amount
at maturity thereof shall be deemed to have been incurred at the full principal
amount at maturity thereof. The amount of Indebtedness of any Person at any date
shall be the outstanding balance at such date of all unconditional obligations
as described above, the maximum liability of such Person for any such contingent
obligations at such date and, in the case of clause (7), the lesser of (a) the
Fair Market Value of any asset subject to a Lien securing the Indebtedness of
others on the date that the Lien attaches and (b) the amount of the Indebtedness
secured. For purposes of clause (5), the "maximum fixed redemption or repurchase
price" of any Disqualified Equity Interests that do not have a fixed redemption
or repurchase price shall be calculated in accordance with the terms of such
Disqualified Equity Interests as if such Disqualified Equity Interests were
redeemed or repurchased on any date on which an amount of Indebtedness
outstanding shall be required to be determined pursuant to this Agreement.
"INDEPENDENT DIRECTOR" means a director of the Company who (1) is
independent with respect to the transaction at issue; (2) does not have any
material financial interest in the Company or any of its Af-
-14-
filiates (other than as a result of holding securities of the Company); and (3)
has not and whose Affiliates or affiliated firm has not, at any time during the
twelve months prior to the taking of any action hereunder, directly or
indirectly, received, or entered into any understanding or agreement to receive,
any compensation, payment or other benefit, of any type or form, from the
Company or any of its Affiliates, other than customary directors' fees, stock
option grants or other compensation for serving on the Board of Directors of the
Company or any Affiliate and reimbursement of out-of-pocket expenses for
attendance at the Company's or Affiliate's board and board committee meetings.
"INDEPENDENT FINANCIAL ADVISOR" means an accounting, appraisal or
investment banking firm of nationally recognized standing that is, in the
reasonable judgment of the Company's Board of Directors, qualified to perform
the task for which it has been engaged and disinterested and independent with
respect to the Company and its Affiliates.
"INDIRECT PARTICIPANT" means a Person who holds a beneficial interest in
a Global Note through a Participant.
"INITIAL NOTES" means the first $200.0 million aggregate principal
amount of 9 1/8% Senior Subordinated Notes due 2010 issued under this Agreement
on the Issue Date.
"INSTITUTIONAL ACCREDITED INVESTOR" means an institution that is an
"accredited investor" as defined in Rule 501(a)(1), (2), (3) or (7) under the
Securities Act, who are not also QIBs.
"INTEREST" means, with respect to the Notes, interest and Additional
Interest, if any, on the Notes.
"INVENTORY" means, at any date, the Fair Market Value of all inventory
of refined petroleum products owned by the Company or any of its Restricted
Subsidiaries (including discretionary and minimum volumes), and which meets all
of the following requirements: (1) is in good saleable condition, is not
deteriorating in quality and is not obsolete; (2) is physically located within
the United States of America; and (3) has not been placed on consignment.
"INVESTMENTS" of any Person means: (1) all direct or indirect
investments by such Person in any other Person in the form of loans, advances or
capital contributions or other credit extensions constituting Indebtedness of
such other Person, and any guarantee of Indebtedness of any other Person; (2)
all purchases (or other acquisitions for consideration) by such Person of
Indebtedness, Equity Interests or other securities of any other Person; (3) all
other items that would be classified as investments (including purchases of
assets outside the ordinary course of business) on a balance sheet of such
Person prepared in accordance with GAAP; and (4) the Designation of any
Subsidiary as an Unrestricted Subsidiary.
Except as otherwise expressly specified in this definition, the amount
of any Investment (other than an Investment made in cash) shall be the Fair
Market Value thereof on the date such Investment is made. The amount of
Investment pursuant to clause (4) shall be the Designation Amount determined in
accordance with Section 4.16 hereof. If the Company or any Subsidiary sells or
otherwise disposes of any Equity Interests of any direct or indirect Subsidiary
such that, after giving effect to any such sale or disposition, such Person is
no longer a Subsidiary, the Company shall be deemed to have made an Investment
on the date of any such sale or other disposition equal to the Fair Market Value
of the Equity Interests of and all other Investments in such Subsidiary not sold
or disposed of, which amount shall be
-15-
determined by the Board of Directors. The acquisition by the Company or any
Restricted Subsidiary of a Person that holds an Investment in a third Person
shall be deemed to be an Investment by the Company or such Restricted Subsidiary
in the third Person in an amount equal to the Fair Market Value of the
Investment held by the acquired Person in the third Person. Notwithstanding the
foregoing, purchases or redemptions of Equity Interests of the Company shall be
deemed not to be Investments.
"ISSUE DATE" means the date on which the Initial Notes are originally
issued, May 30, 2003.
"JOINT VENTURE" means a corporation, partnership or other entity engaged
in one or more of the Permitted Businesses in which the Company or its
Restricted Subsidiaries does not have control but owns, directly or indirectly,
at least 10% of the Equity Interests.
"LEGAL HOLIDAY" means a Saturday, a Sunday or a day on which banking
institutions in The City of
New York or at a place of payment are authorized by
law, regulation or executive order to remain closed. If a payment date is a
Legal Holiday at a place of payment, payment may be made at that place on the
next succeeding day that is not a Legal Holiday, and no interest shall accrue on
such payment for the intervening period.
"LETTER OF TRANSMITTAL" means the letter of transmittal to be prepared
by the Company and sent to all Holders of the Notes for use by such Holders in
connection with the Exchange Offer.
"LIEN" means, with respect to any asset, any mortgage, deed of trust,
lien (statutory or other), pledge, lease, easement, restriction, covenant,
charge, security interest or other encumbrance of any kind or nature 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, any option or other agreement to
sell, and any filing of, or agreement to give, any financing statement under the
Uniform Commercial Code (or equivalent statutes) of any jurisdiction (other than
cautionary filings in respect of operating leases).
"MOODY'S" means ▇▇▇▇▇'▇ Investors Service, Inc., and its successors.
"NET AVAILABLE PROCEEDS" means, with respect to any Asset Sale, the
proceeds thereof in the form of cash or Cash Equivalents, net of (1) brokerage
commissions and other fees and expenses (including fees and expenses of legal
counsel, accountants and investment banks) of such Asset Sale; (2) provisions
for taxes payable as a result of such Asset Sale (after taking into account any
available tax credits or deductions and any tax sharing arrangements); (3)
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 or having a Lien thereon; (4) payments of unassumed liabilities (not
constituting Indebtedness) relating to the assets sold at the time of, or within
30 days after the date of, such Asset Sale; and (5) appropriate amounts to be
provided by the Company or any Restricted Subsidiary, as the case may be, as a
reserve required in accordance with GAAP against any liabilities associated with
such Asset Sale and retained by the Company or any Restricted Subsidiary, as the
case may be, after such Asset Sale, including pensions and other postemployment
benefit liabilities, liabilities related to environmental matters and
liabilities under any indemnification obligations associated with such Asset
Sale, all as reflected in an Officers' Certificate delivered to the Trustee;
PROVIDED, HOWEVER, that any amounts remaining after adjustments, revaluations or
liquidations of such reserves shall constitute Net Available Proceeds.
-16-
"NON-RECOURSE DEBT" means Indebtedness of an Unrestricted Subsidiary:
(1) as to which neither the Company nor any Restricted
Subsidiary (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; and
(2) no default with respect to which (including any rights
that the holders thereof may have to take enforcement action against an
Unrestricted Subsidiary) would permit upon notice, lapse of time or both
any holder of any other Indebtedness (other than the Notes) of the
Company or any Restricted Subsidiary to declare a default on the other
Indebtedness or cause the payment thereof to be accelerated or payable
prior to its stated maturity.
"NON-U.S. PERSON" means a Person who is not a U.S. Person.
"NOTE GUARANTEE" means the Guarantee by each Guarantor of the Company's
payment obligations under this Agreement and on the Notes, executed pursuant to
the provisions of this Agreement.
"NOTES" means the Initial Notes, the Exchange Notes and the Additional
Notes, if any, permitted to be issued in accordance with this Agreement.
"OBLIGATIONS" means any principal, interest, penalties, fees,
indemnifications, reimbursements, costs, expenses, damages and other liabilities
payable under the documentation governing any Indebtedness.
"OFFERING" means the offering of the Notes by the Company.
"OFFICER" means any of the following of the Company: the Chairman of the
Board of Directors, the Chief Executive Officer, the Chief Financial Officer,
the President, any Vice President, the Treasurer or the Secretary.
"OFFICERS' CERTIFICATE" means a certificate signed by two Officers.
"PARI PASSU INDEBTEDNESS" means any Indebtedness of the Company or any
Guarantor that ranks PARI PASSU as to payment with the Notes or the Note
Guarantees, as applicable.
"PARTICIPANT" means, with respect to the Depositary, Euroclear or
Clearstream, a Person who has an account with the Depositary, Euroclear or
Clearstream, respectively (and, with respect to DTC, shall include Euroclear and
Clearstream).
"PERMITTED BUSINESS" means the businesses and joint ventures engaged in
by the Company and its Subsidiaries on the Issue Date as described in this
offering memorandum and businesses and joint ventures that are reasonably
related thereto or reasonable extensions thereof.
-17-
"PERMITTED INVESTMENTS" means:
(1) Investments by the Company or any Restricted Subsidiary
in (a) any Restricted Subsidiary or (b) in any Person that is or will
become immediately after such Investment a Restricted Subsidiary or that
will merge or consolidate into the Company or a Restricted Subsidiary;
(2) Investments in the Company by any Restricted Subsidiary;
(3) loans and advances made in the ordinary course of
business to directors, employees and officers of the Company and the
Restricted Subsidiaries for bona fide business purposes not in excess of
$3.0 million at any one time outstanding;
(4) Hedging Obligations incurred pursuant to
Section 4.09(b)(iv) hereof;
(5) cash or Cash Equivalents;
(6) receivables owing to the Company or any Restricted
Subsidiary if created or acquired in the ordinary course of business and
payable or dischargeable in accordance with customary trade terms;
PROVIDED, HOWEVER, that such trade terms may include such concessionary
trade terms as the Company or any such Restricted Subsidiary deems
reasonable under the circumstances;
(7) Investments in securities of trade creditors or
customers received pursuant to any plan of reorganization or similar
arrangement upon the bankruptcy or insolvency of such trade creditors or
customers;
(8) Investments made by the Company or any Restricted
Subsidiary as a result of consideration received in connection with an
Asset Sale made in compliance with Section 4.10 hereof;
(9) lease, utility and other similar deposits in the
ordinary course of business;
(10) Investments made by the Company or a Restricted
Subsidiary for consideration consisting only of Qualified Equity
Interests of the Company or the proceeds thereof; PROVIDED, that such
proceeds do not increase the Restricted Payments Basket;
(11) stock, obligations or securities received in settlement
of debts created in the ordinary course of business and owing to the
Company or any Restricted Subsidiary or in satisfaction of judgments;
(12) Investments made by the Company or a Restricted
Subsidiary in a Permitted Business reasonably related to the businesses
currently operated by the Company or such Restricted Subsidiary, not to
exceed $25.0 million at any one time outstanding; and
(13) other Investments in an aggregate amount not to exceed
$15.0 million at any one time outstanding (with each Investment being
valued as of the date made and without regard to subsequent changes in
value).
-18-
The amount of Investments outstanding at any time pursuant to clause
(12) above shall be deemed to be reduced: (a) upon the disposition or repayment
of or return on any Investment made pursuant to clause (12) above, by an amount
equal to the return of capital with respect to such Investment to the Company or
any Restricted Subsidiary (to the extent not included in the computation of
Consolidated Net Income), less the cost of the disposition of such Investment
and net of taxes; and (b) upon a Redesignation of an Unrestricted Subsidiary as
a Restricted Subsidiary, by an amount equal to the lesser of (x) the Fair Market
Value of the Company's proportionate interest in such Subsidiary immediately
following such Redesignation, and (y) the aggregate amount of Investments in
such Subsidiary that increased (and did not previously decrease) the amount of
Investments outstanding pursuant to clause (12) above.
"PERMITTED JUNIOR SECURITIES" means:
(1) Equity Interests in the Company or any Guarantor; or
(2) debt securities that are subordinated to (a) all Senior
Debt and Guarantor Senior Debt and (b) any debt securities issued in
exchange for Senior Debt to substantially the same extent as, or to a
greater extent than, the Notes and the Note Guarantees are subordinated
to Senior Debt and Guarantor Senior Debt under this Agreement.
"PERMITTED LIENS" means the following types of Liens:
(1) Liens for taxes, assessments or governmental charges or
claims either (a) not delinquent or (b) contested in good faith by
appropriate proceedings and as to which the Company or the Restricted
Subsidiaries shall have set aside on its books such reserves as may be
required pursuant to GAAP;
(2) statutory, contractual or common law Liens of landlords
and Liens of carriers, warehousemen, mechanics, suppliers, materialmen,
repairmen and other Liens imposed by law incurred in the ordinary course
of business for sums not yet delinquent for a period of more than 30
days or are being contested in good faith, and as to which the Company
or the Restricted Subsidiaries shall have set aside on its books such
reserves as may be required pursuant to GAAP;
(3) Liens incurred or deposits made in the ordinary course
of business in connection with workers' compensation, unemployment
insurance and other types of social security, or to secure the
performance of tenders, statutory obligations, surety and appeal bonds,
bids, leases, government contracts, performance and return-of-money
bonds and other similar obligations (exclusive of obligations for the
payment of borrowed money);
(4) Liens upon specific items of inventory or other goods
and proceeds of any Person securing such Person's obligations in respect
of bankers' acceptances issued or created for the account of such Person
to facilitate the purchase, shipment or storage of such inventory or
other goods;
(5) judgment Liens not giving rise to a Default so long as
such Liens are adequately bonded and any appropriate legal proceedings
which may have been duly initiated for the review
-19-
of such judgment have not been finally terminated or the period within
which the proceedings may be initiated has not expired;
(6) easements, rights-of-way, zoning restrictions and other
similar charges, restrictions or encumbrances in respect of real
property or immaterial imperfections of title which do not, in the
aggregate, impair in any material respect the ordinary conduct of the
business of the Company and the Restricted Subsidiaries taken as a
whole;
(7) Liens securing reimbursement obligations with respect to
commercial letters of credit which encumber documents and other assets
relating to such letters of credit and products and proceeds thereof;
(8) Liens encumbering deposits made to secure obligations
arising from statutory, regulatory, contractual or warranty requirements
of the Company or any Restricted Subsidiary, including rights of offset
and setoff;
(9) bankers' Liens, rights of setoff and other similar Liens
existing solely with respect to cash and Cash Equivalents on deposit in
one or more accounts maintained by the Company or any Restricted
Subsidiary, in each case granted in the ordinary course of business in
favor of the bank or banks with which such accounts are maintained,
securing amounts owing to such bank with respect to cash management and
operating account arrangements, including those involving pooled
accounts and netting arrangements; PROVIDED that in no case shall any
such Liens secure (either directly or indirectly) the repayment of any
Indebtedness;
(10) leases or subleases granted to others that do not
materially interfere with the ordinary course of business of the Company
or any Restricted Subsidiary;
(11) Liens arising from filing Uniform Commercial Code
financing statements regarding leases;
(12) Liens securing all of the Notes and Liens securing any
Note Guarantee;
(13) Liens securing Senior Debt or Guarantor Senior Debt;
(14) Liens existing on the Issue Date;
(15) Liens in favor of the Company or a Guarantor;
(16) Liens securing Indebtedness under the Credit Agreement;
(17) Liens securing Purchase Money Indebtedness;
(18) Liens securing Acquired Indebtedness permitted to be
incurred under this Agreement; PROVIDED that the Liens do not extend to
assets not subject to such Lien at the time of acquisition (other than
improvements thereon) and are no more favorable to the lienholders than
those securing such Acquired Indebtedness prior to the incurrence of
such Acquired Indebtedness by the Company or a Restricted Subsidiary;
-20-
(19) Liens on assets of a Person existing at the time such
Person is acquired or merged with or into or consolidated with the
Company or any such Restricted Subsidiary (and not created in
anticipation or contemplation thereof);
(20) Liens to secure Refinancing Indebtedness of Indebtedness
secured by Liens referred to in the foregoing clauses (13), (14), (16),
(17), (18), (19), (21) and (22); PROVIDED that in each case such Liens
do not extend to any additional assets (other than improvements thereon
and replacements thereof);
(21) Liens (a) to secure Attributable Indebtedness; provided
that any such Lien shall not extend to or cover any assets of the
Company or any Restricted Subsidiary other than the assets which are the
subject of the Sale and Leaseback Transaction in which the Attributable
Indebtedness is incurred or (b) arising in connection with Capitalized
Leases;
(22) Liens securing Indebtedness in respect of commodities
margin loans permitted under Section 4.09(b)(xi);
(23) Restrictions under Foreign Trade Regulations on the
transfer or licensing of assets of the Company or its Restricted
Subsidiaries; and
(24) Liens incurred in the ordinary course of business of the
Company or any Restricted Subsidiary with respect to obligations (other
than Indebtedness) that do not in the aggregate exceed $10.0 million at
any one time outstanding.
"PERSON" means any individual, corporation, partnership, limited
liability company, joint venture, incorporated or unincorporated association,
joint-stock company, trust, unincorporated organization or government or other
agency or political subdivision thereof or other entity of any kind.
"PLAN OF LIQUIDATION" with respect to any Person, means a plan that
provides for, contemplates or the effectuation of which is preceded or
accompanied by (whether or not substantially contemporaneously, in phases or
otherwise): (1) the sale, lease, conveyance or other disposition of all or
substantially all of the assets of such Person otherwise than as an entirety or
substantially as an entirety; and (2) the distribution of all or substantially
all of the proceeds of such sale, lease, conveyance or other disposition of all
or substantially all of the remaining assets of such Person to holders of Equity
Interests of such Person.
"PREFERRED STOCK" means, with respect to any Person, any and all
preferred or preference stock or other equity interests (however designated) of
such Person whether now outstanding or issued after the Issue Date.
"PRINCIPAL" means, with respect to the Notes, the principal of, and
premium, if any, on the Notes.
"PRIVATE PLACEMENT LEGEND" means the legend set forth in Section
2.06(g)(i) to be placed on all Notes issued under this Agreement except where
otherwise permitted by the provisions of this Agreement.
-21-
"PURCHASE MONEY INDEBTEDNESS" means Indebtedness, including Capitalized
Lease Obligations, of the Company or any Restricted Subsidiary incurred for the
purpose of financing all or any part of the purchase price of property, plant or
equipment used in the business of the Company or any Restricted Subsidiary or
the cost of installation, construction or improvement thereof; PROVIDED,
HOWEVER, that (1) the amount of such Indebtedness shall not exceed such purchase
price or cost, (2) such Indebtedness shall not be secured by any asset other
than the specified asset being financed or, in the case of real property or
fixtures, including additions and improvements, the real property to which such
asset is attached and (3) such Indebtedness shall be incurred within 180 days
after such acquisition of such asset by the Company or such Restricted
Subsidiary or such installation, construction or improvement.
"QUALIFIED EQUITY INTERESTS" means Equity Interests of the Company other
than Disqualified Equity Interests; PROVIDED that such Equity Interests shall
not be deemed Qualified Equity Interests to the extent sold or owed to a
Subsidiary of the Company or financed, directly or indirectly, using funds (1)
borrowed from the Company or any Subsidiary of the Company until and to the
extent such borrowing is repaid or (2) contributed, extended, guaranteed or
advanced by the Company or any Subsidiary of the Company (including, without
limitation, in respect of any employee stock ownership or benefit plan).
"QUALIFIED EQUITY OFFERING" means the issuance and sale of Qualified
Equity Interests of the Company to any Person other than a Subsidiary of the
Company.
"QIB" means a "qualified institutional buyer" as defined in Rule 144A.
"RECEIVABLES" means, at any date, the aggregate amount (without
duplication) of all accounts receivable carried on the books of the Company and
its Restricted Subsidiaries in accordance with GAAP on a consolidated basis
arising in the ordinary course of business, LESS all reserves with respect to
such accounts receivable and less any and all offsets, counterclaims or contras
in respect thereof (including the amount of any account payable (including any
uninvoiced account payable) or other liability owed by the Company or any of its
Restricted Subsidiaries to the account debtor on such account receivable,
whether or not a specific netting agreement may exist).
"REDEEM" means to redeem, repurchase, purchase, defease, retire,
discharge or otherwise acquire or retire for value; and "REDEMPTION" shall have
a correlative meaning; PROVIDED that this definition shall not apply for
purposes of Section 3.07 hereof.
"REDESIGNATION" has the meaning given to such term in Section 4.16
hereof.
"REFINANCE" means to refinance, repay, prepay, replace, renew or refund.
"REFINANCING INDEBTEDNESS" means Indebtedness of the Company or a
Restricted Subsidiary issued in exchange for, or the proceeds from the issuance
and sale or disbursement of which are used substantially concurrently to redeem
or refinance in whole or in part, any Indebtedness of the Company or any
Restricted Subsidiary (the "REFINANCED INDEBTEDNESS") in a principal amount not
in excess of the principal amount plus accrued interest, penalties and other
costs of retiring the Refinanced Indebtedness so repaid or amended and the costs
of issuance of such Refinancing Indebtedness (or, if such Refinancing
Indebtedness refinances Indebtedness under a revolving credit facility or other
agreement providing a
-22-
commitment for subsequent borrowings, with a maximum commitment not to exceed
the maximum commitment under such revolving credit facility or other agreement);
PROVIDED that:
(1) the Refinancing Indebtedness is the obligation of the
same Person as that of the Refinanced Indebtedness;
(2) if the Refinanced Indebtedness was subordinated to or
PARI PASSU with the Notes or the Note Guarantees, as the case may be,
then such Refinancing Indebtedness, by its terms, is expressly PARI
PASSU with (in the case of Refinanced Indebtedness that was PARI PASSU
with) or subordinate in right of payment to (in the case of Refinanced
Indebtedness that was subordinated to) the Notes or the Note Guarantees,
as the case may be, at least to the same extent as the Refinanced
Indebtedness;
(3) the Refinancing Indebtedness is scheduled to mature
either (a) no earlier than the Refinanced Indebtedness being repaid or
amended or (b) after the maturity date of the Notes;
(4) the portion, if any, of the Refinancing Indebtedness
that is scheduled to mature on or prior to the maturity date of the
Notes has a Weighted Average Life to Maturity at the time such
Refinancing Indebtedness is incurred that is equal to or greater than
the Weighted Average Life to Maturity of the portion of the Refinanced
Indebtedness being repaid that is scheduled to mature on or prior to the
maturity date of the Notes; and
(5) the Refinancing Indebtedness is secured only to the
extent, if at all, and by the assets, that the Refinanced Indebtedness
being repaid or amended is secured.
"REGISTRATION RIGHTS AGREEMENT" means the A/B Exchange Registration
Rights Agreement, dated as of May 30, 2003, by and among the Company and the
other parties named on the signature pages thereof, as such agreement may be
amended, modified or supplemented from time to time and, with respect to any
Additional Notes, one or more registration rights agreements between the Company
and the other parties thereto, as such agreement(s) may be amended, modified or
supplemented from time to time, relating to rights given by the Company to the
purchasers of Additional Notes to register such Additional Notes under the
Securities Act.
"REGULATION S" means Regulation S promulgated under the Securities Act.
"REGULATION S GLOBAL NOTE" means a global Note bearing the Private
Placement Legend and deposited with or on behalf of the Depositary and
registered in the name of the Depositary or its nominee, issued in a
denomination equal to the outstanding principal amount of the Notes initially
sold in reliance on Rule 903 of Regulation S.
"REGULATION S PERMANENT GLOBAL NOTE" means a permanent global Note in
the form of EXHIBIT A-1 hereto bearing the Global Note Legend and the Private
Placement Legend and deposited with or on behalf of and registered in the name
of the Depositary or its nominee, issued in a denomination equal to the
outstanding principal amount of the Regulation S Temporary Global Note upon
expiration of the Restricted Period.
-23-
"REGULATION S TEMPORARY GLOBAL NOTE" means a temporary global Note in
the form of EXHIBIT A-2 hereto bearing the Private Placement Legend and
deposited with or on behalf of and registered in the name of the Depositary or
its nominee, issued in a denomination equal to the outstanding principal amount
of the Notes initially sold in reliance on Rule 903 of Regulation S.
"REPRESENTATIVE" means any agent or representative in respect of any
Designated Senior Debt; PROVIDED that if, and for so long as, any Designated
Senior Debt lacks such representative, then the Representative for such
Designated Senior Debt shall at all times constitute the holders of a majority
in outstanding principal amount of such Designated Senior Debt.
"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 DEFINITIVE NOTE" means a Definitive Note bearing the Private
Placement Legend.
"RESTRICTED GLOBAL NOTE" means a Global Note bearing the Private
Placement Legend.
"RESTRICTED PAYMENT" means any of the following:
(1) the declaration or payment of any dividend or any other
distribution on Equity Interests of the Company or any Restricted
Subsidiary or any payment made to the direct or indirect holders (in
their capacities as such) of Equity Interests of the Company or any
Restricted Subsidiary, including, without limitation, any payment in
connection with any merger or consolidation involving the Company but
excluding (a) dividends or distributions payable solely in Qualified
Equity Interests and (b) in the case of Restricted Subsidiaries,
dividends or distributions payable to the Company or to a Restricted
Subsidiary and PRO RATA dividends or distributions payable to minority
stockholders of any Restricted Subsidiary;
(2) the redemption of any Equity Interests of the Company or
any Restricted Subsidiary, including, without limitation, any payment in
connection with any merger or consolidation involving the Company but
excluding any such Equity Interests held by the Company or any
Restricted Subsidiary;
(3) any Investment other than a Permitted Investment; or
(4) any redemption prior to the scheduled maturity or prior
to any scheduled repayment of principal or sinking fund payment, as the
case may be, in respect of Subordinated Indebtedness.
"RESTRICTED PAYMENTS BASKET" has the meaning given to such term in
Section 4.07(a)(iii) hereof.
"RESTRICTED PERIOD" means the 40-day restricted period as defined in
Regulation S.
-24-
"RESTRICTED SUBSIDIARY" means any Subsidiary of the Company other than
an Unrestricted Subsidiary.
"RULE 144" means Rule 144 promulgated under the Securities Act.
"RULE 144A" means Rule 144A promulgated under the Securities Act.
"RULE 903" means Rule 903 promulgated under the Securities Act.
"RULE 904" means Rule 904 promulgated under the Securities Act.
"S&P" means Standard & Poor's Ratings Services, a division of the
▇▇▇▇▇▇-▇▇▇▇ Companies, Inc., and its successors.
"SALE AND LEASEBACK TRANSACTIONS" means with respect to any Person an
arrangement with any bank, insurance company or other lender or investor or to
which such lender or investor is a party, providing for the leasing by such
Person of any asset of such Person which has been or is being sold or
transferred by such Person to such lender or investor or to any Person to whom
funds have been or are to be advanced by such lender or investor on the security
of such asset; PROVIDED that a sale of a terminal or other facility shall not be
deemed to constitute a Sale and Leaseback Transaction solely because the Company
or any of its Subsidiaries agree in connection with such sale to use such
terminal or other facility at specified minimum levels unless such arrangement
results in the transaction being treated as a Capitalized Lease.
"SEC" means the U.S. Securities and Exchange Commission.
"SECRETARY'S CERTIFICATE" means a certificate signed by the Secretary of
the Company.
"SECURITIES ACT" means the U.S. Securities Act of 1933, as amended.
"SENIOR DEBT" means the principal of, premium, if any, and interest
(including any interest accruing subsequent to the filing of a petition of
bankruptcy at the rate provided for in the documentation with respect thereto,
whether or not such interest is an allowed claim under applicable law) on any
Indebtedness of the Company, whether outstanding on the Issue Date or thereafter
created, incurred or assumed, unless, in the case of any particular
Indebtedness, the instrument creating or evidencing the same or pursuant to
which the same is outstanding expressly provides that such Indebtedness shall
not be senior in right of payment to the Notes.
Without limiting the generality of the foregoing, "Senior Debt" shall
also include the principal of, premium, if any, interest (including any interest
accruing subsequent to the filing of a petition of bankruptcy at the rate
provided for in the documentation with respect thereto, whether or not such
interest is an allowed claim under applicable law) on, and all other amounts
owing in respect of: (1) all monetary obligations of every nature under, or with
respect to, the Credit Agreement, including, without limitation, obligations to
pay principal and interest, reimbursement obligations under letters of credit,
fees, expenses and indemnities (and guarantees thereof); and (2) all Hedging
Obligations in respect of the Credit Agreement; in each case whether outstanding
on the Issue Date or thereafter incurred.
-25-
Notwithstanding the foregoing, "Senior Debt" shall not include:
(1) any Indebtedness of the Company to any of its
Subsidiaries;
(2) Indebtedness to, or guaranteed on behalf of, any
director, officer or employee of the Company or any of its Subsidiaries
(including, without limitation, amounts owed for compensation);
(3) obligations to trade creditors and other amounts
incurred (but not under the Credit Agreement) in connection with
obtaining goods, materials or services;
(4) Indebtedness represented by Disqualified Equity
Interests;
(5) any liability for taxes owed or owing by the Company;
(6) that portion of any Indebtedness incurred in violation
of Section 4.09 (but, as to any such obligation, no such violation shall
be deemed to exist for purposes of this clause (6) if the holder(s) of
such obligation or their representative shall have received an Officers'
Certificate of the Company to the effect that the incurrence of such
Indebtedness does not (or, in the case of revolving credit indebtedness,
that the incurrence of the entire committed amount thereof at the date
on which the initial borrowing thereunder is made would not) violate
such provisions of this Agreement);
(7) Indebtedness which, when incurred and without respect to
any election under Section 1111(b) of ▇▇▇▇▇ ▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇ Code, is
without recourse to the Company; and
(8) any Indebtedness which is, by its express terms,
subordinated in right of payment to any other Indebtedness of the
Company.
"SERIES A CONVERTIBLE PREFERRED STOCK" means the Series A Convertible
Preferred Stock, par value $.01 per share, issued by the Company on or after
March 25, 1999 in the aggregate initial amount of up to 200,000 shares having an
initial liquidation value of $1,000 per share and any additional shares of such
series of convertible preferred stock issued as or in lieu of dividends thereon.
"SERIES B CONVERTIBLE PREFERRED STOCK" means the Series B Convertible
Preferred Stock, par value $.01 per share, issued by the Company on or after
June 27, 2002 in the aggregate initial amount of up to 100,000 shares having an
initial liquidation value of $1,000 per share and any additional shares of such
series of convertible preferred stock issued as or in lieu of dividends thereon.
"SHELF REGISTRATION STATEMENT" means the Shelf Registration Statement as
defined in the Registration Rights Agreement.
"SIGNIFICANT SUBSIDIARY" means (1) any Restricted Subsidiary that would
be a "significant subsidiary" as defined in Regulation S-X promulgated pursuant
to the Securities Act as such Regulation is in effect on the Issue Date and (2)
any Restricted Subsidiary that, when aggregated with all other Restricted
Subsidiaries that are not otherwise Significant Subsidiaries and as to which any
event described in Section
-26-
6.01 (g) or (h) hereof has occurred and is continuing, would constitute a
Significant Subsidiary under clause (1) of this definition.
"SUBORDINATED INDEBTEDNESS" means Indebtedness of the Company or any
Restricted Subsidiary that is subordinated in right of payment to the Notes or
the Note Guarantees, respectively.
"SUBSIDIARY" means, with respect to any Person: (1) any corporation,
limited liability company, association or other business entity of which more
than 50% of the total voting power of the Equity Interests entitled (without
regard to the occurrence of any contingency) to vote in the election of the
Board of Directors thereof are at the time owned or controlled, directly or
indirectly, by such Person or one or more of the other Subsidiaries of that
Person (or a combination thereof); and (2) 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
otherwise specified, "Subsidiary" refers to a Subsidiary of the Company.
"TIA" means the Trust
Indenture Act of 1939 (15 U.S.C. Sections
77aaa-77bbbb) as in effect on the date on which this Agreement is qualified
under the TIA.
"TREASURY RATE" means the yield to maturity at the time of computation
of United States Treasury securities with a constant maturity (as compiled and
published in the most recent Federal Reserve Statistical Release H.15(519) which
has become publicly available at least two Business Days prior to the date fixed
for redemption or, in the case of defeasance, prior to the date of deposit (or,
if such Statistical Release is no longer published, any publicly available
source of similar market data)) most nearly equal to the then remaining average
life to June 1, 2007 or, in the case of defeasance, to maturity; PROVIDED,
HOWEVER, that if the average life to June 1, 2007 or maturity, as the case may
be, of the Notes is not equal to the constant maturity of a United States
Treasury security for which a weekly average yield is given, the Treasury Rate
shall be obtained by linear interpolation (calculated to the nearest one-twelfth
of a year) from the weekly average yields of United States Treasury securities
for which such yields are given, except that if the average life to June 1, 2007
or maturity, as the case may be, of the Notes is less than one year, the weekly
average yield on actually traded United States Treasury securities adjusted to a
constant maturity of one year shall be used.
"TRUSTEE" means the party named as such above until a successor replaces
it in accordance with the applicable provisions of this Agreement and thereafter
means the successor serving hereunder.
"U.S. PERSON" means a U.S. person as defined in Rule 902(o) under the
Securities Act.
"UNRESTRICTED DEFINITIVE NOTE" means one or more Definitive Notes that
do not bear and are not required to bear the Private Placement Legend.
"UNRESTRICTED GLOBAL NOTE" means a permanent global Note substantially
in the form of EXHIBIT A-1 attached hereto that bears the Global Note Legend and
that has the "Schedule of Exchanges of Interests in the Global Note" attached
thereto, and that is deposited with or on behalf of and registered in the name
of the Depositary, representing a series of Notes that do not bear the Private
Placement Legend.
-27-
"UNRESTRICTED SUBSIDIARY" means (1) any Subsidiary that at the time of
determination shall be designated an Unrestricted Subsidiary by the Board of
Directors of the Company in accordance with Section 4.16 hereof and (2) any
Subsidiary of an Unrestricted Subsidiary.
"U.S. GOVERNMENT OBLIGATIONS" means direct non-callable 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 is
pledged.
"VOTING STOCK" with respect to any Person, means securities of any class
of Equity Interests of such Person entitling the holders thereof (whether at all
times or only so long as no senior class of stock or other relevant equity
interest has voting power by reason of any contingency) to vote in the election
of members of the Board of Directors of such Person.
"WEIGHTED AVERAGE LIFE TO MATURITY" when applied to any Indebtedness at
any date, means the number of years obtained by dividing (1) the sum of the
products obtained by multiplying (a) the amount of each then remaining
installment, sinking fund, serial maturity or other required payment 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 (2) the then outstanding principal
amount of such Indebtedness.
"WHOLLY-OWNED RESTRICTED SUBSIDIARY" means a Restricted Subsidiary of
which 100% of the Equity Interests (except for directors' qualifying shares or
certain minority interests owned by other Persons solely due to local law
requirements that there be more than one stockholder, but which interest is not
in excess of what is required for such purpose) are owned directly by the
Company or through one or more Wholly-Owned Restricted Subsidiaries.
1.02 OTHER DEFINITIONS.
Defined in
Term Section
---- ----------
"AFFILIATE TRANSACTION"........................................................ 4.11
"AUTHENTICATION ORDER"......................................................... 2.02
"CHANGE OF CONTROL OFFER"...................................................... 4.15
"CHANGE OF CONTROL PAYMENT".................................................... 4.15
"CHANGE OF CONTROL PAYMENT DATE"............................................... 4.15
"COVENANT DEFEASANCE".......................................................... 8.03
"DTC".......................................................................... 2.02
"EVENT OF DEFAULT"............................................................. 6.01
"EXCESS PROCEEDS".............................................................. 4.10
"LEGAL DEFEASANCE"............................................................. 8.02
"NET PROCEEDS DEFICIENCY"...................................................... 4.10
"NET PROCEEDS OFFER"........................................................... 4.10
"OFFERED PRICE"................................................................ 4.10
"PARI PASSU INDEBTEDNESS PRICE"................................................ 4.10
"PAYING AGENT"................................................................. 2.03
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"PAYMENT AMOUNT"............................................................... 4.10
"PAYMENT BLOCKAGE NOTICE"...................................................... 10.03
"PERMITTED DEBT"............................................................... 4.09
"REGISTRAR".................................................................... 2.03
"RESTRICTED PAYMENTS".......................................................... 4.07
1.03 INCORPORATION BY REFERENCE OF TRUST
INDENTURE ACT.
Whenever this Agreement refers to a provision of the TIA, the provision
is incorporated by reference in and made a part of this Agreement.
The following TIA terms used in this Agreement have the following
meanings:
"INDENTURE SECURITIES" means the Notes;
"INDENTURE SECURITY HOLDER" means a Holder of a Note;
"INDENTURE TO BE QUALIFIED" means this Agreement;
"INDENTURE TRUSTEE" or "INSTITUTIONAL TRUSTEE" means the Trustee; and
"OBLIGOR" on the Notes and the Note Guarantees means the Company and the
Guarantors, respectively, and any successor obligor upon the Notes and the Note
Guarantees, respectively.
All other terms used in this Agreement 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.
1.04 RULES OF CONSTRUCTION.
Unless the context otherwise requires:
(a) a term has the meaning assigned to it;
(b) an accounting term not otherwise defined has the meaning
assigned to it in accordance with GAAP;
(c) "or" is not exclusive;
(d) words in the singular include the plural, and in the plural
include the singular;
(e) provisions apply to successive events and transactions; and
(f) references to sections of or rules under the Securities Act
shall be deemed to include substitute, replacement of successor sections or
rules adopted by the SEC from time to time.
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ARTICLE II
THE NOTES
2.01 FORM AND DATING.
(a) GENERAL. The Notes and the Trustee's certificate of
authentication shall be substantially in the form of EXHIBIT A-1 or A-2 hereto.
The Notes may have notations, legends or endorsements required by law, stock
exchange rule or usage. Each Note shall be dated the date of its authentication.
The Notes shall be in denominations of $1,000 and integral multiples thereof.
The terms and provisions contained in the Notes shall constitute, and
are hereby expressly made, a part of this Agreement and the Company, the
Guarantors and the Trustee, by their execution and delivery of this Agreement,
expressly agree to such terms and provisions and to be bound thereby. However,
to the extent any provision of any Note conflicts with the express provisions of
this Agreement, the provisions of this Agreement shall govern and be
controlling.
(b) GLOBAL NOTES. Notes issued in global form shall be substantially
in the form of EXHIBITS A-1 or A-2 attached hereto (including the Global Note
Legend thereon and the "Schedule of Exchanges of Interests in the Global Note"
attached thereto). Notes issued in definitive form shall be substantially in the
form of EXHIBIT A-1 attached hereto (but without the Global Note Legend thereon
and without the "Schedule of Exchanges of Interests in the Global Note" attached
thereto). Each Global Note shall represent such of the outstanding Notes as
shall be specified therein and each shall provide that it shall represent the
aggregate principal amount of outstanding Notes from time to time endorsed
thereon and that the aggregate principal amount of outstanding Notes represented
thereby may from time to time be reduced or increased, as appropriate, to
reflect exchanges and redemptions. Any endorsement of a Global Note to reflect
the amount of any increase or decrease in the aggregate principal amount of
outstanding Notes represented thereby shall be made by the Trustee or the
Depositary Custodian, at the direction of the Trustee, in accordance with
instructions given by the Holder thereof as required by Section 2.06 hereof.
(c) TEMPORARY GLOBAL NOTES. Notes offered and sold in reliance on
Regulation S shall be issued initially in the form of the Regulation S Temporary
Global Note, which shall be deposited on behalf of the purchasers of the Notes
represented thereby with the Trustee, at its Corporate Trust Office, as
Depositary Custodian, and registered in the name of the Depositary or the
nominee of the Depositary for the accounts of designated agents holding on
behalf of Euroclear or Clearstream, duly executed by the Company and
authenticated by the Trustee as hereinafter provided. The Restricted Period
shall be terminated upon the receipt by the Trustee of (i) a written certificate
from the Depositary, together with copies of certificates from Euroclear and
Clearstream certifying that they have received certification of non-United
States beneficial ownership of 100% of the aggregate principal amount of the
Regulation S Temporary Global Note (except to the extent of any beneficial
owners thereof who acquired an interest therein during the Restricted Period
pursuant to another exemption from registration under the Securities Act and who
will take delivery of a beneficial ownership interest in a 144A Global Note or
an IAI Global Note bearing a Private Placement Legend, all as contemplated by
Section 2.06(a)(ii) hereof), and (ii) an Officers' Certificate from the Company.
Following the termination of the Restricted Period, beneficial interests in the
Regulation S Temporary Global Note shall be exchanged for beneficial interests
in Regulation S Perma-
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nent Global Notes pursuant to the Applicable Procedures. Simultaneously with the
authentication of Regulation S Permanent Global Notes, the Trustee shall cancel
the Regulation S Temporary Global Note. The aggregate principal amount of the
Regulation S Temporary Global Note and the Regulation S Permanent Global Notes
may from time to time be increased or decreased by adjustments made on the
records of the Trustee and the Depositary or its nominee, as the case may be, in
connection with transfers of interest as hereinafter provided.
(d) EUROCLEAR AND CLEARSTREAM PROCEDURES APPLICABLE. The provisions
of the "Operating Procedures of the Euroclear System" and "Terms and Conditions
Governing Use of Euroclear" and the "General Terms and Conditions of
Clearstream" and "Customer Handbook" of Clearstream shall be applicable to
transfers of beneficial interests in the Regulation S Temporary Global Note and
the Regulation S Permanent Global Notes that are held by Participants through
Euroclear or Clearstream.
2.02 EXECUTION AND AUTHENTICATION.
An Officer shall sign the Notes for the Company by manual or facsimile
signature.
If an Officer 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 until authenticated by the manual signature of
the Trustee. The signature shall be conclusive evidence that the Note has been
authenticated under this Agreement.
The Trustee shall authenticate (i) Initial Notes for original issue in
the aggregate principal amount not to exceed $200,000,000, (ii) Additional Notes
and (iii) Exchange Notes (x) in exchange for a like principal amount of Initial
Notes or (y) in exchange for a like principal amount of Additional Notes in each
case upon a written order of the Company in the form of an Officers' Certificate
of the Company (an "AUTHENTICATION ORDER"). Each such written order shall
specify the amount of Notes to be authenticated and the date on which the Notes
are to be authenticated, whether the Notes are to be Initial Notes, Exchange
Notes or Additional Notes and whether the Notes are to be issued as certificated
Notes or Global Notes or such other information as the Trustee may reasonably
request. In addition, with respect to authentication pursuant to clauses (ii) or
(iii) of the first sentence of this paragraph, the first such written order from
the Company shall be accompanied by an Opinion of counsel of the Company in a
form reasonably satisfactory to the Trustee.
The Trustee may appoint an authenticating agent acceptable to the
Company to authenticate Notes. An authenticating agent may authenticate Notes
whenever the Trustee may do so. Each reference in this Agreement to
authentication by the Trustee includes authentication by such agent. An
authenticating agent has the same rights as an Agent to deal with Holders or the
Company.
2.03 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")
within the City and State of
New York. The Registrar shall keep a register of
the Notes and of their transfer and exchange. The Company may appoint one or
more co-registrars and one
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or more additional paying agents. The term "Registrar" includes any co-registrar
and the term "Paying Agent" includes any additional paying agent. The Company
may change any Paying Agent or Registrar without notice to any Holder. The
Company shall notify the Trustee in writing of the name and address of any Agent
not a party to this Agreement. If the Company fails to appoint or maintain
another entity as Registrar or Paying Agent, the Trustee shall act as such. The
Company or any of its Subsidiaries may act as Paying Agent or Registrar.
The Company initially appoints The Depository Trust Company ("DTC") to
act as Depositary with respect to the Global Notes.
The Company initially appoints the Trustee to act as the Registrar and
Paying Agent and to act as Depositary Custodian with respect to the Global
Notes.
2.04 PAYING AGENT TO HOLD MONEY IN TRUST.
The Company shall require each Paying Agent other than the Trustee to
agree in writing that the Paying Agent will hold in trust for the benefit of
Holders or the Trustee all money held by the Paying Agent for the payment of
principal, premium or Additional Interest, if any, or interest on the Notes, and
will notify the Trustee of any default by the Company in making any such
payment. While any such default continues, the Trustee may require a Paying
Agent to pay all money held by it to the Trustee. The Company at any time may
require a Paying Agent to pay all money held by it to the Trustee. Upon payment
over to the Trustee, the Paying Agent (if other than the Company or a
Subsidiary) shall have no further liability for the money. If the Company or a
Subsidiary acts as Paying Agent, it shall segregate and hold in a separate trust
fund for the benefit of the Holders all money held by it as Paying Agent. Upon
any bankruptcy or reorganization proceedings relating to the Company, the
Trustee shall serve as Paying Agent for the Notes.
2.05 HOLDER LISTS.
The Trustee shall preserve in as current a form as is reasonably
practicable the most recent list available to it of the names and addresses of
all Holders and shall otherwise comply with TIA Section 312(a). If the Trustee
is not the Registrar, the Company shall furnish to the Trustee at least seven
Business Days before each interest payment date and at such other times as the
Trustee may request in writing, a list in such form and as of such date as the
Trustee may reasonably require of the names and addresses of the Holders of
Notes and the Company shall otherwise comply with TIA Section 312(a).
2.06 TRANSFER AND EXCHANGE.
(a) TRANSFER AND EXCHANGE OF GLOBAL NOTES. A Global Note may not be
transferred as a whole except by the Depositary to a nominee of the Depositary,
by a nominee of the Depositary to the Depositary or to another nominee of the
Depositary, or by the Depositary or any such nominee to a successor Depositary
or a nominee of such successor Depositary. All Global Notes will be exchanged by
the Company for Definitive Notes if (i) the Company delivers to the Trustee
notice from the Depositary that it is unwilling or unable to continue to act as
Depositary or that it is no longer a clearing agency registered under the
Exchange Act and, in either case, a successor Depositary is not appointed by the
Company within 120 days after the date of such notice from the Depositary or
(ii) the Company in its sole discretion
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determines that the Global Notes (in whole but not in part) should be exchanged
for Definitive Notes and delivers a written notice to such effect to the
Trustee; PROVIDED that in no event shall the Regulation S Temporary Global Note
be exchanged by the Company for Definitive Notes prior to (x) the expiration of
the Restricted Period and (y) the receipt by the Registrar of any certificates
required pursuant to Rule 903(b)(3)(ii)(B) under the Securities Act. Upon the
occurrence of either of the preceding events in (i) or (ii) above, Definitive
Notes shall be issued in such names as the Depositary shall instruct the
Trustee. Global Notes also may be exchanged or replaced, in whole or in part, as
provided in Sections 2.07 and 2.10 hereof. Every Note authenticated and
delivered in exchange for, or in lieu of, a Global Note or any portion thereof,
pursuant to this Section 2.06 or Section 2.07 or 2.10 hereof, shall be
authenticated and delivered in the form of, and shall be, a Global Note. A
Global Note may not be exchanged for another Note other than as provided in this
Section 2.06(a), however, beneficial interests in a Global Note may be
transferred and exchanged as provided in Section 2.06(b), (c) or (f) hereof.
(b) TRANSFER AND EXCHANGE OF BENEFICIAL INTERESTS IN THE GLOBAL
NOTES. The transfer and exchange of beneficial interests in the Global Notes
shall be effected through the Depositary, in accordance with the provisions of
this Agreement and the Applicable Procedures. Beneficial interests in the
Restricted Global Notes shall be subject to restrictions on transfer comparable
to those set forth herein to the extent required by the Securities Act.
Transfers of beneficial interests in the Global Notes also shall require
compliance with either subparagraph (i) or (ii) below, as applicable, as well as
one or more of the other following subparagraphs, as applicable:
(i) TRANSFER OF BENEFICIAL INTERESTS IN THE SAME GLOBAL
NOTE. Beneficial interests in any Restricted Global Note may be
transferred to Persons who take delivery thereof in the form of a
beneficial interest in the same Restricted Global Note in accordance
with the transfer restrictions set forth in the Private Placement
Legend; PROVIDED that prior to the expiration of the Restricted Period,
transfers of beneficial interests in the Temporary Regulation S Global
Note may not be made to a U.S. Person or for the account or benefit of a
U.S. Person (other than an Initial Purchaser). Beneficial interests in
any Unrestricted Global Note may be transferred to Persons who take
delivery thereof in the form of a beneficial interest in an Unrestricted
Global Note. No written orders or instructions shall be required to be
delivered to the Registrar to effect the transfers described in this
Section 2.06(b)(i).
(ii) ALL OTHER TRANSFERS AND EXCHANGES OF BENEFICIAL
INTERESTS IN GLOBAL NOTES. In connection with all transfers and
exchanges of beneficial interests that are not subject to Section
2.06(b)(i) above, the transferor of such beneficial interest must
deliver to the Registrar either (A) (1) a written order from a
Participant or an Indirect Participant given to the Depositary in
accordance with the Applicable Procedures directing the Depositary to
credit or cause to be credited a beneficial interest in another Global
Note in an amount equal to the beneficial interest to be transferred or
exchanged and (2) instructions given in accordance with the Applicable
Procedures containing information regarding the Participant account to
be credited with such increase or (B) (1) a written order from a
Participant or an Indirect Participant given to the Depositary in
accordance with the Applicable Procedures directing the Depositary to
cause to be issued a Definitive Note in an amount equal to the
beneficial interest to be transferred or exchanged and (2) instructions
given by the Depositary to the Registrar containing information
regarding the Person in whose name such Definitive Note shall be
registered to effect the transfer or exchange referred to in (1) above;
PROVIDED that in no event shall Definitive Notes be issued upon the
transfer or exchange of
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beneficial interests in the Regulation S Temporary Global Note prior to
(x) the expiration of the Restricted Period and (y) the receipt by the
Registrar of any certificates required pursuant to Rule 903 under the
Securities Act. Upon consummation of an Exchange Offer by the Company in
accordance with Section 2.06(f) hereof, the requirements of this Section
2.06(b)(ii) shall be deemed to have been satisfied upon receipt by the
Registrar of the instructions contained in the Letter of Transmittal
delivered by the Holder of such beneficial interests in the Restricted
Global Notes. Upon satisfaction of all of the requirements for transfer
or exchange of beneficial interests in Global Notes contained in this
Agreement and the Notes or otherwise applicable under the Securities
Act, the Trustee shall adjust the principal amount of the relevant
Global Note(s) pursuant to Section 2.06(h) hereof.
(iii) TRANSFER OF BENEFICIAL INTERESTS IN A RESTRICTED GLOBAL
NOTE TO ANOTHER RESTRICTED GLOBAL NOTE. A beneficial interest in any
Restricted Global Note may be transferred to a Person who takes delivery
thereof in the form of a beneficial interest in another Restricted
Global Note if the transfer complies with the requirements of Section
2.06(b)(ii) above and the Registrar receives the following:
(A) if the transferee will take delivery in the form
of a beneficial interest in the 144A Global Note, then the
transferor must deliver a certificate in the form of EXHIBIT B
hereto, including the certifications in item (1) thereof;
(B) if the transferee will take delivery in the form
of a beneficial interest in the Regulation S Temporary Global
Note or the Regulation S Global Note, then the transferor must
deliver a certificate in the form of EXHIBIT B hereto, including
the certifications in item (2) thereof; and
(C) if the transferee will take delivery in the form
of a beneficial interest in the IAI Global Note, then the
transferor must deliver a certificate in the form of EXHIBIT B
hereto, including the certifications and certificates and
Opinion of counsel required by item (3) thereof, if applicable.
(iv) TRANSFER AND EXCHANGE OF BENEFICIAL INTERESTS IN A
RESTRICTED GLOBAL NOTE FOR BENEFICIAL INTERESTS IN THE UNRESTRICTED
GLOBAL NOTE. A beneficial interest in any Restricted Global Note may be
exchanged by any holder thereof for a beneficial interest in an
Unrestricted Global Note or transferred to a Person who takes delivery
thereof in the form of a beneficial interest in an Unrestricted Global
Note if the exchange or transfer complies with the requirements of
Section 2.06(b)(ii) above and:
(A) such exchange or transfer is effected pursuant
to the Exchange Offer in accordance with the Registration Rights
Agreement and the holder of the beneficial interest to be
transferred, in the case of an exchange, or the transferee, in
the case of a transfer, certifies in the applicable Letter of
Transmittal that it is not (1) a broker-dealer, (2) a Person
participating in the distribution of the Exchange Notes or (3) a
Person who is an affiliate (as defined in Rule 144) of the
Company;
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(B) such transfer is effected pursuant to the Shelf
Registration Statement in accordance with the Registration
Rights Agreement;
(C) such transfer is effected by a Broker-Dealer
pursuant to the Exchange Offer Registration Statement in
accordance with the Registration Rights Agreement; or
(D) the Registrar receives the following:
(1) if the holder of such beneficial
interest in a Restricted Global Note proposes to
exchange such beneficial interest for a beneficial
interest in an Unrestricted Global Note, a certificate
from such holder in the form of EXHIBIT C hereto,
including the certifications in item (1)(a) thereof; or
(2) if the holder of such beneficial
interest in a Restricted Global Note proposes to
transfer such beneficial interest to a Person who shall
take delivery thereof in the form of a beneficial
interest in an Unrestricted Global Note, a certificate
from such holder in the form of EXHIBIT B hereto,
including the certifications in item (4) thereof;
and, in each such case set forth in this subparagraph (D), if
the Registrar so requests or if the Applicable Procedures so
require, an opinion of counsel in form reasonably acceptable to
the Registrar to the effect that such exchange or transfer is in
compliance with the Securities Act and that the restrictions on
transfer contained herein and in the Private Placement Legend
are no longer required in order to maintain compliance with the
Securities Act.
If any such transfer is effected pursuant to subparagraph (B)
or (D) above at a time when an Unrestricted Global Note has not yet been
issued, the Company shall issue and, upon receipt of an Authentication
Order in accordance with Section 2.02 hereof, the Trustee shall
authenticate one or more Unrestricted Global Notes in an aggregate
principal amount equal to the aggregate principal amount of beneficial
interests transferred pursuant to subparagraph (B) or (D) above.
Beneficial interests in an Unrestricted Global Note cannot be
exchanged for, or transferred to Persons who take delivery thereof in
the form of, a beneficial interest in a Restricted Global Note.
(c) TRANSFER OR EXCHANGE OF BENEFICIAL INTEREST IN GLOBAL NOTES FOR
DEFINITIVE NOTES.
(i) BENEFICIAL INTERESTS IN RESTRICTED GLOBAL NOTES TO
RESTRICTED DEFINITIVE NOTES. If any holder of a beneficial interest in a
Restricted Global Note proposes to exchange such beneficial interest for
a Restricted Definitive Note or to transfer such beneficial interest to
a Person who takes delivery thereof in the form of a Restricted
Definitive Note, then, upon receipt by the Registrar of the following
documentation:
(A) if the holder of such beneficial interest in a
Restricted Global Note proposes to exchange such beneficial
interest for a Restricted Definitive Note, a certificate
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from such holder in the form of EXHIBIT C hereto, including the
certifications in item (2)(a) thereof;
(B) if such beneficial interest is being transferred
to a QIB in accordance with Rule 144A under the Securities Act,
a certificate to the effect set forth in EXHIBIT B hereto,
including the certifications in item (1) thereof;
(C) if such beneficial interest is being transferred
to a Non-U.S. Person in an offshore transaction in accordance
with Rule 903 or Rule 904 under the Securities Act, a
certificate to the effect set forth in EXHIBIT B hereto,
including the certifications in item (2) thereof;
(D) if such beneficial interest is being transferred
pursuant to an exemption from the registration requirements of
the Securities Act in accordance with Rule 144 under the
Securities Act, a certificate to the effect set forth in EXHIBIT
B hereto, including the certifications in item (3)(a) thereof;
(E) if such beneficial interest is being transferred
to an Institutional Accredited Investor in reliance on an
exemption from the registration requirements of the Securities
Act other than those listed in subparagraphs (B) through (D)
above, a certificate to the effect set forth in EXHIBIT B
hereto, including the certifications, certificates and Opinion
of counsel required by item (3) thereof, if applicable;
(F) if such beneficial interest is being transferred
to the Company or any of its Subsidiaries, a certificate to the
effect set forth in EXHIBIT B hereto, including the
certifications in item (3)(b) thereof; or
(G) if such beneficial interest is being transferred
pursuant to an effective registration statement under the
Securities Act, a certificate to the effect set forth in EXHIBIT
B hereto, including the certifications in item (3)(c) thereof,
the Trustee shall cause the aggregate principal amount of the applicable
Global Note to be reduced accordingly pursuant to Section 2.06(h)
hereof, and the Company shall execute and the Trustee shall authenticate
and deliver to the Person designated in the instructions a Definitive
Note in the appropriate principal amount. Any Definitive Note issued in
exchange for a beneficial interest in a Restricted Global Note pursuant
to this Section 2.06(c) shall be registered in such name or names and in
such authorized denomination or denominations as the holder of such
beneficial interest shall instruct the Registrar through instructions
from the Depositary and the Participant or Indirect Participant. The
Trustee shall deliver such Definitive Notes to the Persons in whose
names such Notes are so registered. Any Definitive Note issued in
exchange for a beneficial interest in a Restricted Global Note pursuant
to this Section 2.06(c)(i) shall bear the Private Placement Legend and
shall be subject to all restrictions on transfer contained therein.
(ii) BENEFICIAL INTERESTS IN REGULATION S TEMPORARY GLOBAL
NOTE TO DEFINITIVE NOTES. Notwithstanding Sections 2.06(c)(i)(A) and (C)
hereof, a beneficial interest in the Regulation S Temporary Global Note
may not be exchanged for a Definitive Note or transferred to a Person
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who takes delivery thereof in the form of a Definitive Note prior to (x)
the expiration of the Restricted Period and (y) the receipt by the
Registrar of any certificates required pursuant to Rule 903(b)(3)(ii)(B)
under the Securities Act, except in the case of a transfer pursuant to
an exemption from the registration requirements of the Securities Act
other than Rule 903 or Rule 904.
(iii) BENEFICIAL INTERESTS IN RESTRICTED GLOBAL NOTES TO
UNRESTRICTED DEFINITIVE NOTES. A holder of a beneficial interest in a
Restricted Global Note may exchange such beneficial interest for an
Unrestricted Definitive Note or may transfer such beneficial interest to
a Person who takes delivery thereof in the form of an Unrestricted
Definitive Note only if:
(A) such exchange or transfer is effected pursuant
to the Exchange Offer in accordance with the Registration Rights
Agreement and the holder of such beneficial interest, in the
case of an exchange, or the transferee, in the case of a
transfer, certifies in the applicable Letter of Transmittal that
it is not (1) a broker-dealer, (2) a Person participating in the
distribution of the Exchange Notes or (3) a Person who is an
affiliate (as defined in Rule 144) of the Company;
(B) such transfer is effected pursuant to the Shelf
Registration Statement in accordance with the Registration
Rights Agreement;
(C) such transfer is effected by a Broker-Dealer
pursuant to the Exchange Offer Registration Statement in
accordance with the Registration Rights Agreement; or
(D) the Registrar receives the following:
(1) if the holder of such beneficial
interest in a Restricted Global Note proposes to
exchange such beneficial interest for a Definitive Note
that does not bear the Private Placement Legend, a
certificate from such holder in the form of EXHIBIT C
hereto, including the certifications in item (1)(b)
thereof; or
(2) if the holder of such beneficial
interest in a Restricted Global Note proposes to
transfer such beneficial interest to a Person who shall
take delivery thereof in the form of a Definitive Note
that does not bear the Private Placement Legend, a
certificate from such holder in the form of EXHIBIT B
hereto, including the certifications in item (4)
thereof;
and, in each such case set forth in this subparagraph (D), if
the Registrar so requests or if the Applicable Procedures so
require, an opinion of counsel in form reasonably acceptable to
the Registrar to the effect that such exchange or transfer is in
compliance with the Securities Act and that the restrictions on
transfer contained herein and in the Private Placement Legend
are no longer required in order to maintain compliance with the
Securities Act.
(iv) BENEFICIAL INTERESTS IN UNRESTRICTED GLOBAL NOTES TO
UNRESTRICTED DEFINITIVE NOTES. If any holder of a beneficial interest in
an Unrestricted Global Note proposes to exchange such beneficial
interest for a Definitive Note or to transfer such beneficial interest
to a Person
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who takes delivery thereof in the form of a Definitive Note, then, upon
satisfaction of the conditions set forth in Section 2.06(b)(ii) hereof,
the Trustee shall cause the aggregate principal amount of the applicable
Global Note to be reduced accordingly pursuant to Section 2.06(h)
hereof, and the Company shall execute and the Trustee shall authenticate
and deliver to the Person designated in the instructions a Definitive
Note in the appropriate principal amount. Any Definitive Note issued in
exchange for a beneficial interest pursuant to this Section 2.06(c)(iv)
shall be registered in such name or names and in such authorized
denomination or denominations as the holder of such beneficial interest
shall instruct the Registrar through instructions from the Depositary
and the Participant or Indirect Participant. The Trustee shall deliver
such Definitive Notes to the Persons in whose names such Notes are so
registered. Any Definitive Note issued in exchange for a beneficial
interest pursuant to this Section 2.06(c)(iv) shall not bear the Private
Placement Legend.
(d) TRANSFER AND EXCHANGE OF DEFINITIVE NOTES FOR BENEFICIAL
INTERESTS IN GLOBAL NOTES.
(i) RESTRICTED DEFINITIVE NOTES TO BENEFICIAL INTERESTS IN
RESTRICTED GLOBAL NOTES. If any Holder of a Restricted Definitive Note
proposes to exchange such Note for a beneficial interest in a Restricted
Global Note or to transfer such Restricted Definitive Notes to a Person
who takes delivery thereof in the form of a beneficial interest in a
Restricted Global Note, then, upon receipt by the Registrar of the
following documentation:
(A) if the Holder of such Restricted Definitive Note
proposes to exchange such Note for a beneficial interest in a
Restricted Global Note, a certificate from such Holder in the
form of EXHIBIT C hereto, including the certifications in item
(2)(b) thereof;
(B) if such Restricted Definitive Note is being
transferred to a QIB in accordance with Rule 144A under the
Securities Act, a certificate to the effect set forth in EXHIBIT
B hereto, including the certifications in item (1) thereof;
(C) if such Restricted Definitive Note is being
transferred to a Non-U.S. Person in an offshore transaction in
accordance with Rule 903 or Rule 904 under the Securities Act, a
certificate to the effect set forth in EXHIBIT B hereto,
including the certifications in item (2) thereof;
(D) if such Restricted Definitive Note is being
transferred pursuant to an exemption from the registration
requirements of the Securities Act in accordance with Rule 144
under the Securities Act, a certificate to the effect set forth
in EXHIBIT B hereto, including the certifications in item (3)(a)
thereof;
(E) if such Restricted Definitive Note is being
transferred to an Institutional Accredited Investor in reliance
on an exemption from the registration requirements of the
Securities Act other than those listed in subparagraphs (B)
through (D) above, a certificate to the effect set forth in
EXHIBIT B hereto, including the certifications, certificates and
Opinion of counsel required by item (3) thereof, if applicable;
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(F) if such Restricted Definitive Note is being
transferred to the Company or any of its Subsidiaries, a
certificate to the effect set forth in EXHIBIT B hereto,
including the certifications in item (3)(b) thereof; or
(G) if such Restricted Definitive Note is being
transferred pursuant to an effective registration statement
under the Securities Act, a certificate to the effect set forth
in EXHIBIT B hereto, including the certifications in item (3)(c)
thereof,
the Trustee shall cancel the Restricted Definitive Note, increase or
cause to be increased the aggregate principal amount of, in the case of
clause (A) above, the appropriate Restricted Global Note, in the case of
clause (B) above, the 144A Global Note, in the case of clause (C) above,
the Regulation S Global Note, and in all other cases, the IAI Global
Note.
(ii) RESTRICTED DEFINITIVE NOTES TO BENEFICIAL INTERESTS IN
UNRESTRICTED GLOBAL NOTES. A Holder of a Restricted Definitive Note may
exchange such Note for a beneficial interest in an Unrestricted Global
Note or transfer such Restricted Definitive Note to a Person who takes
delivery thereof in the form of a beneficial interest in an Unrestricted
Global Note only if:
(A) such exchange or transfer is effected pursuant
to the Exchange Offer in accordance with the Registration Rights
Agreement and the Holder, in the case of an exchange, or the
transferee, in the case of a transfer, certifies in the
applicable Letter of Transmittal that it is not (1) a
broker-dealer, (2) a Person participating in the distribution of
the Exchange Notes or (3) a Person who is an affiliate (as
defined in Rule 144) of the Company;
(B) such transfer is effected pursuant to the Shelf
Registration Statement in accordance with the Registration
Rights Agreement;
(C) such transfer is effected by a Broker-Dealer
pursuant to the Exchange Offer Registration Statement in
accordance with the Registration Rights Agreement; or
(D) the Registrar receives the following:
(1) if the Holder of such Definitive Notes
proposes to exchange such Notes for a beneficial
interest in the Unrestricted Global Note, a certificate
from such Holder in the form of EXHIBIT C hereto,
including the certifications in item (1)(c) thereof; or
(2) if the Holder of such Definitive Notes
proposes to transfer such Notes to a Person who shall
take delivery thereof in the form of a beneficial
interest in the Unrestricted Global Note, a certificate
from such Holder in the form of EXHIBIT B hereto,
including the certifications in item (4) thereof;
and, in each such case set forth in this subparagraph (D), if
the Registrar so requests or if the Applicable Procedures so
require, an opinion of counsel in form reasonably acceptable to
the Registrar to the effect that such exchange or transfer is in
compliance with the
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Securities Act and that the restrictions on transfer contained
herein and in the Private Placement Legend are no longer
required in order to maintain compliance with the Securities
Act.
Upon satisfaction of the conditions of any of the subparagraphs
in this Section 2.06(d)(ii), the Trustee shall cancel the Definitive
Notes and increase or cause to be increased the aggregate principal
amount of the Unrestricted Global Note.
(iii) UNRESTRICTED DEFINITIVE NOTES TO BENEFICIAL INTERESTS IN
UNRESTRICTED GLOBAL NOTES. A Holder of an Unrestricted Definitive Note
may exchange such Note for a beneficial interest in an Unrestricted
Global Note or transfer such Definitive Notes to a Person who takes
delivery thereof in the form of a beneficial interest in an Unrestricted
Global Note at any time. Upon receipt of a request for such an exchange
or transfer, the Trustee shall cancel the applicable Unrestricted
Definitive Note and increase or cause to be increased the aggregate
principal amount of one of the Unrestricted Global Notes.
If any such exchange or transfer from a Definitive Note to a
beneficial interest is effected pursuant to subparagraphs (ii)(B),
(ii)(D) or (iii) above at a time when an Unrestricted Global Note has
not yet been issued, the Company shall issue and, upon receipt of an
Authentication Order in accordance with Section 2.02 hereof, the Trustee
shall authenticate one or more Unrestricted Global Notes in an aggregate
principal amount equal to the principal amount of Definitive Notes so
transferred.
(e) TRANSFER AND EXCHANGE OF DEFINITIVE NOTES FOR DEFINITIVE NOTES.
Upon request by a Holder of Definitive Notes and such Holder's compliance with
the provisions of this Section 2.06(e), the Registrar shall register the
transfer or exchange of Definitive Notes. Prior to such registration of transfer
or exchange, the requesting Holder shall present or surrender to the Registrar
the Definitive Notes duly endorsed or accompanied by a written instruction of
transfer in form satisfactory to the Registrar duly executed by such Holder or
by its attorney, duly authorized in writing. In addition, the requesting Holder
shall provide any additional certifications, documents and information, as
applicable, required pursuant to the following provisions of this Section
2.06(e).
(i) RESTRICTED DEFINITIVE NOTES TO RESTRICTED DEFINITIVE
NOTES. Any Restricted Definitive Note may be transferred to and
registered in the name of Persons who take delivery thereof in the form
of a Restricted Definitive Note if the Registrar receives the following:
(A) if the transfer will be made pursuant to Rule
144A under the Securities Act, then the transferor must deliver
a certificate in the form of EXHIBIT B hereto, including the
certifications in item (1) thereof;
(B) if the transfer will be made pursuant to Rule
903 or Rule 904, then the transferor must deliver a certificate
in the form of EXHIBIT B hereto, including the certifications in
item (2) thereof; and
(C) if the transfer will be made pursuant to any
other exemption from the registration requirements of the
Securities Act, then the transferor must deliver a certifi-
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cate in the form of EXHIBIT B hereto, including the
certifications, certificates and opinion of counsel required by
item (3) thereof, if applicable.
(ii) RESTRICTED DEFINITIVE NOTES TO UNRESTRICTED DEFINITIVE
NOTES. Any Restricted Definitive Note may be exchanged by the Holder
thereof for an Unrestricted Definitive Note or transferred to a Person
or Persons who take delivery thereof in the form of an Unrestricted
Definitive Note if:
(A) such exchange or transfer is effected pursuant
to the Exchange Offer in accordance with the Registration Rights
Agreement and the Holder, in the case of an exchange, or the
transferee, in the case of a transfer, certifies in the
applicable Letter of Transmittal that it is not (1) a
broker-dealer, (2) a Person participating in the distribution of
the Exchange Notes or (3) a Person who is an affiliate (as
defined in Rule 144) of the Company;
(B) any such transfer is effected pursuant to the
Shelf Registration Statement in accordance with the Registration
Rights Agreement;
(C) any such transfer is effected by a Broker-Dealer
pursuant to the Exchange Offer Registration Statement in
accordance with the Registration Rights Agreement; or
(D) the Registrar receives the following:
(1) if the Holder of such Restricted
Definitive Notes proposes to exchange such Notes for an
Unrestricted Definitive Note, a certificate from such
Holder in the form of EXHIBIT C hereto, including the
certifications in item (1)(d) thereof; or
(2) if the Holder of such Restricted
Definitive Notes proposes to transfer such Notes to a
Person who shall take delivery thereof in the form of an
Unrestricted Definitive Note, a certificate from such
Holder in the form of EXHIBIT B hereto, including the
certifications in item (4) thereof;
and, in each such case set forth in this subparagraph (D), if
the Registrar so requests, an opinion of counsel in form
reasonably acceptable to the Company to the effect that such
exchange or transfer is in compliance with the Securities Act
and that the restrictions on transfer contained herein and in
the Private Placement Legend are no longer required in order to
maintain compliance with the Securities Act.
(iii) UNRESTRICTED DEFINITIVE NOTES TO UNRESTRICTED DEFINITIVE
NOTES. A Holder of Unrestricted Definitive Notes may transfer such Notes
to a Person who takes delivery thereof in the form of an Unrestricted
Definitive Note. Upon receipt of a request to register such a transfer,
the Registrar shall register the Unrestricted Definitive Notes pursuant
to the instructions from the Holder thereof.
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(f) EXCHANGE OFFER. Upon the occurrence of the Exchange Offer in
accordance with the Registration Rights Agreement, the Company shall issue and,
upon receipt of an Authentication Order in accordance with Section 2.02, the
Trustee shall authenticate (i) one or more Unrestricted Global Notes in an
aggregate principal amount equal to the principal amount of the beneficial
interests in the Restricted Global Notes tendered for acceptance by Persons that
certify in the applicable Letters of Transmittal that (x) they are not
broker-dealers, (y) they are not participating in a distribution of the Exchange
Notes and (z) they are not affiliates (as defined in Rule 144) of the Company,
and accepted for exchange in the Exchange Offer and (ii) Definitive Notes in an
aggregate principal amount equal to the principal amount of the Restricted
Definitive Notes accepted for exchange in the Exchange Offer. Concurrently with
the issuance of such Notes, the Trustee shall cause the aggregate principal
amount of the applicable Restricted Global Notes to be reduced accordingly, and
the Company shall execute and the Trustee shall authenticate and deliver to the
Persons designated by the Holders of Definitive Notes so accepted Definitive
Notes in the appropriate principal amount.
(g) LEGENDS. The following legends shall appear on the face of all
Global Notes and Definitive Notes issued under this Agreement unless
specifically stated otherwise in the applicable provisions of this Agreement.
(i) Private Placement Legend.
(A) Except as permitted by subparagraph (B) below,
each Global Note and each Definitive Note (and all Notes issued
in exchange therefor or substitution thereof) shall bear the
legend in substantially the following form:
"THE NOTE (OR ITS PREDECESSORS) EVIDENCED HEREBY WAS ORIGINALLY
ISSUED IN A TRANSACTION EXEMPT FROM REGISTRATION UNDER ▇▇▇▇▇▇▇ ▇ ▇▇
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ SECURITIES ACT OF 1933, AS AMENDED (THE
"SECURITIES ACT"), AND THE NOTE EVIDENCED HEREBY MAY NOT BE
OFFERED, SOLD OR OTHERWISE TRANSFERRED IN THE ABSENCE OF SUCH
REGISTRATION OR AN APPLICABLE EXEMPTION THEREFROM. EACH PURCHASER
OF THE NOTE EVIDENCED HEREBY IS HEREBY NOTIFIED THAT THE SELLER MAY
BE RELYING ON THE EXEMPTION FROM THE PROVISIONS OF SECTION 5 OF THE
SECURITIES ACT PROVIDED BY RULE 144A THEREUNDER OR ANOTHER
EXEMPTION UNDER THE SECURITIES ACT. THE HOLDER OF THE NOTE
EVIDENCED HEREBY AGREES FOR THE BENEFIT OF
TRANSMONTAIGNE INC. (THE
"COMPANY") THAT (A) SUCH NOTE MAY BE RESOLD, PLEDGED OR OTHERWISE
TRANSFERRED ONLY (i) (a) TO A PERSON WHO THE SELLER REASONABLY
BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER (AS DEFINED IN RULE
144A UNDER THE SECURITIES ACT), PURCHASING FOR ITS OWN ACCOUNT IN A
TRANSACTION MEETING THE REQUIREMENTS OF RULE 144A UNDER THE
SECURITIES ACT, (b) IN A TRANSACTION MEETING THE REQUIREMENTS OF
RULE 144 OF THE SECURITIES ACT, (c) OUTSIDE THE UNITED STATES TO A
FOREIGN PERSON IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE
903 OR RULE 904 OF REGULATION S UNDER THE SECURITIES ACT, (d) TO AN
"ACCREDITED INVESTOR" WITHIN
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THE MEANING OF RULE 501(A)(1), (2), (3) OR (7) OF REGULATION D
UNDER THE SECURITIES ACT (AN "INSTITUTIONAL ACCREDITED INVESTOR")
THAT IS PURCHASING AT LEAST $100,000 OF THE NOTES FOR ITS OWN
ACCOUNT OR FOR THE ACCOUNT OF AN INSTITUTIONAL ACCREDITED INVESTOR
AND, PRIOR TO SUCH TRANSFER FURNISHES THE TRUSTEE A SIGNED LETTER
CONTAINING CERTAIN REPRESENTATIONS AND AGREEMENTS RELATING TO THE
TRANSFER OF THIS NOTE (THE FORM OF WHICH MAY BE OBTAINED FROM THE
TRUSTEE), IF THE COMPANY SO REQUESTS OR (e) IN ACCORDANCE WITH
ANOTHER EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE
SECURITIES ACT PROVIDED THAT IN THE CASE OF A TRANSFER PURSUANT TO
CLAUSE (e) SUCH TRANSFER IS SUBJECT TO THE RECEIPT BY THE REGISTRAR
(AND THE COMPANY, IF IT SO REQUESTS) OF A CERTIFICATION OF THE
TRANSFEROR AND AN OPINION OF COUNSEL TO THE EFFECT THAT SUCH
TRANSFER IS IN COMPLIANCE WITH THE SECURITIES ACT, (ii) TO THE
COMPANY OR (iii) PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT
UNDER THE SECURITIES ACT AND, IN EACH CASE, IN ACCORDANCE WITH ANY
APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES OR ANY
OTHER APPLICABLE JURISDICTION AND THE INDENTURE GOVERNING THE NOTES
AND (B) THE HOLDER WILL, AND EACH SUBSEQUENT HOLDER IS REQUIRED TO,
NOTIFY ANY PURCHASER FROM IT OF THE NOTE EVIDENCED HEREBY OF THE
RESALE RESTRICTIONS SET FORTH IN (A) ABOVE."
(B) Notwithstanding the foregoing, any Global Note
or Definitive Note issued pursuant to subparagraphs (c)(iii),
(c)(iv), (d)(ii), (d)(iii), (e)(ii), (e)(iii) or (f) to this
Section 2.06 (and all Notes issued in exchange therefor or
substitution thereof) shall not bear the Private Placement
Legend.
(ii) GLOBAL NOTE LEGEND. Each Global Note shall bear a legend
in substantially the following form:
"THIS GLOBAL NOTE IS HELD BY THE DEPOSITARY (AS DEFINED IN THE
INDENTURE GOVERNING THIS NOTE) OR ITS NOMINEE IN CUSTODY FOR THE
BENEFIT OF THE BENEFICIAL OWNERS HEREOF, AND IS NOT TRANSFERABLE TO
ANY PERSON UNDER ANY CIRCUMSTANCES EXCEPT THAT (I) THE TRUSTEE MAY
MAKE SUCH NOTATIONS HEREON AS MAY BE REQUIRED PURSUANT TO SECTION
2.07 OF THE INDENTURE, (II) THIS GLOBAL NOTE MAY BE EXCHANGED IN
WHOLE BUT NOT IN PART PURSUANT TO SECTION 2.06(a) OF THIS
INDENTURE, (III) THIS GLOBAL NOTE MAY BE DELIVERED TO THE TRUSTEE
FOR CANCELLATION PURSUANT TO SECTION 2.11 OF THIS INDENTURE AND
(IV) THIS GLOBAL NOTE MAY BE TRANSFERRED TO A SUCCESSOR DEPOSITARY
WITH THE PRIOR WRITTEN CONSENT OF THE COMPANY."
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(iii) REGULATION S TEMPORARY GLOBAL NOTE LEGEND. The
Regulation S Temporary Global Note shall bear a legend in substantially
the following form:
"THE RIGHTS ATTACHING TO THIS REGULATION S TEMPORARY GLOBAL NOTE,
AND THE CONDITIONS AND PROCEDURES GOVERNING ITS EXCHANGE FOR
CERTIFICATED NOTES, ARE AS SPECIFIED IN THE INDENTURE (AS DEFINED
HEREIN). NEITHER THE HOLDER NOR THE BENEFICIAL OWNERS OF THIS
REGULATION S TEMPORARY GLOBAL NOTE SHALL BE ENTITLED TO RECEIVE
PAYMENT OF INTEREST HEREON."
(h) CANCELLATION AND/OR ADJUSTMENT OF GLOBAL NOTES. At such time as
all beneficial interests in a particular Global Note have been exchanged for
Definitive Notes or a particular Global Note has been redeemed, repurchased or
canceled in whole and not in part, each such Global Note shall be returned to or
retained and canceled by the Trustee in accordance with Section 2.11 hereof. At
any time prior to such cancellation, if any beneficial interest in a Global Note
is exchanged for or transferred to a Person who will take delivery thereof in
the form of a beneficial interest in another Global Note or for Definitive
Notes, the principal amount of Notes represented by such Global Note shall be
reduced accordingly and an endorsement shall be made on such Global Note by the
Trustee or by the Depositary at the direction of the Trustee to reflect such
reduction; and if the beneficial interest is being exchanged for or transferred
to a Person who will take delivery thereof in the form of a beneficial interest
in another Global Note, such other Global Note shall be increased accordingly
and an endorsement shall be made on such Global Note by the Trustee or by the
Depositary at the direction of the Trustee to reflect such increase.
(i) GENERAL PROVISIONS RELATING TO TRANSFERS AND EXCHANGES.
(i) To permit registrations of transfers and exchanges, the
Company shall execute and the Trustee shall authenticate Global Notes
and Definitive Notes upon the Company's order or at the Registrar's
request.
(ii) No service charge shall be made to a holder of a
beneficial interest in a Global Note or to a Holder of a Definitive Note
for any registration of transfer or exchange, but the Company may
require payment of a sum sufficient to cover any transfer tax or similar
governmental charge payable in connection therewith (other than any such
transfer taxes or similar governmental charge payable upon exchange or
transfer pursuant to Sections 2.10, 3.06, 4.15 and 9.05 hereof).
(iii) The Registrar shall not be required to register the
transfer of or exchange any Note selected for redemption in whole or in
part, except the unredeemed portion of any Note being redeemed in part.
(iv) All Global Notes and Definitive Notes issued upon any
registration of transfer or exchange of Global Notes or Definitive Notes
shall be the valid obligations of the Company, evidencing the same debt,
and entitled to the same benefits under this Agreement, as the Global
Notes or Definitive Notes surrendered upon such registration of transfer
or exchange.
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(v) The Company shall not be required (A) to issue, to
register the transfer of or to exchange any Notes during a period
beginning at the opening of business 15 days before the day of any
selection of Notes for redemption under Section 3.02 hereof and ending
at the close of business on the day of selection, (B) to register the
transfer of or to exchange any Note so selected for redemption in whole
or in part, except the unredeemed portion of any Note being redeemed in
part or (C) to register the transfer of or to exchange a Note between a
record date and the next succeeding Interest Payment Date.
(vi) Prior to due presentment for the registration of a
transfer of any Note, the Trustee, any Agent and the Company may deem
and treat the Person in whose name any Note is registered as the
absolute owner of such Note for the purpose of receiving payment of
principal of and interest on such Notes and for all other purposes, and
none of the Trustee, any Agent or the Company shall be affected by
notice to the contrary.
(vii) The Trustee shall authenticate Global Notes and
Definitive Notes in accordance with the provisions of Section 2.02
hereof.
(viii) All certifications, certificates and opinions of counsel
required to be submitted to the Registrar pursuant to this Section 2.06
to effect a registration of transfer or exchange may be submitted by
facsimile.
(ix) Each Holder agrees to indemnify the Company and the
Trustee against any liability that may result from the transfer,
exchange or assignment by such Holder of such Holder's Note in violation
of any provision of this Agreement and/or applicable Unites States
federal or state securities law.
(x) The Trustee shall have no obligation or duty to monitor,
determine or inquire as to compliance with any restrictions on transfer
imposed under this Agreement or under applicable law with respect to any
transfer of any interest in any Note (including any transfers between or
among Depositary Participants or beneficial owners of interests in any
Global Note) other than to require delivery of such certificates and
other documentation or evidence as are expressly required by, and to do
so if and when expressly required by the terms of, this Agreement, and
to examine the same to determine substantial compliance as to form with
the express requirements hereof.
2.07 REPLACEMENT NOTES.
If any mutilated Note is surrendered to the Trustee or the Company and
the Trustee receives evidence to its satisfaction of the destruction, loss or
theft of any Note, the Company shall issue and the Trustee, upon receipt of an
Authentication Order, shall authenticate a replacement Note if the Trustee's
requirements are met. An indemnity bond must be supplied by the Holder that is
sufficient in the judgment of the Trustee and the Company to protect the
Company, the Trustee, any Agent and any authenticating agent from any loss that
any of them may suffer if a Note is replaced. The Company may charge for its
expenses in replacing a Note.
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Every replacement Note is an additional obligation of the Company and
shall be entitled to all of the benefits of this Agreement equally and
proportionately with all other Notes duly issued hereunder.
2.08 OUTSTANDING NOTES.
The Notes outstanding at any time are all the Notes authenticated by
the Trustee except for those canceled by it, those delivered to it for
cancellation, those reductions in the interest in a Global Note effected by the
Trustee in accordance with the provisions hereof, and those described in this
Section as not outstanding. Except as set forth in Section 2.09 hereof, a Note
does not cease to be outstanding because the Company or an Affiliate of the
Company holds the Note; however, Notes held by the Company or a Subsidiary of
the Company shall not be deemed to be outstanding for purposes of Section
3.07(b) hereof.
If a Note is replaced pursuant to Section 2.07 hereof, it ceases to be
outstanding unless the Trustee receives proof satisfactory to it that the
replaced Note is held by a bona fide purchaser.
If the principal amount of any Note is considered paid under Section
4.01 hereof, it ceases to be outstanding and interest on it ceases to accrue.
If the Paying Agent (other than the Company, a Subsidiary or an
Affiliate of any thereof) holds, on a redemption date or maturity date, money
sufficient to pay 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.
2.09 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 as to which a Responsible Officer of the Trustee has actual knowledge
are so owned shall be so disregarded.
2.10 TEMPORARY NOTES.
Until certificates representing Notes are ready for delivery, the
Company may prepare and the Trustee, upon receipt of an Authentication Order,
shall authenticate temporary Notes. Temporary Notes shall be substantially in
the form of certificated Notes but may have variations that the Company
considers appropriate for temporary Notes and as shall 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.
Holders of temporary Notes shall be entitled to all of the benefits of
this Agreement.
2.11 CANCELLATION.
The Company at any time may deliver Notes to the Trustee for
cancellation. The Registrar and Paying Agent shall forward to the Trustee any
Notes surrendered to them for registration of
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transfer, exchange or payment. The Trustee and no one else shall cancel all
Notes surrendered for registration of transfer, exchange, payment, replacement
or cancellation and shall dispose of canceled Notes in accordance with its
procedures for the disposition of canceled securities in effect as of the date
of such disposition (subject to the record retention requirement of the Exchange
Act). Certification of the disposition of all canceled Notes shall be delivered
to the Company. The Company may not issue new Notes to replace Notes that it has
paid or that have been delivered to the Trustee for cancellation.
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 4.01 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
interest to be paid.
2.13 CUSIP NUMBERS.
The Company in issuing the Notes may use "CUSIP" numbers (if then
generally in use), and, if so, the Trustee shall use "CUSIP" numbers in notices
of redemption as a convenience to Holders; PROVIDED that any such notice may
state that no representation is made as to the correctness of such numbers
either as printed on the Notes or as contained in any notice of a redemption and
that reliance may be placed only on the other identification numbers printed on
the Notes, and any such redemption shall not be affected by any defect in or
omission of such numbers. The Company will promptly notify the Trustee of any
change in the "CUSIP" numbers.
ARTICLE III
REDEMPTION AND PREPAYMENT
3.01 NOTICES TO TRUSTEE.
If the Company elects to redeem Notes pursuant to the optional
redemption provisions of Section 3.07 hereof, it shall furnish to the Trustee,
at least 30 days but not more than 60 days before a redemption date, an
Officers' Certificate setting forth (i) the clause of this Agreement pursuant to
which the redemption shall occur, (ii) the redemption date, (iii) the principal
amount of Notes to be redeemed and (iv) the redemption price.
3.02 SELECTION OF NOTES TO BE REDEEMED.
If less than all of the Notes are to be redeemed or purchased in an
offer to purchase at any time, the Trustee shall select the Notes to be redeemed
or purchased among the Holders of the Notes in compli-
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ance 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 in accordance with any other method the Trustee considers
fair and appropriate. 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. Further, in the
event of a partial redemption in accordance with Sections 3.07(a) or (b) hereof,
selection of the Notes or portions thereof for redemption shall be made by the
Trustee only on a PRO RATA basis or on as nearly a PRO RATA basis as is
practicable (subject to the procedures of The Depository Trust Company), unless
such method is otherwise prohibited.
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 redeemed. Except as provided in the preceding sentence,
provisions of this Agreement that apply to Notes called for redemption also
apply to portions of Notes called for redemption.
3.03 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 its registered
address.
The notice shall identify the Notes (including the CUSIP number, if
any) to be redeemed and shall state:
(a) the redemption date;
(b) the redemption price;
(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;
(g) the paragraph of the Notes and/or Section of this Agreement pursuant to
which the Notes called for redemption are being redeemed; and
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(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 that the Company
shall have delivered to the Trustee, at least 15 days prior to the date of the
mailing of such notice, an Officers' Certificate requesting that the Trustee
give such notice and setting forth the information to be stated in such notice
as provided in this Section 3.03.
3.04 EFFECT OF NOTICE OF REDEMPTION.
Once notice of redemption is mailed in accordance with Section 3.03
hereof, Notes called for redemption become irrevocably due and payable on the
redemption date at the redemption price. A notice of redemption may not be
conditional.
3.05 DEPOSIT OF REDEMPTION PRICE.
One Business Day prior to the redemption date, the Company shall
deposit with the Trustee or with the Paying Agent money sufficient to pay the
redemption price of and accrued interest on all Notes to be redeemed on that
date. The Trustee or the Paying Agent shall promptly return to the Company any
money deposited with the Trustee or the Paying Agent by the Company in excess of
the amounts necessary to pay the redemption price of, and accrued interest on,
all Notes to be redeemed.
If the Company complies with the provisions of the preceding paragraph,
on and after the redemption date, interest shall cease to accrue on the Notes or
the portions of Notes called for redemption. 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 4.01 hereof.
3.06 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.
3.07 OPTIONAL REDEMPTION.
(a) At any time prior to June 1, 2007, the Company, at its option,
may redeem in whole or in part the Notes at a redemption price equal to the sum
of (i) the principal amount thereof, plus (ii) accrued and unpaid interest, if
any, to the redemption date, plus (iii) the Applicable Premium at the redemption
date.
(b) Except as set forth in clauses (a) and (c) of this Section 3.07,
the Company shall not have the option to redeem the Notes pursuant to this
Section 3.07 prior to June 1, 2007. On or after June 1,
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2007, the Company shall have the option to redeem the Notes, in whole or in
part, 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 June 1
of the years indicated below:
Year Percentage
---- ----------
2007................................................. 104.563%
2008................................................. 102.281%
2009 and thereafter.................................. 100.000%
(c) Notwithstanding the provisions of clauses (a) and (b) of this
Section 3.07, at any time on or prior to June 1, 2006, the Company may on one or
more occasions redeem up to an aggregate of 35% of the principal amount of Notes
issued under this Agreement at a redemption price equal to 109.125% of the
principal amount thereof plus accrued and unpaid interest to the redemption
date, with the net cash proceeds of one or more Qualified Equity Offerings of
the Company, to the extent the net cash proceeds thereof are contributed to the
Company as a capital contribution to the common equity of the Company; PROVIDED
that at least 65% of the aggregate principal amount of the Notes issued remains
outstanding immediately after the occurrence of such redemption and that such
redemption occurs within 90 days of the date of the closing of such Qualified
Equity Offering.
(d) Any redemption pursuant to this Section 3.07 shall be made
pursuant to the provisions of Section 3.01 through 3.06 hereof.
3.08 MANDATORY REDEMPTION.
Neither the Company nor the Guarantors shall be required to make
mandatory redemption or sinking fund payments with respect to the Notes.
ARTICLE IV
COVENANTS
4.01 PAYMENT OF NOTES.
The Company shall pay or cause to be paid the principal of, premium, if
any, and interest on the Notes on the dates and in the manner provided in the
Notes. Principal, premium, if any, and interest shall be considered paid on the
date due if the Paying Agent, if other than the Company or a Subsidiary thereof,
holds as of 12:00 noon Eastern Time on the due date money deposited by the
Company in immediately available funds and designated for and sufficient to pay
all principal, premium, if any, and interest then due. The Company shall pay all
Additional Interest, if any, in the same manner on the dates and in the amounts
set forth in the Registration Rights Agreement.
The Company shall pay interest (including post-petition interest in any
proceeding under any Bankruptcy Law) on overdue principal at the rate equal to
1% per annum in excess of the then applicable
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interest rate on the Notes to the extent lawful; it shall pay interest
(including post-petition interest in any proceeding under any Bankruptcy Law) on
overdue installments of interest (without regard to any applicable grace period)
at the same rate to the extent lawful.
4.02 MAINTENANCE OF OFFICE OR AGENCY.
The Company shall maintain in the Borough of Manhattan, The City of
New
York, an office or agency (which may be an office of the Trustee or an affiliate
of the Trustee, Registrar or co-registrar) where 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 Agreement 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
that no such designation or rescission shall in any manner relieve the Company
of its obligation to maintain an office or agency in the Borough of Manhattan,
The City of
New York for such purposes. The Company shall give prompt written
notice to the Trustee of any such designation or rescission and of any change in
the location of any such other office or agency.
The Company hereby designates the Corporate Trust Office of the Trustee
as one such office or agency of the Company in accordance with Section 2.03.
4.03 REPORTS.
(a) Whether or not required by the rules and regulations of the SEC,
so long as any Notes are outstanding, the Company shall furnish or make
available to the Holders of Notes within the time periods specified in the SEC's
rules and regulations (i) all quarterly and annual financial information that
would be required to be contained in a filing with the SEC on Forms 10-Q and
10-K if the Company and its Subsidiaries 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 consolidated 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 the SEC on Form 8-K if the Company and its Subsidiaries were
required to file such reports. In addition, following consummation of the
Exchange Offer, whether or not required by the rules and regulations of the SEC,
the Company shall file a copy of all such information and reports with the SEC
for public availability within the time periods specified in the SEC's rules and
regulations (unless the SEC will not accept such a filing) and make such
information available to securities analysts and prospective investors upon
request if not then publicly available. The Company shall at all times comply
with TIA Sections 314(a). Delivery by the Company of reports, information and
documents to the Trustee pursuant to TIA Section 314(a) shall be for
informational purposes only and the Trustee's receipt of such shall not
constitute constructive notice of any information contained therein or
determinable from information contained therein, including the Company's
compliance with any of its covenants hereunder (as to which the Trustee is
entitled to rely exclusively on Officers' Certificates).
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(b) For so long as any Notes remain outstanding, the Company and the
Guarantors shall furnish to the Holders and to securities analysts and
prospective investors, upon their request, the information required to be
delivered pursuant to Rule 144A(d)(4) under the Securities Act.
(c) Notwithstanding the foregoing, such requirements shall be deemed
satisfied prior to the commencement of the Exchange Offer or the effectiveness
of the Shelf Registration Statement by the filing with the SEC of the
registration statement relating to the exchange offer and/or the Shelf
Registration Statement, and any amendments thereto, of the Securities; PROVIDED
that any such Registration Statement is filed within the time periods specified
in the Registration Rights Agreement.
4.04 COMPLIANCE CERTIFICATE.
(a) The Company shall deliver to the Trustee, within 100 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 Agreement, 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 Agreement and is not in default in the performance or observance of any of
the terms, provisions and conditions of this Agreement (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, if any, on the Notes is
prohibited or if such event has occurred, a description of the event and what
action the Company is taking or proposes to take with respect thereto.
(b) So long as not contrary to the then current recommendations of
the American Institute of Certified Public Accountants, the year-end financial
statements delivered pursuant to Section 4.03(a) above shall be accompanied by a
written statement of the Company's independent public accountants (who shall be
a firm of established national reputation) that in making the examination
necessary for certification of such financial statements, nothing has come to
their attention that would lead them to believe that the Company has violated
any provisions of Article Four or Article Five 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, as soon as possible, and in any event within five days
after any Officer becomes 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.
4.05 TAXES.
The Company shall pay, and shall cause each of its Subsidiaries to pay,
prior to delinquency, all material taxes, assessments, and governmental levies
except such as are contested in good faith and by
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appropriate proceedings or where the failure to effect such payment is not
adverse in any material respect to the Holders of the Notes.
4.06 STAY, EXTENSION AND USURY LAWS.
The Company and each of the Guarantors covenants (to the extent that it
may lawfully do so) that it shall not at any time insist upon, plead, or in any
manner whatsoever claim or take the benefit or advantage of, any stay, extension
or usury law wherever enacted, now or at any time hereafter in force, that may
affect the covenants or the performance of this Agreement; and the Company and
each of the Guarantors (to the extent that it may lawfully do so) hereby
expressly waives all benefit or advantage of any such law, and covenants that it
shall not, by resort to any such law, hinder, delay or impede the execution of
any power herein granted to the Trustee, but shall suffer and permit the
execution of every such power as though no such law has been enacted.
4.07 RESTRICTED PAYMENTS.
(a) The Company shall not, and shall not permit any Restricted
Subsidiary to, directly or indirectly, make any Restricted Payment if
immediately after giving PRO FORMA effect to such Restricted Payment:
(i) a Default shall have occurred and be continuing or shall
occur as a consequence thereof;
(ii) the Company cannot incur $1.00 of additional
Indebtedness pursuant to the Coverage Ratio Exception; or
(iii) the amount of such Restricted Payment, when added to the
aggregate amount of all other Restricted Payments made after the Issue
Date (other than Restricted Payments made pursuant to clause (ii),
(iii), (iv), (v), (vi), (vii) and (viii) of Section 4.07(b) below),
exceeds the sum (the "RESTRICTED PAYMENTS BASKET") of (without
duplication):
(A) 50% of Consolidated Net Income for the period
(taken as one accounting period) commencing on the first day of
the first full fiscal quarter commencing after the Issue Date to
and including the last day of the fiscal quarter ended
immediately prior to the date of such calculation for which
consolidated financial statements are available (or, if such
Consolidated Net Income shall be a deficit, minus 100% of such
aggregate deficit), PLUS
(B) 100% of the aggregate net cash proceeds received
by the Company either (x) as contributions to the common equity
of the Company after the Issue Date or (y) from the issuance and
sale of Qualified Equity Interests after the Issue Date, other
than any such proceeds which are used to redeem Notes in
accordance with Section 3.07(c) hereof, PLUS
(C) the aggregate amount by which Indebtedness
(other than any Subordinated Indebtedness) incurred by the
Company or any Restricted Subsidiary subsequent to
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the Issue Date is reduced on the Company's balance sheet upon
the conversion or exchange (other than by a Subsidiary of the
Company) into Qualified Equity Interests (less the amount of any
cash, or the fair value of assets, distributed by the Company or
any Restricted Subsidiary upon such conversion or exchange),
PLUS
(D) in the case of the disposition or repayment of
or return on any Investment that was treated as a Restricted
Payment made after the Issue Date, an amount (to the extent not
included in the computation of Consolidated Net Income) equal to
the lesser of (1) the return of capital with respect to such
Investment and (2) the amount of such Investment that was
treated as a Restricted Payment, in either case, less the cost
of the disposition of such Investment and net of taxes, PLUS
(E) upon a Redesignation of an Unrestricted
Subsidiary as a Restricted Subsidiary, the lesser of (1) the
Fair Market Value of the Company's proportionate interest in
such Subsidiary immediately following such Redesignation, and
(2) the aggregate amount of the Company's Investments in such
Subsidiary to the extent such Investments reduced the Restricted
Payments Basket and were not previously repaid or otherwise
reduced.
(b) The foregoing provisions will not prohibit: (i) the payment by
the Company or any Restricted Subsidiary of any dividend within 60 days after
the date of declaration thereof, if on the date of declaration the payment would
have complied with the provisions of this Agreement, (ii) the purchase,
redemption or other acquisition or retirement of any Equity Interests of the
Company or any Restricted Subsidiary in exchange for, or out of the proceeds of
the substantially concurrent issuance and sale of, Qualified Equity Interests,
(iii) the purchase, redemption, defeasance, acquisition or other retirement of
Subordinated Indebtedness of the Company or any Restricted Subsidiary (A) in
exchange for, or out of the proceeds of the substantially concurrent issuance
and sale of, Qualified Equity Interests or (B) in exchange for, or out of the
proceeds of the substantially concurrent incurrence of, Refinancing Indebtedness
permitted to be incurred under Section 4.09 hereof and the other terms of this
Agreement, (iv) the redemption, whether optional or mandatory, of the Series A
Convertible Preferred Stock and the mandatory redemption at maturity of the
Series B Convertible Preferred Stock in accordance with the respective terms
thereof, (v) the payment by the Company of pay-in-kind dividends in respect of
the Series A Convertible Preferred Stock and the Series B Convertible Preferred
Stock, (vi) the payment by the Company of cash dividends in respect of the
Series A Convertible Preferred Stock and the Series B Convertible Preferred
Stock at dividend rates not to exceed 5% per annum and 6% per annum,
respectively, (vii) repurchases, acquisitions or retirements of Equity Interests
(A) occurring or deemed to occur upon, or intended to be used to satisfy
issuances of Equity Interests upon, the exercise of stock options or the
purchase of restricted stock or similar rights under employee benefit plans, if
the Equity Interests represent a portion of the exercise or purchase price
thereof; or (B) occurring or deemed to occur and intended to be used to satisfy
the tax payment obligations of a participant which occur upon vesting of
restricted stock or similar rights under the Company's employee benefit plans,
(viii) the purchase, redemption, retirement of Equity Interests of the Company
held by officers, directors or employees or former officers, directors or
employees of the Company or any of its Restricted Subsidiaries (or their
transferees, estates or beneficiaries under their estates), upon or after their
death, disability, retirement, severance or termination of employment or
service; PROVIDED that the aggregate consideration paid for all such redemptions
shall not exceed $2.0 million during any fiscal year, PROVIDED, HOWEVER, that
unutilized amounts for such fiscal year may be
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carried forward to the following fiscal year and PROVIDED, FURTHER, HOWEVER,
that in any such fiscal year in which such carry-forward has occurred, the
amount of consideration paid for all such redemptions shall not exceed $4.0
million, or (ix) additional Restricted Payments not to exceed $15.0 million in
the aggregate; PROVIDED that (y) in the case of any Restricted Payment pursuant
to clause (iii), (iv) and (vi) above, no Default shall have occurred and be
continuing or occur as a consequence thereof and (z) no issuance and sale of
Qualified Equity Interests pursuant to clause (ii) or (iii) above shall increase
the Restricted Payments Basket.
(c) For purposes of determining compliance with this Section 4.07,
in the event that any payment or other action meets the criteria of more than
one of the categories of Permitted Investments and/or Restricted Payments
permitted by this Agreement, the Company, in its sole discretion, may order and
classify all or any portion of such Permitted Investments and/or Restricted
Payments on the date of their incurrence in any manner that then complies with
this Agreement and/or from time to time may reorder and reclassify all or any
portion of any item of Permitted Investments and/or Restricted Payments in any
manner that complies with this Agreement at the date of any such reordering or
reclassification and, in each case, the Company shall be entitled, at its
option, to divide and classify or reclassify any item of Permitted Investments
and/or Restricted Payments in more than one of the types of Permitted
Investments and/or Restricted Payments permitted under this Agreement in any
manner that complies with this Agreement at the time of such division and
classification or reclassification.
4.08 DIVIDEND AND OTHER PAYMENT RESTRICTIONS AFFECTING SUBSIDIARIES.
The Company shall not, and shall not permit any Restricted Subsidiary
to, directly or indirectly, create or otherwise cause or permit to exist or
become effective any consensual encumbrance or consensual restriction on the
ability of any Restricted Subsidiary to: (a) pay dividends or make any other
distributions on or in respect of its Equity Interests; (b) make loans or
advances or pay any Indebtedness or other obligation owed to the Company or any
other Restricted Subsidiary; or (c) transfer any of its assets to the Company or
any other Restricted Subsidiary, except for:
(i) encumbrances or restrictions existing under or by reason
of applicable law;
(ii) encumbrances or restrictions existing under this
Agreement, the Notes and the Note Guarantees;
(iii) non-assignment provisions of any contract, license,
permit or lease entered into in the ordinary course of business;
(iv) encumbrances or restrictions existing under agreements
existing on the date of this Agreement (including, without limitation,
the Credit Agreement) as in effect on that date;
(v) restrictions on the transfer of assets subject to any
Lien permitted under this Agreement imposed by the holder of such Lien
or the exercise of or the right to exercise customary remedies with
respect to such assets;
(vi) encumbrances or restrictions placed on inventory held
for transfer under exchange agreements;
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(vii) customary encumbrances or restrictions placed on initial
NYMEX margin deposits or imposed by margin loans;
(viii) encumbrances or restrictions placed on petroleum racks
owned jointly with BP Amoco;
(ix) encumbrances or restrictions relating to the Company's
(or its Subsidiaries') exchange trading privileges;
(x) restrictions or cash or other deposits imposed by
customers under contracts entered into in the ordinary course of
business;
(xi) restrictions on the transfer of assets imposed under any
agreement to sell such assets including Equity Interests of a Subsidiary
permitted under this Agreement to any Person pending the closing of such
sale;
(xii) any instrument governing Acquired Indebtedness or any
agreement (including any Equity Interest) relating to any property,
asset or business acquired by the Company or any of its Subsidiaries,
which restrictions existed at the time of the acquisition, were not put
in place in connection with or in anticipation of such acquisition and
which encumbrance or restriction is not applicable to any Person (and
its Subsidiaries), or the properties or assets of any Person, other than
the Person or the properties or assets of the Person (and its
Subsidiaries) so acquired or to any property, asset or business, other
than the property, assets or business so acquired;
(xiii) any other agreement governing Indebtedness entered into
after the Issue Date that contains encumbrances and restrictions that
are not materially more restrictive with respect to any Restricted
Subsidiary than those in effect on the Issue Date with respect to that
Restricted Subsidiary pursuant to agreements in effect on the Issue
Date;
(xiv) customary provisions in partnership agreements, limited
liability company organizational governance documents, joint venture
agreements and other similar agreements entered into in the ordinary
course of business that restrict the transfer of ownership interests in,
or property of, such partnership, limited liability company, joint
venture or similar Person;
(xv) Purchase Money Indebtedness incurred in compliance with
Section 4.09 hereof that impose restrictions of the nature described in
clause (c) above on the assets acquired;
(xvi) any encumbrance or restriction under any instrument
governing Indebtedness of a Restricted Subsidiary that is a Foreign
Subsidiary, which encumbrance or restriction is not applicable to any
Persons, or the property or assets of any Persons, other than Restricted
Subsidiaries that are Foreign Subsidiaries; and
(xvii) any encumbrances or restrictions imposed by any
amendments or refinancings of the contracts, instruments or obligations
referred to in clauses (i) through (xvi) above; PROVIDED that such
amendments or refinancings are, in the good faith judgment of the
Company's Board of
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Directors, not materially more restrictive with respect to such
encumbrances and restrictions than those prior to such amendment or
refinancing.
4.09 LIMITATION ON ADDITIONAL INDEBTEDNESS.
(a) The Company shall not, and shall not permit any Restricted
Subsidiary to, directly or indirectly, incur any Indebtedness; PROVIDED that the
Company or any Guarantor may incur additional Indebtedness if, after giving
effect thereto, the Consolidated Interest Coverage Ratio would be at least 2.25
to 1.00 (the "COVERAGE RATIO EXCEPTION").
(b) Notwithstanding clause (a) above, each of the following shall be
permitted (the "PERMITTED INDEBTEDNESS"):
(i) Indebtedness of the Company and any Guarantor under the
Credit Agreement in an aggregate amount at any time outstanding not to
exceed the greater of (x) $250.0 million reduced by the aggregate amount
of Net Available Proceeds applied to repayments under the Credit
Agreement in accordance with Section 4.10 hereof that result in a
permanent reduction in commitments thereunder and (y) the amount of the
Borrowing Base as of the date of such incurrence;
(ii) the Notes issued on the Issue Date and the Note
Guarantees;
(iii) Indebtedness of the Company and the Restricted
Subsidiaries to the extent outstanding on the Issue Date (other than
Indebtedness referred to in clauses (i) and (ii) above, and after giving
effect to the intended use of proceeds of the Notes);
(iv) Indebtedness under Hedging Obligations; PROVIDED that
(A) with respect to any interest rate swap agreement, interest rate
collar agreement or other similar agreement or arrangement designed to
protect such Person against fluctuations in interest rates, (1) such
Hedging Obligations relate to payment obligations on Indebtedness
otherwise permitted to be incurred by this Section 4.09, and (2) the
notional principal amount of such Hedging Obligations at the time
incurred does not exceed the principal amount of the Indebtedness to
which such Hedging Obligation relates and (B) with respect to any
forward contract, commodity swap agreement, commodity option agreement
or other similar agreement or arrangement, such Hedging Obligation is
reasonably designed to protect the Company or any of its Restricted
Subsidiaries against fluctuations in commodity prices (subject to
variations in time or between products in the ordinary course of
business consistent with the Company's past practice), and in the case
of both clauses (A) and (B) above, are entered into in the ordinary
course of business;
(v) Indebtedness of the Company owed to a Restricted
Subsidiary and Indebtedness of any Restricted Subsidiary owed to the
Company or any other Restricted Subsidiary; PROVIDED, HOWEVER, that upon
any such Restricted Subsidiary ceasing to be a Restricted Subsidiary or
such Indebtedness being owed to any Person other than the Company or a
Restricted Subsidiary, the Company or such Restricted Subsidiary, as
applicable, shall be deemed to have incurred Indebtedness not permitted
by this clause (v);
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(vi) Indebtedness in respect of bid, performance or surety
bonds issued for the account of the Company or any Restricted Subsidiary
in the ordinary course of business, including guarantees or obligations
of the Company or any Restricted Subsidiary with respect to letters of
credit supporting such bid, performance or surety obligations (in each
case other than for an obligation for money borrowed);
(vii) Purchase Money Indebtedness incurred by the Company or
any Restricted Subsidiary, and Refinancing Indebtedness thereof, in an
aggregate amount not to exceed at any time outstanding the greater of
(A) $25.0 million and (B) 5.0% of Consolidated Net Tangible Assets at
that time;
(viii) Indebtedness arising from the honoring by a bank or
other financial institution of a check, draft or similar instrument
inadvertently (except in the case of daylight overdrafts) drawn against
insufficient funds in the ordinary course of business; PROVIDED,
HOWEVER, that such Indebtedness is extinguished within five Business
Days of incurrence;
(ix) Indebtedness arising in connection with endorsement of
instruments for deposit in the ordinary course of business;
(x) Refinancing Indebtedness with respect to Indebtedness
incurred pursuant to the Coverage Ratio Exception or clause (ii) or
(iii) above;
(xi) Indebtedness in respect of commodities margin loans
extended by commodities brokers in an aggregate amount not to exceed at
any time outstanding the greater of (A) $25.0 million and (B) 5.0% of
Consolidated Net Tangible Assets at that time;
(xii) Indebtedness represented by in-kind dividends in the
form of Series A Convertible Preferred Stock and Series B Convertible
Preferred Stock; and
(xiii) Indebtedness of the Company or any Restricted Subsidiary
in an aggregate amount not to exceed $15.0 million at any time
outstanding.
(c) For purposes of determining compliance with this Section 4.09,
in the event that an item of Indebtedness meets the criteria of more than one of
the categories of Permitted Indebtedness described in clauses (b)(i) through
(b)(xiii) above or is entitled to be incurred pursuant to the Coverage Ratio
Exception, the Company shall, in its sole discretion, classify such item of
Indebtedness and may divide and classify such Indebtedness in more than one of
the types of Indebtedness described, except that Indebtedness incurred under the
Credit Agreement on the Issue Date shall be deemed to have been incurred under
clause (b)(i) above.
4.10 ASSET SALES.
(a) The Company shall not, and shall not permit any Restricted
Subsidiary to, directly or indirectly, consummate any Asset Sale unless: (i) the
Company or such Restricted Subsidiary receives consideration at the time of such
Asset Sale at least equal to the Fair Market Value of the assets included in
such Asset Sale; and (ii) at least 75% of the total consideration received in
such Asset Sale consists of
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cash or Cash Equivalents. For purposes of clause (ii), the following shall be
deemed to be cash: (A) the amount (without duplication) of any Indebtedness
(other than Subordinated Indebtedness) of the Company or such Restricted
Subsidiary that is expressly assumed by the transferee in such Asset Sale and
with respect to which the Company or such Restricted Subsidiary, as the case may
be, is unconditionally released by the holder of such Indebtedness, (B) the
amount of any obligations received from such transferee that are within 90 days
converted by the Company or such Restricted Subsidiary to cash (to the extent of
the cash actually so received), and (C) the Fair Market Value of any assets
(other than securities) received by the Company or any Restricted Subsidiary to
be used by it in the Permitted Business. If at any time any non-cash
consideration received by the Company or any Restricted Subsidiary of the
Company, as the case may be, in connection with any Asset Sale is repaid or
converted into or sold or otherwise disposed of for cash (other than interest
received with respect to any such non-cash consideration), then the date of such
repayment, conversion or disposition shall be deemed to constitute the date of
an Asset Sale hereunder and the Net Available Proceeds thereof shall be applied
in accordance with this Section 4.10. If the Company or any Restricted
Subsidiary engages in an Asset Sale, the Company or such Restricted Subsidiary
shall, no later than 365 days following the consummation thereof, apply all or
any of the Net Available Proceeds therefrom to: (1) repay Senior Debt or
Guarantor Senior Debt; (2) repay any Indebtedness which was secured by the
assets sold in such Asset Sale; and/or (3) invest all or any part of the Net
Available Proceeds thereof in the purchase of assets (other than securities) to
be used by the Company or any Restricted Subsidiary in the Permitted Business.
(b) The amount of Net Available Proceeds not applied or invested as
provided in Section 4.10 (a) shall constitute "EXCESS PROCEEDS." When the
aggregate amount of Excess Proceeds equals or exceeds $10.0 million, the Company
shall be required to make an offer to purchase from all Holders and, if
applicable, redeem (or make an offer to do so) any Pari Passu Indebtedness of
the Company or a Guarantor the provisions of which require the Company or such
Guarantor to redeem such Indebtedness with the proceeds from any Asset Sales (or
offer to do so), in an aggregate principal amount of Notes and such Pari Passu
Indebtedness equal to the amount of such Excess Proceeds as follows:
(i) the Company shall (A) make an offer to purchase (a "NET
PROCEEDS OFFER") to all Holders in accordance with the procedures set
forth in this Agreement, and (B) redeem (or make an offer to do so) any
such other Pari Passu Indebtedness, PRO RATA in proportion to the
respective principal amounts of the Notes and such other Indebtedness
required to be redeemed, the maximum principal amount of Notes and Pari
Passu Indebtedness that may be redeemed out of the amount (the "PAYMENT
AMOUNT") of such Excess Proceeds;
(ii) the offer price for the Notes shall be payable in cash
in an amount equal to 100% of the principal amount of the Notes tendered
pursuant to a Net Proceeds Offer, plus accrued and unpaid interest
thereon, if any, to the date such Net Proceeds Offer is consummated (the
"OFFERED PRICE"), in accordance with the procedures set forth in this
Agreement and the redemption price for such Pari Passu Indebtedness (the
"PARI PASSU INDEBTEDNESS PRICE") shall be as set forth in the related
documentation governing such Indebtedness;
(iii) if the aggregate Offered Price of Notes validly tendered
and not withdrawn by Holders thereof exceeds the PRO RATA portion of the
Payment Amount allocable to the Notes, Notes to be purchased will be
selected on a PRO RATA basis; and
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(iv) upon completion of such Net Proceeds Offer in accordance
with the foregoing provisions, the amount of Excess Proceeds with
respect to which such Net Proceeds Offer was made shall be deemed to be
zero.
(c) To the extent that the sum of the aggregate Offered Price of
Notes tendered pursuant to a Net Proceeds Offer and the aggregate Pari Passu
Indebtedness Price paid to the holders of such Pari Passu Indebtedness is less
than the Payment Amount relating thereto (such shortfall constituting a "NET
PROCEEDS DEFICIENCY"), the Company may use the Net Proceeds Deficiency, or a
portion thereof, for general corporate purposes, subject to the provisions of
this Agreement.
(d) In the event of the transfer of substantially all (but not all)
of the assets of the Company and the Restricted Subsidiaries as an entirety to a
Person in a transaction covered by and effected in accordance with Section 5.01
hereof, the successor entity shall be deemed to have sold for cash at Fair
Market Value the assets of the Company and the Restricted Subsidiaries not so
transferred for purposes of this Section 4.10, and shall comply with the
provisions of this Section 4.10 with respect to such deemed sale as if it were
an Asset Sale (with such Fair Market Value being deemed to be Net Available
Proceeds for such purpose). The Company shall comply with applicable tender
offer rules, including the requirements of Rule 14e-1 under the Exchange Act and
any other applicable laws and regulations in connection with the purchase of
Notes pursuant to a Net Proceeds Offer. To the extent that the provisions of any
securities laws or regulations conflict with this Section 4.10, the Company
shall comply with the applicable securities laws and regulations and will not be
deemed to have breached its obligations under this Section 4.10 by virtue of
this compliance. Notwithstanding the foregoing, in the event that the Company
consummates an Asset Sale that results in a Change of Control, the provisions of
this Section 4.10 will be deemed to be satisfied and complied with in the event
the Company makes a Change of Control Offer pursuant to, and otherwise complies
with Section 4.15 hereof, or elects to redeem the Notes at the Company's option
as described under Section 3.07 hereof.
4.11 TRANSACTIONS WITH AFFILIATES.
(a) The Company shall not, and shall not permit any Restricted
Subsidiary to, directly or indirectly, in one transaction or a series of related
transactions, sell, lease, transfer or otherwise dispose of any of its assets
to, or purchase any assets from, or enter into any contract, agreement,
understanding, loan, advance or guarantee with, or for the benefit of, any
Affiliate (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 at such
time on an arm's-length basis by the Company or that Restricted
Subsidiary from a Person that is not an Affiliate of the Company or that
Restricted Subsidiary; and
(ii) the Company delivers to the Trustee:
(A) with respect to any Affiliate Transaction
involving aggregate value in excess of $10.0 million, an
Officers' Certificate certifying that such Affiliate Transaction
complies with clause (i) above and a Secretary's Certificate
which sets forth and authenticates a resolution that has been
approved by a majority of the Independent Directors approving
such Affiliate Transaction, if any, otherwise by a majority of
the entire Board; and (B)
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with respect to any Affiliate Transaction involving aggregate
value of $20.0 million or more, the certificates described in
the preceding clause (A) and a written opinion as to the
fairness of such Affiliate Transaction to the Company or such
Restricted Subsidiary from a financial point of view issued by
an Independent Financial Advisor.
(b) The foregoing restrictions shall not apply to: (i) transactions
exclusively between or among (A) the Company and one or more Restricted
Subsidiaries or (B) Restricted Subsidiaries; PROVIDED, in each case, that no
Affiliate of the Company (other than another Restricted Subsidiary) owns Equity
Interests of any such Restricted Subsidiary; (ii) employment contracts,
"know-how" agreements, compensation (including stay-on and incentive bonus)
arrangements and loans to officers and employees, in each case in the form
existing on the Issue Date or representing one or more amendments,
modifications, restatements, supplements, extensions, renewals, refinancings,
refunds or replacements thereof on terms not materially less favorable to the
Company or Restricted Subsidiary, as applicable, than those contained in such
contracts, agreements, arrangements or loans in the form existing as of the
Issue Date; (iii) indemnities of officers, directors and employees of the
Company or any of its Subsidiaries permitted by its certificate of
incorporation, bylaws or statutory provisions; (iv) other director, officer,
employee and consultant compensation (including bonuses) and other benefits
(including retirement, health, stock option and other benefit plans) and
indemnification arrangements, in each case approved by a majority of the
Independent Directors if any, otherwise by a majority of the entire Board; (v)
the entering into of a tax sharing agreement, or payments pursuant thereto,
between the Company and/or one or more Subsidiaries, on the one hand, and any
other Person with which the Company or such Subsidiaries are required or
permitted to file a consolidated tax return or with which the Company or such
Subsidiaries are part of a consolidated group for tax purposes, on the other
hand, which payments by the Company and the Restricted Subsidiaries are not in
excess of the tax liabilities that would have been payable by them on a
stand-alone basis; (vi) any agreement or arrangement set forth in ANNEX A
attached hereto as in effect on the Issue Date or any renewals or extensions of
any such agreement or arrangement (so long as such renewals or extensions are
not less favorable to the Company or the applicable Restricted Subsidiary);
(vii) loans and advances made in the ordinary course of business to officers,
directors and employees who are affiliates of the Company or the Restricted
Subsidiaries, but in any event not to exceed $3.0 million in the aggregate
outstanding at any one time; (viii) any Investment or other Restricted Payments
that are made in accordance with and that are not prohibited under Section 4.07
hereof; PROVIDED, HOWEVER, that the restrictions set forth in clause (a)(i) and
clause (a)(ii)(A) above shall apply to all such Investments and Restricted
Payments; or (ix) any transaction with an Affiliate where the only consideration
paid by the Company or any Restricted Subsidiary is Qualified Equity Interests.
4.12 LIENS.
The Company shall not, and shall not permit any Restricted Subsidiary
to, directly or indirectly, create, incur, assume or permit or suffer to exist
any Lien of any nature whatsoever (other than Permitted Liens) against any
assets of the Company or any Restricted Subsidiary (including Equity Interests
of a Restricted Subsidiary), whether owned at the Issue Date or thereafter
acquired, or any proceeds therefrom, or assign or otherwise convey any right to
receive income or profits therefrom, unless contemporaneously therewith, (i) in
the case of any Lien securing an obligation that ranks PARI PASSU with the Notes
or a Note Guarantee, effective provision is made to secure the Notes or such
Note Guarantee, as the case may be, at least equally and ratably with or prior
to such obligation with a Lien on the same collateral; and (ii) in the case of
any Lien securing an obligation that is subordinated in right of payment to the
Notes
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or a Note Guarantee, effective provision is made to secure the Notes or such
Note Guarantee, as the case may be, with a Lien on the same collateral that is
prior to the Lien securing such subordinated obligation, in each case, for so
long as such obligation is secured by such Lien.
4.13 BUSINESS ACTIVITIES.
The Company shall not, and shall not permit any Restricted Subsidiary
to, engage in any business other than the Permitted Business.
4.14 CORPORATE EXISTENCE.
Subject to Article Five hereof, the Company shall do or cause to be
done all things necessary to preserve and keep in full force and effect (i) its
corporate existence, and the corporate, partnership or other existence of each
of its Subsidiaries, in accordance with the respective organizational documents
(as the same may be amended from time to time) of the Company or any such
Subsidiary and (ii) the rights (charter and statutory), licenses and franchises
of the Company and its Subsidiaries; PROVIDED that the Company shall not be
required to preserve any such right, license or franchise, or the corporate,
partnership or other existence of any of its Subsidiaries, if the Board of
Directors shall determine that the preservation thereof is no longer desirable
in the conduct of the business of the Company and its Subsidiaries, taken as a
whole, and that the loss thereof is not adverse in any material respect to the
Holders of the Notes.
4.15 OFFER TO REPURCHASE UPON CHANGE OF CONTROL.
(a) Upon the occurrence of any Change of Control, unless the Company
has mailed a notice of redemption to all Holders of the Notes and has
irrevocably deposited with the Trustee all monies necessary to effect such
redemption, each Holder shall have the right to require that the Company
purchase that Holder's Notes for a cash price (the "CHANGE OF CONTROL PURCHASE
PRICE") equal to 101% of the principal amount of the Notes to be purchased, plus
accrued and unpaid interest thereon, if any, to the date of purchase. Within 30
days following any Change of Control, unless the Company has exercised its right
to redeem the Notes pursuant to Section 3.07 hereof, the Company shall mail, or
cause to be mailed, to the Holders a notice: (i) describing the transaction or
transactions that constitute the Change of Control, (ii) offering to purchase,
pursuant to the procedures required by this Agreement and described in the
notice (a "CHANGE OF CONTROL OFFER"), on a date specified in the notice (which
shall be a Business Day not earlier than 30 days nor later than 60 days from the
date the notice is mailed) (the "CHANGE OF CONTROL PAYMENT DATE") and for the
Change of Control Purchase Price, all Notes properly tendered by such Holder
pursuant to such Change of Control Offer; and (iii) describing the procedures
that Holders must follow to accept the Change of Control Offer. The Change of
Control Offer is required to remain open for at least 20 Business Days or for
such longer period as is required by law. The Company shall publicly announce
the results of the Change of Control Offer on or as soon as practicable after
the date of purchase. If the Change of Control Payment Date is on or after an
interest record date and on or before the related interest payment date, accrued
but unpaid interest, if any, shall be paid to the Person in whose name a Note is
registered at the close of business on such record date, and no additional
interest will be payable to Holders of Notes who tender pursuant to the Change
of Control Offer. The provisions of this Section 4.15 requiring the Company to
make a Change of Control Offer following a Change of Control shall be applicable
regardless of whether any other provisions of this Agreement are applicable. The
Company may, at any
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time and from time to time, acquire Notes by means other than a redemption,
whether pursuant to an issuer tender offer, open market purchase or otherwise,
so long as the acquisition does not otherwise violate the terms of this Article
Four. The Company shall comply with the requirements of Rule 14e-1 under the
Exchange Act and any other securities laws and regulations thereunder to the
extent such laws and regulations are applicable in connection with the
repurchase of Notes in connection with a Change of Control. To the extent that
the provisions of any securities laws or regulations conflict with this Section
4.15, the Company shall comply with the applicable securities laws and
regulations and shall not be deemed to have breached its obligations under this
Section 4.15 by virtue of such compliance.
(b) On the Change of Control Payment Date, the Company shall, to the
extent lawful, (A) accept for payment all Notes or portions thereof properly
tendered pursuant to the Change of Control Offer, (B) deposit with the Paying
Agent an amount equal to the Change of Control Payment in respect of all Notes
or portions thereof so tendered and (C) 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 Paying Agent shall promptly mail to each Holder of Notes so
tendered payment in an amount equal to the purchase price for the Notes, and the
Trustee shall 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 by such Holder, if any; PROVIDED, that each
such new Note shall be in a principal amount of $1,000 or an integral multiple
thereof. The Company shall publicly announce the results of the Change of
Control Offer on or as soon as practicable after the Change of Control Payment
Date.
(c) Notwithstanding anything to the contrary in this Section 4.15,
the Company shall not be required to make a Change of Control Offer upon a
Change of Control if a third party makes the Change of Control Offer in the
manner, at the times and otherwise in compliance with the requirements set forth
in this Section 4.15 hereof and all other provisions of this Agreement
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.
4.16 DESIGNATION OF UNRESTRICTED SUBSIDIARIES.
(a) On the Issue Date, the following Subsidiaries will be Restricted
Subsidiaries: TransMontaigne Product Services Inc., TransMontaigne Transport
Inc., Coastal Fuels Marketing, Inc. and Coastal Tug and Barge, Inc. After the
Issue Date, the Company may designate any Subsidiary of the Company as an
"Unrestricted Subsidiary" under this Agreement (a "DESIGNATION") only if: (i) no
Default shall have occurred and be continuing at the time of or after giving
effect to such Designation; and (ii) the Company would be permitted to make, at
the time of such Designation, (A) a Permitted Investment pursuant to clause (12)
of the definition thereof or (B) an Investment pursuant to Sections 4.07(a) or
4.07(b)(ix) hereof, in either case, in an amount (the "DESIGNATION AMOUNT")
equal to the Fair Market Value of the Company's proportionate interest in such
Subsidiary on such date.
(b) No Subsidiary shall be Designated as an "Unrestricted
Subsidiary" unless such Subsidiary: (1) has no Indebtedness other than
Non-Recourse Debt; (2) is not party to any agreement, contract, arrangement or
understanding with the Company or any Restricted Subsidiary unless the terms of
the agreement, contract, arrangement or understanding are no less favorable to
the Company or the Restricted Subsidiary than those that might be obtained at
the time from Persons who are not Affiliates; and (3) is a
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Person with respect to which neither the Company nor any Restricted Subsidiary
has any direct or indirect obligation (a) to subscribe for additional Equity
Interests or (b) to maintain or preserve the Person's financial condition or to
cause the Person to achieve any specified levels of operating results.
(c) If, at any time, any Unrestricted Subsidiary fails to meet the
preceding requirements as an Unrestricted Subsidiary, it shall thereafter cease
to be an Unrestricted Subsidiary for purposes of this Agreement and any
Indebtedness of the Subsidiary and any Liens on assets of such Subsidiary shall
be deemed to be incurred by a Restricted Subsidiary as of the date and, if the
Indebtedness is not permitted to be incurred under Section 4.09 hereof or the
Lien is not permitted under Section 4.12 hereof, the Company shall be in default
of the applicable covenant.
(d) The Company may redesignate an Unrestricted Subsidiary as a
Restricted Subsidiary (a "REDESIGNATION") only if: (i) no Default shall have
occurred and be continuing at the time of and after giving effect to such
Redesignation; and (ii) all Liens, Indebtedness and Investments of such
Unrestricted Subsidiary outstanding immediately following such Redesignation
would, if incurred or made at such time, have been permitted to be incurred or
made for all purposes of this Agreement. All Designations and Redesignations
must be evidenced by resolutions of the Board of Directors of the Company,
delivered to the Trustee certifying compliance with the foregoing provisions.
4.17 LIMITATION ON ISSUANCE OR SALE OF EQUITY INTERESTS OF RESTRICTED
SUBSIDIARIES.
The Company shall not, and shall not permit any Restricted Subsidiary
to, directly or indirectly, sell or issue any shares of Equity Interests of any
Restricted Subsidiary except (a) to the Company, a Restricted Subsidiary or the
minority stockholders of any Restricted Subsidiary, on a PRO RATA basis, at Fair
Market Value, (b) to the extent such shares represent directors' qualifying
shares or shares required by applicable law to be held by a Person other than
the Company or a Wholly-Owned Restricted Subsidiary or (c) if after giving
effect thereto, such Restricted Subsidiary no longer qualifies as such and the
sale is not otherwise prohibited by this Agreement. The sale of all the Equity
Interests of any Restricted Subsidiary is permitted by this Section 4.17 but is
also subject to Section 4.10 hereof.
4.18 ADDITIONAL NOTE GUARANTEES.
If, after the Issue Date, (a) the Company or any Restricted Subsidiary
shall acquire or create another Subsidiary (other than in any case a Subsidiary
(x) that is a Foreign Subsidiary or (y) that has been designated an Unrestricted
Subsidiary) or (b) any Unrestricted Subsidiary is redesignated a Restricted
Subsidiary, then, in each such case, the Company shall cause such Restricted
Subsidiary to: (1) execute and deliver to the Trustee (a) a supplemental
indenture in form and substance satisfactory to the Trustee pursuant to which
such Restricted Subsidiary shall unconditionally guarantee all of the Company's
obligations under the Notes and this Agreement and (b) a notation of guarantee
in respect of its Note Guarantee; and (2) deliver to the Trustee one or more
opinions of counsel that such supplemental indenture (a) has been duly
authorized, executed and delivered by such Restricted Subsidiary and (b)
constitutes a valid and legally binding obligation of such Restricted Subsidiary
in accordance with its terms.
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4.19 LIMITATION ON LAYERING INDEBTEDNESS.
The Company shall not, and shall not permit any Restricted Subsidiary
to, directly or indirectly, incur or suffer to exist any Indebtedness that
purports to be by its terms (or by the terms of any agreement governing such
Indebtedness) senior to the Notes or the Note Guarantee of such Restricted
Subsidiary and purports to be by its terms (or by the terms of any agreement
governing such Indebtedness) subordinated to any other Indebtedness of the
Company or of such Restricted Subsidiary, as the case may be, it being
understood that Indebtedness will not be considered subordinated to other
Indebtedness solely by reason of being secured by a Lien other than a first
priority Lien.
ARTICLE V
SUCCESSORS
5.01 MERGER, CONSOLIDATION, OR SALE OF ASSETS.
The Company shall not, directly or indirectly, in a single transaction
or a series of related transactions, (a) consolidate or merge with or into
another Person (other than a merger with a Wholly-Owned Restricted Subsidiary
solely for the purpose of changing the Company's jurisdiction of incorporation
to another State of the United States), or sell, lease, transfer, convey or
otherwise dispose of or assign all or substantially all of the assets of the
Company or the Company and the Restricted Subsidiaries (taken as a whole) or (b)
adopt a Plan of Liquidation unless, in either case: (1) either: (y) the Company
will be the surviving or continuing Person; or (z) the Person formed by or
surviving such consolidation or merger or to which such sale, lease, conveyance
or other disposition shall be made (or, in the case of a Plan of Liquidation,
any Person to which assets are transferred) (collectively, the "SUCCESSOR") is a
corporation organized and existing under the laws of any State of the United
States of America or the District of Columbia, and the Successor expressly
assumes, by supplemental indenture in form and substance satisfactory to the
Trustee, all of the obligations of the Company under the Notes, this Agreement
and the Registration Rights Agreement, (2) immediately prior to and immediately
after giving effect to such transaction and the assumption of the obligations as
set forth in clause (1)(z) above and the incurrence of any Indebtedness to be
incurred in connection therewith, no Default shall have occurred and be
continuing, and (3) except in the case of the consolidation or merger of any
Wholly-Owned Restricted Subsidiary with or into the Company, immediately after
and giving effect to such transaction and the assumption of the obligations set
forth in clause (1)(z) above and the incurrence of any Indebtedness to be
incurred in connection therewith, and the use of any net proceeds therefrom on a
PRO FORMA basis, (i) the Consolidated Net Worth of the Company or the Successor,
as the case may be, would be at least equal to the Consolidated Net Worth of the
Company immediately prior to such transaction and (ii) the Company or the
Successor, as the case may be, could incur $1.00 of additional Indebtedness
pursuant to the Coverage Ratio Exception. For purposes of this Section 5.01, any
Indebtedness of the Successor which was not Indebtedness of the Company
immediately prior to the transaction shall be deemed to have been incurred in
connection with such transaction. 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 Restricted Subsidiaries, the Equity Interests of which constitute all or
substantially all of the
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properties and assets of the Company, will be deemed to be the transfer of all
or substantially all of the properties and assets of the Company.
Except as provided in Sections 11.05 and 11.06, no Guarantor may
consolidate with or merge with or into (whether or not such Guarantor is the
surviving Person) another Person, whether or not affiliated with such Guarantor.
Notwithstanding the foregoing, any Restricted Subsidiary may merge into
the Company or another Restricted Subsidiary.
5.02 SUCCESSOR CORPORATION SUBSTITUTED.
Upon any consolidation, combination or merger of the Company or a
Guarantor, or any transfer of all or substantially all of the assets of the
Company in accordance with Section 5.01 hereof, in which the Company or such
Guarantor is not the continuing obligor under the Notes or its Note Guarantee,
the surviving entity formed by such consolidation or into which the Company or
such Guarantor is merged or to which the conveyance, lease or transfer is made
will succeed to, and be substituted for (so that from and after the date of such
consolidation, merger, sale, lease, conveyance or other disposition, the
provisions of this Agreement referring to the "Company" shall refer instead to
the successor entity and not to the Company), and may exercise every right and
power of, the Company or such Guarantor under this Agreement, the Notes and the
Note Guarantees with the same effect as if such surviving entity had been named
therein as the Company or such Guarantor and, except in the case of a
conveyance, transfer or lease, the Company or such Guarantor, as the case may
be, will be released from the obligation to pay the principal of and interest on
the Notes or in respect of its Note Guarantee, as the case may be, and all of
the Company's or such Guarantor's other obligations and covenants under the
Notes, this Agreement and its Note Guarantee, if applicable.
ARTICLE VI
DEFAULTS AND REMEDIES
6.01 EVENTS OF DEFAULT.
Each of the following is an "EVENT OF DEFAULT":
(a) failure by the Company to pay interest on any of the Notes when
it becomes due and payable and the continuance of any such failure for 30 days
(whether or not such payment is prohibited by the subordination provisions of
this Agreement);
(b) failure by the Company to pay the principal on any of the Notes
when it becomes due and payable, whether at stated maturity, upon redemption,
upon purchase, upon acceleration or otherwise (whether or not such payment is
prohibited by the subordination provisions of this Agreement);
(c) failure by the Company to comply with Sections 5.01 and 4.15
hereof (whether or not such payment is prohibited by the subordination
provisions of this Agreement);
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(d) failure by the Company to comply with any other agreement or
covenant in this Agreement and continuance of this failure for 45 days after
notice of the failure has been given to the Company by the Trustee or by the
Holders of at least 25% of the aggregate principal amount of the Notes then
outstanding;
(e) default under any mortgage, indenture or other instrument or
agreement under which there may be issued or by which there may be secured or
evidenced Indebtedness of the Company or any Restricted Subsidiary, whether such
Indebtedness now exists or is incurred after the Issue Date, which default:
(i) is caused by a failure to pay when due principal on such
Indebtedness within the applicable express grace period,
(ii) results in the acceleration of such Indebtedness prior
to its express final maturity or
(iii) results in the commencement of judicial proceedings to
foreclose upon, or to exercise remedies under applicable law or
applicable security documents to take ownership of, the assets securing
such Indebtedness, and
in each case, the principal amount of such Indebtedness, together with any other
Indebtedness with respect to which an event described in clause (i), (ii) or
(iii) has occurred and is continuing, aggregates $10.0 million or more;
(f) one or more judgments or orders that exceed $10.0 million in the
aggregate (net of amounts covered by insurance or bonded) for the payment of
money have been entered by a court or courts of competent jurisdiction against
the Company or any Restricted Subsidiary and such judgment or judgments have not
been satisfied, stayed, annulled or rescinded within 60 days of being entered
(or such longer period as may be permitted for timely appeal under applicable
law);
(g) the Company or any Significant Subsidiary pursuant to or within
the meaning of any Bankruptcy Law:
(i) commences a voluntary case,
(ii) consents to the entry of an order for relief against it
in an involuntary case,
(iii) consents to the appointment of a Custodian of it or for
all or substantially all of its assets, or
(iv) makes a general assignment for the benefit of its
creditors;
(h) a court of competent jurisdiction enters an order or decree that
remains unstayed and in effect for 60 days under any Bankruptcy Law that:
(i) is for relief against the Company or any Significant
Subsidiary as debtor in an involuntary case,
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(ii) appoints a Custodian of the Company or any Significant
Subsidiary or a Custodian for all or substantially all of the assets of
the Company or any Significant Subsidiary, or
(iii) orders the liquidation of the Company or any Significant
Subsidiary; or
(i) any Note Guarantee of any Significant Subsidiary ceases to be in
full force and effect (other than in accordance with the terms of such Note
Guarantee and this Agreement) or is declared null and void and unenforceable or
found to be invalid or any Guarantor denies its liability under its Note
Guarantee (other than by reason of release of a Guarantor from its Note
Guarantee in accordance with the terms of this Agreement and the Note Guarantee)
and in either case such condition continues for 45 days.
6.02 ACCELERATION.
If any Event of Default (other than an Event of Default specified in
clause (g) or (h) of Section 6.01 hereof with respect to the Company shall have
occurred and be continuing, the Trustee by written notice to the Company or the
Holders of at least 25% in aggregate principal amount of the then outstanding
Notes by written notice to the Company and the Trustee may declare all amounts
owing under the Notes to be due and payable immediately. Upon such declaration
of acceleration, the aggregate principal of and accrued and unpaid interest on
the outstanding Notes shall immediately become due and payable; PROVIDED,
HOWEVER, that after such acceleration, but before a judgment or decree based on
acceleration, the Holders of a majority in aggregate principal amount of such
outstanding Notes may, under certain circumstances, rescind and annul such
acceleration if all Events of Default, other than the nonpayment of accelerated
principal and interest, have been cured or waived as provided in this Agreement.
Notwithstanding the foregoing, if an Event of Default specified in clause (g) or
(h) of Section 6.01 hereof occurs with respect to the Company all outstanding
Notes shall be due and payable immediately without further action or notice.
The Company may cure a Default or Event of Default by designating a
Restricted Subsidiary as an Unrestricted Subsidiary in compliance with Section
4.16 hereof, if the circumstances giving rise to such Default or Event of
Default would not have constituted a Default or Event of Default had such
Restricted Subsidiary been an Unrestricted Subsidiary during the relevant period
of such circumstances.
6.03 OTHER REMEDIES.
If an Event of Default occurs and is continuing, the Trustee may pursue
any available remedy to collect the payment of principal, premium and Additional
Interest, if any, and interest on the Notes or to enforce the performance of any
provision of the Notes or this Agreement.
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.
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6.04 WAIVER OF PAST DEFAULTS.
Holders of not less than 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 and Additional Interest, if any, or
interest on, the Notes (including in connection with an offer to purchase)
(PROVIDED that the Holders of a majority in aggregate principal amount of the
then outstanding Notes may rescind an acceleration and its consequences,
including any related payment default that resulted from such acceleration).
Upon any such waiver, such Default shall cease to exist, and any Event of
Default arising therefrom shall be deemed to have been cured for every purpose
of this Agreement; but no such waiver shall extend to any subsequent or other
Default or impair any right consequent thereon.
6.05 CONTROL BY MAJORITY.
Holders of a majority in principal amount of the then outstanding Notes
may direct the time, method and place of conducting any proceeding for
exercising any remedy available to the Trustee or exercising any trust or power
conferred on it. However, the Trustee may refuse to follow any direction that
conflicts with law or this Agreement that the Trustee determines may be unduly
prejudicial to the rights of other Holders of Notes or that may involve the
Trustee in personal liability.
6.06 LIMITATION ON SUITS.
A Holder of a Note may institute a proceeding with respect to this
Agreement or for any remedy hereunder only if:
(a) the Holder of a Note gives to the Trustee written notice of a
continuing Event of Default;
(b) the Holders of at least 25% in aggregate principal amount of the
then outstanding Notes make a written request to the Trustee to pursue the
remedy;
(c) such Holder of a Note or Holders of Notes offer and, if
requested, provide to the Trustee indemnity satisfactory to the Trustee against
any loss, liability or expense;
(d) the Trustee does not comply with the request within 60 days
after receipt of the request; and
(e) during such 60-day period the Holders of a majority in principal
amount of the then outstanding Notes do not give the Trustee a direction
inconsistent with the request.
A Holder of a Note may not use this Agreement to prejudice the rights of
another Holder of a Note or to obtain a preference or priority over another
Holder of a Note.
However, such limitations do not apply to a suit instituted by a Holder
of any Note for enforcement of payment of the principal of or interest on such
Note on or after the due date therefor (after giving effect to the grace period
specified in Section 6.01(a) hereof).
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6.07 RIGHTS OF HOLDERS OF NOTES TO RECEIVE PAYMENT.
Notwithstanding any other provision of this Agreement, the right of any
Holder of a Note to receive payment of principal, premium and Additional
Interest, 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.
6.08 COLLECTION SUIT BY TRUSTEE.
If an Event of Default specified in Section 6.01(a) or (b) occurs and is
continuing, the Trustee is authorized to recover judgment in its own name and as
trustee of an express trust against the Company for the whole amount of
principal of, premium and Additional Interest, if any, and interest remaining
unpaid 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.
6.09 TRUSTEE MAY FILE PROOFS OF CLAIM.
The Trustee is authorized to file such proofs of claim and other papers
or documents as may be necessary or advisable in order to have the claims of the
Trustee (including any claim for the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel) and the
Holders of the 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 empowered to collect, receive and distribute any money or other
property payable or deliverable on any such claims and any Custodian in any such
judicial proceeding is hereby authorized by each Holder to make such payments to
the Trustee, and in the event that the Trustee shall consent to the making of
such payments directly to the Holders, to pay to the Trustee any amount due to
it for the reasonable compensation, expenses, disbursements and advances of the
Trustee, its agents and counsel, and any other amounts due the Trustee under
Section 7.07 hereof. To the extent that the payment of any such compensation,
expenses, disbursements and advances of the Trustee, its agents and counsel, and
any other amounts due the Trustee under Section 7.07 hereof out of the estate in
any such proceeding, shall be denied for any reason, payment of the same shall
be secured by a Lien on, and shall be paid out of, any and all distributions,
dividends, money, securities and other properties that the Holders may be
entitled to receive in such proceeding whether in liquidation or under any plan
of reorganization or arrangement or otherwise. Nothing herein contained shall be
deemed to authorize the Trustee to authorize or consent to or accept or adopt on
behalf of any Holder any plan of reorganization, arrangement, adjustment or
composition affecting the 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.
6.10 PRIORITIES.
If the Trustee collects any money pursuant to this Article, it shall pay
out the money in the following order:
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FIRST: to the Trustee, its agents and attorneys for amounts due
under Section 7.07 hereof, including payment of all compensation,
expense and liabilities incurred, and all advances made, by the Trustee
and the costs and expenses of collection;
SECOND: to Holders of Notes for amounts due and unpaid on the
Notes for principal, premium and Additional Interest, 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 and
Additional Interest, if any and interest, respectively; and
THIRD: to the Company or to such party as a court of competent
jurisdiction shall direct.
The Trustee may fix a record date and payment date for any payment to
Holders of Notes pursuant to this Section 6.10.
6.11 UNDERTAKING FOR COSTS.
In any suit for the enforcement of any right or remedy under this
Agreement or in any suit against the Trustee for any action taken or omitted by
it as a Trustee, a court in its discretion may require the filing by any party
litigant in the suit of an undertaking to pay the costs of the suit, and the
court in its discretion may assess reasonable costs, including reasonable
attorneys' fees, against any party litigant in the suit, having due regard to
the merits and good faith of the claims or defenses made by the party litigant.
This Section does not apply to a suit by the Trustee or a suit by a Holder of a
Note pursuant to Section 6.07 hereof.
ARTICLE VII
TRUSTEE
7.01 DUTIES OF TRUSTEE.
(a) If an Event of Default has occurred and is continuing, the
Trustee shall exercise such of the rights and powers vested in it by this
Agreement, and use the same degree of care and skill in its exercise, as a
prudent person would exercise or use under the circumstances in the conduct of
such person's own affairs.
(b) Except during the continuance of an Event of Default:
(i) the duties of the Trustee shall be determined solely by
the express provisions of this Agreement and the Trustee need perform
only those duties that are specifically set forth in this Agreement and
no others, and no implied covenants or obligations shall be read into
this Agreement 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
Agreement. How-
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ever, the Trustee shall examine the certificates and opinions to
determine whether or not they conform to the requirements of this
Agreement, but need not confirm or investigate the accuracy of
mathematical calculations or other facts stated therein.
(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 (c) does not limit the effect of
paragraph (b) of this Section 7.01;
(ii) the Trustee shall not be liable for any error of
judgment made in good faith by a Responsible Officer, unless it is
proved that the Trustee was negligent in ascertaining the pertinent
facts; and
(iii) the Trustee shall not be liable with respect to any
action it takes or omits to take in good faith in accordance with a
direction received by it pursuant to Section 6.05 hereof.
(d) No provision of this Agreement shall require the Trustee to
expend or risk its own funds or incur any liability. The Trustee shall be under
no obligation to exercise any of its rights and powers under this Agreement at
the request of any Holders, unless such Holder shall have offered to the Trustee
security and indemnity satisfactory to it against any loss, liability or
expense.
(e) Whether or not therein expressly so provided, every provision of
this Agreement that in any way relates to the Trustee is subject to Section s
7.01(a), (b), (c) and (d).
(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.
7.02 RIGHTS OF TRUSTEE.
(a) The Trustee may conclusively rely upon any document believed by
it to be genuine and to have been signed or presented by the proper Person. The
Trustee need not investigate any fact or matter stated in the document.
(b) Before the Trustee acts or refrains from acting, it may require
an Officers' Certificate or an opinion of counsel or both. The Trustee shall not
be liable for any action it takes or omits to take in good faith in reliance on
such Officers' Certificate or opinion of counsel. The Trustee may consult with
counsel of its selection and the advice of such counsel or any opinion of
counsel shall be full and complete authorization and protection from liability
in respect of any action taken, suffered or omitted by it hereunder in good
faith and in reliance thereon.
(c) The Trustee may act through its attorneys and agents and shall
not be responsible for the misconduct or negligence of any agent appointed with
due care.
(d) The Trustee shall not be liable for any action it takes or omits
to take in good faith that it believes to be authorized or within the rights or
powers conferred upon it by this Agreement.
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(e) Unless otherwise specifically provided in this Agreement, any
demand, request, direction or notice from the Company shall be sufficient if
signed by an Officer of the Company.
(f) The Trustee shall be under no obligation to exercise any of the
rights or powers vested in it by this Agreement at the request or direction of
any of the Holders unless such Holders shall have offered to the Trustee
security or indemnity reasonably satisfactory to it against the costs, expenses
and liabilities that might be incurred by it in compliance with such request or
direction.
(g) The Trustee shall not be bound to make any investigation into
the facts or matters stated in any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent, order, bond,
debenture, note, other evidence of indebtedness or other paper or document, but
the Trustee, in its discretion, may make such further inquiry or investigation
into such facts or matters as it sees fit, and, if the Trustee shall determine
to make such further inquiry or investigation, it shall be entitled to examine
the books, records and premises of the Company, personally or by agent or
attorney, and shall incur no liability or additional liability of any kind by
reason of such inquiry or investigation.
(h) The Trustee shall not be deemed to have notice of any Default or
Event of Default unless a Responsible Officer of the Trustee has actual
knowledge thereof or unless written notice of any event which is in fact such a
default is received by the Trustee at the Corporate Trust Office of the Trustee,
and such notice references the Notes and this Agreement.
(i) The rights, privileges, protections, immunities and benefits
given to the Trustee, including, without limitation, its right to be
indemnified, are extended to, and shall be enforceable by, the Trustee in each
of its capacities hereunder, and to each agent, Depositary Custodian and other
Person employed to act hereunder.
(j) The Trustee may request that the Company deliver an Officers'
Certificate setting forth the names of individuals and/or titles of officers
authorized at such time to take specified actions pursuant to this Agreement,
which Officers' Certificate may be signed by any Person authorized to sign an
Officers' Certificate, including any Person specified as so authorized in any
such certificate previously delivered and not superseded.
7.03 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 it must
eliminate such conflict within 90 days, apply to the SEC for permission to
continue as trustee or resign. Any Agent may do the same with like rights and
duties. The Trustee is also subject to Sections 7.10 and 7.11 hereof.
7.04 TRUSTEE'S DISCLAIMER.
The Trustee shall not be responsible for and makes no representation as
to the validity or adequacy of this Agreement, the Notes or the Note Guarantees,
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
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under any provision of this Agreement, 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 Agreement other than its certificate of
authentication.
7.05 NOTICE OF DEFAULTS.
If a Default or Event of Default occurs and is continuing and if it is
actually known to a Responsible Officer of the Trustee, the Trustee shall mail
to Holders of Notes a notice of the Default or Event of Default within 30 days
after it occurs. Except in the case of a Default or Event of Default (a) in
payment of principal of, premium, if any, or interest on any Note or (b) in
compliance with Section 5.01 hereof, the Trustee may withhold the notice if and
so long as a committee of its Responsible Officers in good faith determines that
withholding the notice is in the interests of the Holders of the Notes.
7.06 REPORTS BY TRUSTEE TO HOLDERS OF THE NOTES.
Within 60 days after each August 30 beginning with the August 30
following the date of this Agreement, 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 on
which the Notes are listed in accordance with TIA Section 313(d). The Company
shall promptly notify the Trustee when the Notes are listed on any stock
exchange or of any delisting thereof.
7.07 COMPENSATION AND INDEMNITY.
The Company shall pay to the Trustee from time to time such compensation
for its acceptance of this Agreement and services hereunder as the Company and
the Trustee shall agree to in writing from time to time. The Trustee's
compensation shall not be limited by any law on compensation of a trustee of an
express trust. The Company shall reimburse the Trustee promptly upon request for
all reasonable disbursements, advances and expenses incurred or made by it 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 and any predecessor Trustee and
their agents 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 Agreement, including the costs and expenses of enforcing this
Agreement against the Company (including this Section 7.07) and defending itself
against any claim (whether asserted by the Company or any Holder or any other
person) or liability in connection with the exercise or performance of any of
its powers or duties hereunder, except to the extent any such loss, liability or
expense may be attributable to its negligence or bad faith. The Trustee shall
notify the Company promptly of any claim for which it may seek indemnity.
Failure by the Trustee to so notify the
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Company shall not relieve the Company of its obligations hereunder. The Company
shall defend the claim and the Trustee shall cooperate in the defense. The
Trustee may have separate counsel and the Company shall pay the reasonable fees
and expenses of such counsel. The Company need not pay for any settlement made
without its consent, which shall not be unreasonably withheld.
The obligations of the Company under this Section 7.07 shall survive the
satisfaction and discharge of this Agreement.
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
Agreement.
When the Trustee incurs expenses or renders services after an Event of
Default specified in Section 6.01(g) or (h) hereof occurs, the expenses and the
compensation for the services (including the fees and expenses of its agents and
counsel) are intended to constitute expenses of administration under any
Bankruptcy Law.
The Trustee shall comply with the provisions of TIA Section 313(b)(2) to
the extent applicable.
7.08 REPLACEMENT OF TRUSTEE.
A resignation or removal of the Trustee and appointment of a successor
Trustee shall become effective only upon the successor Trustee's acceptance of
appointment as provided in this Section.
The Trustee may resign in writing at any time and be discharged from the
trust hereby created by so notifying the Company. The Holders of a majority in
principal amount of the then outstanding Notes may remove the Trustee by so
notifying the Trustee and the Company in writing. The Company may remove the
Trustee if:
(a) the Trustee fails to comply with Section 7.10 hereof;
(b) the Trustee is adjudged a bankrupt or an insolvent or an order
for relief is entered with respect to the Trustee under any Bankruptcy Law;
(c) a Custodian or public officer takes charge of the Trustee or its
property; or
(d) the Trustee becomes incapable of acting.
If the Trustee resigns or is removed or if a vacancy exists in the
office of Trustee for any reason, the Company shall promptly appoint a successor
Trustee. Within one year after the successor Trustee takes office, the Holders
of a majority in principal amount of the then outstanding Notes may appoint a
successor Trustee to replace the successor Trustee appointed by the Company.
If a successor Trustee does not take office within 90 days after the
retiring Trustee resigns or is removed, the retiring Trustee, the Company, or
the Holders of at least 10% in principal amount of the
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then outstanding Notes may, at the expense of the Company, petition any court of
competent jurisdiction for the appointment of a successor Trustee.
If the Trustee, after written request by any Holder who has been a
Holder for at least six months, fails to comply with Section 7.10, such Holder
may petition any court of competent jurisdiction for the removal of the Trustee
and the appointment of a successor Trustee.
A successor Trustee shall deliver a written acceptance of its
appointment to the retiring Trustee and to the Company. Thereupon, the
resignation or removal of the retiring Trustee shall become effective, and the
successor Trustee shall have all the rights, powers and duties of the Trustee
under this Agreement. The successor Trustee shall mail a notice of its
succession to Holders. 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
7.07 hereof. Notwithstanding replacement of the Trustee pursuant to this Section
7.08, the Company's obligations under Section 7.07 hereof shall continue for the
benefit of the retiring Trustee.
7.09 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.
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 Agreement 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).
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.
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ARTICLE VIII
LEGAL DEFEASANCE AND COVENANT DEFEASANCE
8.01 OPTION TO EFFECT LEGAL DEFEASANCE OR COVENANT DEFEASANCE.
The Company may at any time elect to have either Section 8.02 or 8.03
hereof be applied to all outstanding Notes upon compliance with the conditions
set forth below in this Article Eight.
8.02 LEGAL DEFEASANCE AND DISCHARGE.
Upon the Company's exercise under Section 8.01 hereof of the option
applicable to this Section 8.02, the Company shall, subject to the satisfaction
of the conditions set forth in Section 8.04 hereof, be deemed to have been
discharged from its obligations with respect to all outstanding Notes and all
obligations of the Guarantors discharged with respect to the Note Guarantees on
the date the conditions set forth below are satisfied (hereinafter, "LEGAL
DEFEASANCE"). For this purpose, Legal Defeasance means that the Company and the
Guarantors shall be deemed to have paid and discharged the entire Indebtedness
represented by the outstanding Notes and the Note Guarantees, respectively,
which shall thereafter be deemed to be "outstanding" only for the purposes of
Section 8.05 hereof and the other Sections of this Agreement referred to in (a)
and (b) below, and to have satisfied all its other obligations under such Notes
and this Agreement (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 hereunder: (a) the rights of Holders of outstanding Notes to receive
solely from the trust fund described in Section 8.04 hereof, and as more fully
set forth in such Section, payments in respect of the principal of, premium and
Additional Interest, if any, and interest on such Notes when such payments are
due, (b) the Company's obligations with respect to such Notes under Article 2
and Section 4.02 hereof, (c) the rights, powers, trusts, duties and immunities
of the Trustee hereunder and the Company's obligations in connection therewith
and (d) this Article Eight. Subject to compliance with this Article Eight, the
Company may exercise its option under this Section 8.02 notwithstanding the
prior exercise of its option under Section 8.03 hereof.
8.03 COVENANT DEFEASANCE.
Upon the Company's exercise under Section 8.01 hereof of the option
applicable to this Section 8.03, the Company and the Guarantors shall, subject
to the satisfaction of the conditions set forth in Section 8.04 hereof, be
released from its obligations under the covenants contained in Sections 4.03,
4.04, 4.05, 4.07, 4.08, 4.09, 4.10, 4.11, 4.12, 4.13, 4.15, 4.16, 4.17, 4.18 and
4.19 hereof and clause (3) of Section 5.01 hereof with respect to the
outstanding Notes on and after the date the conditions set forth in Section 8.04
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
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any reference elsewhere herein to any such covenant or by reason of any
reference in any such covenant to any other provision herein or in any other
document and such omission to comply shall not constitute a Default or an Event
of Default under Section 6.01 hereof, but, except as specified above, the
remainder of this Agreement and such Notes shall be unaffected thereby. In
addition, upon the Company's exercise under Section 8.01 hereof of the option
applicable to this Section 8.03 hereof, subject to the satisfaction of the
conditions set forth in Section 8.04 hereof, Sections 6.01(c) through 6.01(f)
and Section 6.01(i) hereof shall not constitute Events of Default.
8.04 CONDITIONS TO LEGAL OR COVENANT DEFEASANCE.
The following shall be the conditions to the application of either
Section 8.02 or 8.03 hereof to the outstanding Notes:
In order to exercise either Legal Defeasance or Covenant Defeasance:
(a) the Company must irrevocably deposit with the Trustee, in trust,
for the benefit of the Holders, U.S. legal tender, U.S. Government Obligations
or a combination thereof, in such amounts as will be sufficient (without
reinvestment) in the opinion of a nationally recognized firm of independent
public accountants selected by the Company, to pay the principal of and interest
on the Notes on the stated date for payment or on the redemption date of the
principal or installment of principal of or interest on the Notes, and the
Holders must have a valid, perfected, exclusive security interest in such trust;
(b) in the case of an election under Section 8.02 hereof, the
Company shall have delivered to the Trustee an opinion of counsel in the United
States reasonably acceptable to the Trustee confirming that (A) the Company has
received from, or there has been published by, the Internal Revenue Service a
ruling or (B) since the date of this Agreement, there has been a change in the
applicable U.S. federal income tax law, in either case to the effect that, and
based thereon such opinion of counsel shall confirm that, the Holders of the
outstanding Notes will not recognize income, gain or loss for U.S. federal
income tax purposes as a result of such Legal Defeasance and will be subject to
U.S. federal income tax on the same amounts, in the same manner and at the same
times as would have been the case if such Legal Defeasance had not occurred;
(c) in the case of an election under Section 8.03 hereof, the
Company shall have delivered to the Trustee an opinion of counsel in the United
States reasonably acceptable to the Trustee confirming that the Holders of the
outstanding 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 shall have occurred and be continuing on the date of
such deposit (other than a Default resulting from the borrowing of funds to be
applied to such deposit and the grant of any Lien securing such borrowing);
(e) such Legal Defeasance or Covenant Defeasance shall not result in
a breach or violation of, or constitute a default under, any material agreement
or instrument (other than this Agreement) to
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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 over any other creditors of the Company or with the
intent of defeating, hindering, delaying or defrauding any other creditors of
the Company; and
(g) the Company shall have delivered to the Trustee an Officers'
Certificate and an opinion of counsel, each stating that the conditions provided
for in, in the case of the Officers' Certificate, clauses (a) through (f) and,
in the case of the opinion of counsel, clauses (a) (with respect to the validity
and perfection of the security interest), (b) and/or (c) and (e) of this Section
8.04 have been complied with.
8.05 DEPOSITED MONEY AND U.S. GOVERNMENT SECURITIES TO BE HELD IN TRUST;
OTHER MISCELLANEOUS PROVISIONS.
Subject to Section 8.06 hereof, all money and U.S. Government Securities
(including the proceeds thereof) deposited with the Trustee (or other qualifying
trustee, collectively for purposes of this Section 8.05, the "TRUSTEE") pursuant
to Section 8.04 hereof in respect of the outstanding Notes shall be held in
trust and applied by the Trustee, in accordance with the provisions of such
Notes and this Agreement, to the payment, either directly or through any Paying
Agent (including the Company acting as Paying Agent) as the Trustee may
determine, to the Holders of such Notes of all sums due and to become due
thereon in respect of principal, premium and Additional Interest, 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 U.S. Government
Securities deposited pursuant to Section 8.04 hereof or the principal and
interest received in respect thereof other than any such tax, fee or other
charge which by law is for the account of the Holders of the outstanding Notes.
Anything in this Article Eight to the contrary notwithstanding, the
Trustee shall deliver or pay to the Company from time to time upon the request
of the Company any money or U.S. Government Securities held by it as provided in
Section 8.04 hereof which, in the opinion of a nationally recognized firm of
independent public accountants expressed in a written certification thereof
delivered to the Trustee (which may be the opinion delivered under Section
8.04(a) hereof), are in excess of the amount thereof that would then be required
to be deposited to effect an equivalent Legal Defeasance or Covenant Defeasance.
8.06 REPAYMENT TO COMPANY.
Any money deposited with the Trustee or any Paying Agent, or then held
by the Company, in trust for the payment of the principal of, premium, if any,
or interest on any Note and remaining unclaimed for two years after such
principal, and premium, if any, or interest has become due and payable shall be
paid to the Company on its request or (if then held by the Company) shall be
discharged from such trust; and the Holder of such Note shall thereafter look
only to the Company for payment thereof, and all liability of the Trustee or
such Paying Agent with respect to such trust money, and all liability of the
Company as trustee thereof, shall thereupon cease; PROVIDED that the Trustee or
such Paying Agent,
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before being required to make any such repayment, may at the expense of the
Company cause to be published once, in the
New York Times and The Wall Street
Journal (national edition), notice that such money remains unclaimed and that,
after a date specified therein, which shall not be less than 30 days from the
date of such notification or publication, any unclaimed balance of such money
then remaining will be repaid to the Company.
8.07 REINSTATEMENT.
If the Trustee or Paying Agent is unable to apply any cash or U.S.
Government Securities in accordance with Section 8.03 hereof by reason of any
order or judgment of any court or governmental authority enjoining, restraining
or otherwise prohibiting such application or such cash or U.S. Government
Securities are insufficient to pay the principal of and interest on the Notes
when due, then the Company's obligations under this Agreement and the Notes
shall be revived and reinstated as though no deposit had occurred pursuant to
Section 8.03 hereof until such time as the Trustee or Paying Agent is permitted
to apply all such money in accordance with Section 8.03 hereof; PROVIDED that,
if the Company makes any payment of principal of, premium and Additional
Interest, 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 IX
AMENDMENT, SUPPLEMENT AND WAIVER
9.01 WITHOUT CONSENT OF HOLDERS OF NOTES.
Notwithstanding Section 9.02 of this Agreement, the Company and the
Trustee may amend or supplement this Agreement, the Note Guarantees or the Notes
without the consent of any Holder of a Note:
(a) to cure any ambiguity, defect or inconsistency;
(b) to provide for uncertificated Notes in addition to or in place
of certificated Notes or to alter the provisions of Article 2 hereof (including
the related definitions) in a manner that does not materially adversely affect
any Holder;
(c) to provide for the assumption of the Company's obligations to
the Holders of the Notes in the case of a merger or acquisition by a successor
to the Company pursuant to Article 5 hereof;
(d) to release any Guarantor from any of its obligations under its
Note Guarantee or this Agreement (to the extent permitted by this Agreement);
(e) to make any change that does not materially adversely affect the
legal rights hereunder of any Holder of the Notes; or
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(f) to comply with requirements of the SEC in order to effect or
maintain the qualification of this Agreement under the TIA.
Upon the request of the Company accompanied by a resolution of its Board
of Directors authorizing the execution of any such amended or supplemental
indenture, and upon receipt by the Trustee of the documents described in Section
7.02 hereof, the Trustee shall join with the Company and the Guarantors in the
execution of any amended or supplemental indenture authorized or permitted by
the terms of this Agreement and to make any further appropriate agreements and
stipulations that may be therein contained, but the Trustee shall not be
obligated to enter into such amended or supplemental indenture that affects its
own rights, duties or immunities under this Agreement or otherwise.
9.02 WITH CONSENT OF HOLDERS OF NOTES.
Except as provided below in this Section 9.02 and subject to Section
10.13, the Company and the Trustee may amend or supplement this Agreement
(including Section 4.15 hereof), the Note Guarantees and the Notes with the
consent of the Holders of at least a majority in principal amount of the Notes
(including Additional Notes, if any) then outstanding voting as a single class
(including consents obtained in connection with a tender offer or exchange offer
for, or purchase of, the Notes), and, subject to Sections 6.04 and 6.07 hereof,
any existing Default (other than a Default in the payment of the principal of,
premium and Additional Interest, if any, or interest on the Notes) under, or
compliance with any provision of, this Agreement, the Note Guarantees or the
Notes may be waived with the consent of the Holders of a majority in principal
amount of the then outstanding Notes (including Additional Notes, if any) voting
as a single class (including consents obtained in connection with a tender offer
or exchange offer for, or purchase of, the Notes).
Upon the request of the Company accompanied by a resolution of its Board
of Directors authorizing the execution of any such amended or supplemental
indenture, and upon the filing with the Trustee of evidence satisfactory to the
Trustee of the consent of the Holders of Notes as aforesaid, and upon receipt by
the Trustee of the documents described in Section 7.02 hereof, the Trustee shall
join with the Company in the execution of such amended or supplemental indenture
unless such amended or supplemental indenture directly affects the Trustee's own
rights, duties or immunities under this Agreement or otherwise, in which case
the Trustee may in its discretion, but shall not be obligated to, enter into
such amended or supplemental indenture.
It shall not be necessary for the consent of the Holders of Notes under
this Section 9.02 to approve the particular form of any proposed amendment or
waiver, but it shall be sufficient if such consent approves the substance
thereof.
After an amendment, supplement or waiver under this Section becomes
effective, the Company shall mail to the Holders of Notes affected thereby a
notice briefly describing the amendment, supplement or waiver. Any failure of
the Company to mail such notice, or any defect therein, shall not, however, in
any way impair or affect the validity of any such amended or supplemental
indenture or waiver. Subject to Sections 6.04 and 6.07 hereof, the Holders of a
majority in aggregate principal amount of the Notes (including Additional Notes,
if any) then outstanding voting as a single class may waive compliance in a
particular instance by the Company with any provision of this Agreement or the
Notes. However, with-
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out the consent of each Holder affected, an amendment or waiver under this
Section 9.02 may not (with respect to any Notes held by a non-consenting
Holder):
(a) change the maturity of any Note;
(b) reduce the amount, extend the due date or otherwise affect the
terms of any scheduled payment of interest on or principal of the Notes;
(c) reduce any premium payable upon optional redemption of the
Notes, change the date on which any Notes are subject to redemption or otherwise
alter the provisions with respect to the redemption of the Notes;
(d) make any Note payable in money or currency other than that
stated in the Notes;
(e) modify or change any provision of this Agreement or its related
definitions affecting the subordination of the Notes or any Note Guarantee in a
manner that adversely affects the Holders;
(f) reduce the percentage of Holders necessary to consent to an
amendment or waiver to this Agreement or the Notes;
(g) impair the rights of Holders to receive payments of principal of
or interest on the Notes;
(h) release any Guarantor from any of its obligations under its Note
Guarantee or this Agreement, other than as permitted by this Agreement; or
(i) make any change in these amendment and waiver provisions.
Any amendment to Section 4.15 or the related definitions that could
adversely affect the rights of any Holder shall require the consent of the
Holders of at least 66 2/3% in aggregate principal amount of the Notes then
outstanding.
In connection with any amendment, supplement or waiver, the Company may,
but shall not be obligated to, offer any Holder who consents to such amendment,
supplement or waiver, or to all Holders, consideration for such Holder's consent
to such amendment, supplement or waiver.
9.03 COMPLIANCE WITH TRUST INDENTURE ACT.
Every amendment or supplement to this Agreement or the Notes shall be
set forth in an amended or supplemental indenture that complies with the TIA as
then in effect.
9.04 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, sup-
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plement or amendment becomes effective. An amendment, supplement or waiver
becomes effective in accordance with its terms and thereafter binds every
Holder.
9.05 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 may issue
and the Trustee shall, upon receipt of an Authentication Order, 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.
9.06 TRUSTEE TO SIGN AMENDMENTS, ETC.
The Trustee shall sign any amended or supplemental indenture authorized
pursuant to this Article Nine if the amendment or supplement does not adversely
affect the rights, duties, liabilities or immunities of the Trustee. The Company
may not sign an amendment or supplemental indenture until the Board of Directors
approves it. In executing any amended or supplemental indenture, the Trustee
shall be entitled to receive and (subject to Section 7.01 hereof) shall be fully
protected in relying upon, in addition to the documents required by Section
13.04 hereof, an Officer's Certificate and an opinion of counsel.
ARTICLE X
SUBORDINATION
10.01 AGREEMENT TO SUBORDINATE.
The Company agrees, and each Holder by accepting a Note agrees, that the
Indebtedness evidenced by the Notes is subordinated in right of payment, to the
extent and in the manner provided in this Article Ten, to the prior payment in
full in cash and Cash Equivalents of all Obligations due in respect of all
Senior Debt of the Company (whether outstanding on the date hereof or hereafter
created, incurred, assumed or guaranteed), and that the subordination is for the
benefit of the holders of Senior Debt, including Senior Debt incurred after the
date of this Agreement.
10.02 LIQUIDATION; DISSOLUTION; BANKRUPTCY.
Upon any distribution to creditors of the Company or a Guarantor, as the
case may be, in a total or partial liquidation, dissolution or winding up of the
Company or such Guarantor, as the case may be, or in a bankruptcy,
reorganization, insolvency, receivership or similar proceeding relating to the
Company or its property or such Guarantor or its property, as the case may be,
in an assignment for the benefit of creditors by the Company or such Guarantor,
as the case may be, or any marshaling of the Company's assets and liabilities or
the assets and liabilities of such Guarantor, as the case may be, the holders of
Senior Debt or Guarantor Senior Debt of a Guarantor, as the case may be, will be
entitled to receive payment in full in cash or Cash Equivalents of all
Obligations due in respect of such Senior Debt or such Guarantor Senior Debt, as
the case may be, before the Holders of Notes will be entitled to receive any
payment or
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distribution of any kind or character from the Company or such Guarantor, as the
case may be, with respect to any Obligations on or relating to the Notes or the
Note Guarantee of such Guarantor, as the case may be (other than Permitted
Junior Securities) in the event of any distribution to creditors of the Company
or such Guarantor, as the case may be.
10.03 DEFAULT ON DESIGNATED SENIOR DEBT.
(a) The Company may not make any payment or distribution to the
Trustee or any Holder in respect of Obligations with respect to the Notes and
may not acquire from the Trustee or any Holder any Notes for cash or assets or
otherwise (other than, in either case, Permitted Junior Securities) until all
principal and other Obligations with respect to the Senior Debt have been paid
in full if:
(i) a default in the payment of any principal or other
Obligations with respect to Senior Debt occurs and is continuing beyond
any applicable grace period in the agreement, indenture or other
document governing such Senior Debt; or
(ii) a default, other than a payment default, on Designated
Senior Debt occurs and is continuing that then permits holders of the
Designated Senior Debt to accelerate its maturity and the Trustee
receives a notice of the default (a "PAYMENT BLOCKAGE NOTICE") from the
Representative of any Designated Senior Debt. If the Trustee receives
any such Payment Blockage Notice, no subsequent Payment Blockage Notice
shall be effective for purposes of this Section unless and until at
least 360 days shall have elapsed since the effectiveness of the
immediately prior Payment Blockage Notice. No nonpayment default that
existed or was continuing on the date of delivery of any Payment
Blockage Notice to the Trustee shall be, or be made, the basis for a
subsequent Payment Blockage Notice unless such default shall have been
cured or waived for a period of not less than 90 consecutive days. Any
subsequent action or any breach of any financial covenants for a period
ending after the date of delivery of the initial Payment Blockage Notice
that in either case would give rise to a default pursuant to any
provisions under which a default previously existed or was continuing
will constitute a new default for this purpose.
Notwithstanding anything to the contrary, payments and distributions
made from the trust established pursuant to the provisions of Section 8.05
hereof will be permitted and will not be subordinated so long as the payments
into the trust were made in accordance with the requirements of Section 8.05
hereof and did not violate the subordination provisions when they were made.
(b) The Company may and shall resume payments on and distributions
in respect of any Obligations of the Notes upon:
(i) in the case of a payment default, the date upon which
all payment defaults are cured or waived, and
(ii) in case of a nonpayment default, the earliest of (1) the
date on which all such nonpayment defaults are cured or waived or
otherwise cease to exist, (2) 179 days after the date on which the
applicable Payment Blockage Notice is received or (3) the date on which
the Trustee receives notice from the Representative for such Designated
Senior Debt rescinding the Pay-
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ment Blockage Notice unless the maturity of any Designated Senior Debt
has been accelerated and such acceleration has not been rescinded or
annulled.
10.04 ACCELERATION OF SECURITIES.
If payment of the Notes is accelerated because of an Event of Default,
the Company shall promptly notify holders of Senior Debt of the acceleration.
10.05 WHEN DISTRIBUTION MUST BE PAID OVER.
In the event that the Trustee or any Holder receives any payment of any
Obligations with respect to the Notes (except Permitted Junior Securities or
payments and other distributions made from the defeasance trust described under
Article Eight hereof) when the payment is prohibited by Section 10.03 hereof,
such payment shall be held by the Trustee or such Holder, in trust for the
benefit of, and shall be paid forthwith over and delivered, upon written
request, to, the holders of Senior Debt as their interests may appear or their
Representative under this Agreement or other agreement (if any) pursuant to
which Senior Debt may have been issued, as their respective interests may
appear, for application to the payment of all Obligations with respect to Senior
Debt remaining unpaid to the extent necessary to pay such Obligations in full in
accordance with their terms, after giving effect to any concurrent payment or
distribution to or for the holders of Senior Debt.
With respect to the holders of Senior Debt, the Trustee undertakes to
perform only such obligations on the part of the Trustee as are specifically set
forth in this Article Ten, and no implied covenants or obligations with respect
to the holders of Senior Debt shall be read into this Agreement against the
Trustee. The Trustee shall not be deemed to owe any fiduciary duty to the
holders of Senior Debt, and shall not be liable to any such holders if the
Trustee shall pay over or distribute to or on behalf of Holders or the Company
or any other Person money or assets to which any holders of Senior Debt shall be
entitled by virtue of this Article Ten, except if such payment is made as a
result of the willful misconduct or gross negligence of the Trustee.
10.06 NOTICE BY COMPANY.
The Company shall promptly notify the Trustee and the Paying Agent of
any facts known to the Company that would cause a payment of any Obligations
with respect to the Notes to violate this Article Ten, but failure to give such
notice shall not affect the subordination of the Notes to the Senior Debt as
provided in this Article Ten.
10.07 SUBROGATION.
After all Senior Debt is paid in full and until the Notes are paid in
full, Holders of Notes shall be subrogated (equally and ratably with all other
Indebtedness PARI PASSU with the Notes) to the rights of holders of Senior Debt
to receive distributions applicable to Senior Debt to the extent that
distributions otherwise payable to the Holders of Notes have been applied to the
payment of Senior Debt. A distribution made under this Article Ten to holders of
Senior Debt that otherwise would have been made to Holders of Notes is not, as
between the Company and Holders, a payment by the Company on the Notes.
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10.08 RELATIVE RIGHTS.
This Article Ten defines the relative rights of Holders of Notes and
holders of Senior Debt. Nothing in this Agreement shall:
(i) impair, as between the Company and Holders of Notes, the
obligation of the Company, which is absolute and unconditional, to pay
principal of and interest on the Notes in accordance with their terms;
(ii) affect the relative rights of Holders of Notes and
creditors of the Company other than their rights in relation to holders
of Senior Debt; or
(iii) prevent the Trustee or any Holder of Notes from
exercising its available remedies upon a Default or Event of Default,
subject to the rights of holders and owners of Senior Debt to receive
distributions and payments otherwise payable to Holders of Notes.
If the Company fails because of this Article Ten to pay principal of or
interest on a Note on the due date, the failure is still a Default or Event of
Default.
10.09 SUBORDINATION MAY NOT BE IMPAIRED BY COMPANY.
No right of any holder of Senior Debt to enforce the subordination of
the Indebtedness evidenced by the Notes shall be impaired by any act or failure
to act by the Company or any Holder or by the failure of the Company or any
Holder to comply with this Agreement.
10.10 DISTRIBUTION OR NOTICE TO REPRESENTATIVE.
Whenever a distribution is to be made or a notice given to holders of
Senior Debt, the distribution may be made and the notice given to their
Representative.
Upon any payment or distribution of assets of the Company referred to in
this Article Ten, the Trustee and the Holders of Notes shall be entitled to rely
upon any order or decree made by any court of competent jurisdiction or upon any
certificate of such Representative or of the liquidating trustee or agent or
other Person making any distribution to the Trustee or to the Holders of Notes
for the purpose of ascertaining the Persons entitled to participate in such
distribution, the holders of the Senior Debt and other Indebtedness of the
Company, the amount thereof or payable thereon, the amount or amounts paid or
distributed thereon and all other facts pertinent thereto or to this Article
Ten.
10.11 RIGHTS OF TRUSTEE AND PAYING AGENT.
Notwithstanding the provisions of this Article Ten or any other
provision of this Agreement, the Trustee shall not be charged with knowledge of
the existence of any facts that would prohibit the making of any payment or
distribution by the Trustee, and the Trustee and the Paying Agent may continue
to make payments on the Notes, unless the Trustee shall have received at its
Corporate Trust Office at least five Business Days prior to the date of such
payment written notice of facts that would cause the payment of any Obligations
with respect to the Notes to violate this Article Ten. Only the Company or a
Repre-
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sentative may give the notice. Nothing in this Article Ten shall impair the
claims of, or payments to, the Trustee under or pursuant to Section 7.07 hereof.
The Trustee in its individual or any other capacity may hold Senior Debt
with the same rights it would have if it were not Trustee. Any Agent may do the
same with like rights.
10.12 AUTHORIZATION TO EFFECT SUBORDINATION.
Each Holder of Notes, by the Holder's acceptance thereof, authorizes and
directs the Trustee on such Holder's behalf to take such action as may be
necessary or appropriate to effectuate the subordination as provided in this
Article Ten, and appoints the Trustee to act as such Holder's attorney-in-fact
for any and all such purposes. If the Trustee does not file a proper proof of
claim or proof of debt in the form required in any proceeding referred to in
Section 6.09 hereof at least 30 days before the expiration of the time to file
such claim, the Representatives are hereby authorized to file an appropriate
claim for and on behalf of the Holders of the Notes.
10.13 AMENDMENTS.
No amendment of, or supplement or waiver to, this Agreement shall
adversely affect the rights of any holder of Senior Debt or Guarantor Senior
Debt under the subordination provisions of this Article Ten, without the consent
of such holder.
ARTICLE XI
NOTE GUARANTEES
11.01 GUARANTEE.
Subject to this Article Eleven, each of the Guarantors hereby, jointly
and severally, fully and unconditionally guarantees to each Holder of a Note
authenticated and delivered by the Trustee and to the Trustee and its successors
and assigns, irrespective of the validity and enforceability of this Agreement,
the Notes or the obligations of the Company hereunder or thereunder, that: (a)
the principal of and interest on the Notes will be promptly paid in full when
due, whether at maturity, by acceleration, redemption or otherwise, and interest
on the overdue principal of and interest on the Notes, if any, if lawful, and
all other obligations of the Company to the Holders or the Trustee hereunder or
thereunder will be promptly paid in full or performed, all in accordance with
the terms hereof and thereof; and (b) in case of any extension of time of
payment or renewal of any Notes or any of such other obligations, that same will
be promptly paid in full when due or performed in accordance with the terms of
the extension or renewal, whether at stated maturity, by acceleration or
otherwise. Failing payment when due of any amount so guaranteed or any
performance so guaranteed for whatever reason, the Guarantors shall be jointly
and severally obligated to pay the same immediately. Each Guarantor agrees that
this is a guarantee of payment and not a guarantee of collection.
The Guarantors hereby agree that their obligations hereunder shall be
unconditional, irrespective of the validity or enforceability of the Notes or
this Agreement, the absence of any action to enforce the
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same, any waiver or consent by any Holder of the Notes with respect to any
provisions hereof or thereof, the recovery of any judgment against the Company,
any action to enforce the same or any other circumstance which might otherwise
constitute a legal or equitable discharge or defense of a guarantor. Each
Guarantor hereby waives diligence, presentment, demand of payment, filing of
claims with a court in the event of insolvency or bankruptcy of the Company, any
right to require a proceeding first against the Company, protest, notice and all
demands whatsoever and covenant that this Note Guarantee shall not be discharged
except by complete performance of the obligations contained in the Notes and
this Agreement.
If any Holder or the Trustee is required by any court or otherwise to
return to the Company, the Guarantors or any Custodian, trustee, liquidator or
other similar official acting in relation to either the Company or the
Guarantors, any amount paid by either to the Trustee or such Holder, this Note
Guarantee, to the extent theretofore discharged, shall be reinstated in full
force and effect.
Each Guarantor agrees that it shall not be entitled to any right of
subrogation in relation to the Holders in respect of any obligations guaranteed
hereby until payment in full of all obligations guaranteed hereby. Each
Guarantor further agrees that, as between the Guarantors, on the one hand, and
the Holders and the Trustee, on the other hand, (x) the maturity of the
obligations guaranteed hereby may be accelerated as provided in Article Six
hereof for the purposes of this Note Guarantee, notwithstanding any stay,
injunction or other prohibition preventing such acceleration in respect of the
obligations guaranteed hereby, and (y) in the event of any declaration of
acceleration of such obligations as provided in Article Six hereof, such
obligations (whether or not due and payable) shall forthwith become due and
payable by the Guarantors for the purpose of this Note Guarantee. Each Guarantor
that makes payments under its Note Guarantee is entitled to a contribution from
each other Guarantor in a pro rata amount based on the net assets of each
Guarantor.
11.02 SUBORDINATION OF NOTE GUARANTEE.
The Obligations of each Guarantor under its Note Guarantee pursuant to
this Article Eleven shall be junior and subordinated to the Guarantor Senior
Debt of such Guarantor on the same basis as the Notes are junior and
subordinated to Senior Debt of the Company. For the purposes of the foregoing
sentence, the Trustee and the Holders shall have the right to receive and/or
retain payments by any of the Guarantors only at such times as they may receive
and/or retain payments in respect of the Notes pursuant to this Agreement,
including Article Ten hereof.
11.03 LIMITATION ON GUARANTOR LIABILITY.
Each Guarantor, and by its acceptance of Notes, each Holder, hereby
confirms that it is the intention of all such parties that the Note Guarantee of
such Guarantor not constitute a fraudulent transfer or conveyance for purposes
of Bankruptcy Law, the Uniform Fraudulent Conveyance Act, the Uniform Fraudulent
Transfer Act or any similar federal or state law to the extent applicable to any
Note Guarantee. To effectuate the foregoing intention, the Trustee, the Holders
and the Guarantors hereby irrevocably agree that the obligations of such
Guarantor will be limited to the maximum amount that will, after giving effect
to such maximum amount and all other contingent and fixed liabilities of such
Guarantor that are relevant under such laws, and after giving effect to any
collections from, rights to receive contribution from or payments made by or on
behalf of any other Guarantor in respect of the obligations of such other
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Guarantor under this Article Eleven, result in the obligations of such Guarantor
under its Note Guarantee not constituting a fraudulent transfer or conveyance.
11.04 EXECUTION AND DELIVERY OF NOTE GUARANTEE.
To evidence its Note Guarantee set forth in Section 11.01, each
Guarantor hereby agrees that a notation of such Note Guarantee substantially in
the form included in EXHIBIT E shall be endorsed by an Officer of such Guarantor
on each Note authenticated and delivered by the Trustee and that this Agreement
shall be executed on behalf of such Guarantor by an Officer.
Each Guarantor hereby agrees that its Note Guarantee set forth in
Section 11.01 shall remain in full force and effect notwithstanding any failure
to endorse on each Note a notation of such Note Guarantee.
If an Officer whose signature is on this Agreement or on the Note
Guarantee no longer holds that office at the time the Trustee authenticates the
Note on which a Note Guarantee is endorsed, the Note Guarantee shall be valid
nevertheless.
The delivery of any Note by the Trustee, after the authentication
thereof hereunder, shall constitute due delivery of the Note Guarantee set forth
in this Agreement on behalf of the Guarantors.
11.05 GUARANTORS MAY CONSOLIDATE, ETC., ON CERTAIN TERMS.
Except as otherwise provided in Section 11.06, no Guarantor may
consolidate with or merge with or into (whether or not such Guarantor is the
surviving Person) another Person, whether or not affiliated with such Guarantor,
unless:
(a) either:
(i) such Guarantor will be the surviving or continuing
Person; or
(ii) subject to Section 11.06 hereof, the Person formed by or
surviving any such consolidation or merger assumes all the obligations
of such Guarantor, pursuant to a supplemental indenture in form and
substance satisfactory to the Trustee, under the Note Guarantee, this
Agreement and the Registration Rights Agreement on the terms set forth
herein or therein; and
(b) immediately after giving effect to such transaction, no Default
or Event of Default shall have occurred and be continuing.
In case of any such consolidation, merger, sale or conveyance and upon
the assumption by the successor Person, by supplemental indenture, executed and
delivered to the Trustee and satisfactory in form to the Trustee, of the Note
Guarantee endorsed upon the Notes and the due and punctual performance of all of
the covenants and conditions of this Agreement to be performed by the Guarantor,
such successor Person shall succeed to and be substituted for the Guarantor with
the same effect as if it had been named herein as a Guarantor. Such successor
Person thereupon may cause to be signed any or all of the Note Guarantees to be
endorsed upon all of the Notes issuable hereunder which theretofore shall not
have been signed by the Company and delivered to the Trustee. All the Note
Guarantees so issued shall
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in all respects have the same legal rank and benefit under this Agreement as the
Note Guarantees theretofore and thereafter issued in accordance with the terms
of this Agreement as though all of such Note Guarantees had been issued at the
date of the execution hereof.
Except as set forth in Articles Four and Five hereof, and
notwithstanding clauses (a) and (b) above, nothing contained in this Agreement
or in any of the Notes shall prevent any consolidation or merger of a Guarantor
with or into the Company or another Guarantor, or shall prevent any sale or
conveyance of the property of a Guarantor as an entirety or substantially as an
entirety to the Company or another Guarantor.
11.06 RELEASES FOLLOWING SALE OF ASSETS.
In the event of a sale or other disposition of all of the assets of any
Guarantor, by way of merger, consolidation or otherwise, or a sale or other
disposition of all of the Equity Interests of any Guarantor then held by the
Company and the Restricted Subsidiaries, or the Company properly designates any
Restricted Subsidiary that is a Guarantor as an Unrestricted Subsidiary or any
Guarantor is released from its Guarantees of Indebtedness of the Company such
that such Guarantor would not be required to provide a Guarantee of the Notes
under Section 4.18 hereof, then such Guarantor (in the event of a sale or other
disposition, by way of merger, consolidation or otherwise, of all of the Equity
Interests of such Guarantor) or the corporation acquiring the property (in the
event of a sale or other disposition of all or substantially all of the assets
of such Guarantor) will be released and relieved of any obligations under its
Note Guarantee; PROVIDED that the Net Available Proceeds of such sale or other
disposition are applied in accordance with the applicable provisions of this
Agreement. Upon delivery by the Company to the Trustee of an Officers'
Certificate and an opinion of counsel to the effect that such sale or other
disposition was made by the Company in accordance with the provisions of this
Agreement, the Trustee shall execute any documents reasonably required in order
to evidence the release of any Guarantor from its obligations under its Note
Guarantee.
Any Guarantor not released from its obligations under its Note Guarantee
shall remain liable for the full amount of principal of and interest on the
Notes and for the other obligations of any Guarantor under this Agreement as
provided in this Article Eleven.
ARTICLE XII
SATISFACTION AND DISCHARGE
12.01 SATISFACTION AND DISCHARGE.
This Agreement will be discharged and will cease to be of further effect
(except as to rights of registration of transfer or exchange of Notes which
shall survive until all Notes have been canceled) as to all outstanding Notes
issued hereunder, when:
(1) all the Notes that have been authenticated and delivered
(except lost, stolen or destroyed Notes which have been replaced or paid
and Notes for whose payment money has been
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deposited in trust or segregated and held in trust by the Company and
thereafter repaid to the Company or discharged from this trust) have
been delivered to the Trustee for cancellation, or
(2) (a) all Notes not delivered to the Trustee for
cancellation otherwise have become due and payable or have been called
for redemption pursuant to Section 3.07 hereof, and the Company has
irrevocably deposited or caused to be deposited with the Trustee trust
funds in trust in an amount of money sufficient to pay and discharge the
entire Indebtedness (including all principal and accrued interest) on
the Notes not theretofore delivered to the Trustee for cancellation,
(b) the Company has paid all sums payable by it
under this Agreement,
(c) the Company has delivered irrevocable
instructions to the Trustee to apply the deposited money toward
the payment of the Notes at maturity or on the date of
redemption, as the case may be, and
(d) the Holders have a valid, perfected, exclusive
security interest in this trust.
In addition, the Company must deliver an Officers' Certificate and an
opinion of counsel to the Trustee stating that all conditions precedent to
satisfaction and discharge have been satisfied.
12.02 APPLICATION OF TRUST MONEY.
Subject to the provisions of Section 8.06, all money deposited with the
Trustee pursuant to Section 12.01 shall be held in trust and applied by it, in
accordance with the provisions of the Notes and this Agreement, to the payment,
either directly or through any Paying Agent (including the Company acting as its
own Paying Agent) as the Trustee may determine, to the Persons entitled thereto,
of the principal (and premium, if any) and interest for whose payment such money
has been deposited with the Trustee; but such money need not be segregated from
other funds except to the extent required by law.
If the Trustee or Paying Agent is unable to apply any money or U.S.
Government Securities in accordance with Section 12.01 by reason of any legal
proceeding or by reason of any order or judgment of any court or governmental
authority enjoining, restraining or otherwise prohibiting such application, the
Company's and any Guarantor's obligations under this Agreement and the Notes
shall be revived and reinstated as though no deposit had occurred pursuant to
Section 12.01; PROVIDED that if the Company has made any payment of principal
of, premium and Additional Interest, if any, or interest on any Notes because of
the reinstatement of its obligations, the Company shall be subrogated to the
rights of the Holders of such Notes to receive such payment from the money or
U.S. Government Securities held by the Trustee or Paying Agent.
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ARTICLE XIII
MISCELLANEOUS
13.01 TRUST INDENTURE ACT CONTROLS.
If any provision of this Agreement limits, qualifies or conflicts with
the duties imposed by TIA Section 318(c), the imposed duties shall control.
13.02 NOTICES.
Any notice or communication by the Company, any Guarantor or the Trustee
to the others is duly given if in writing and delivered in Person or mailed by
first class mail (registered or certified, return receipt requested), telex,
telecopier or overnight air courier guaranteeing next day delivery, to the
others' address:
If to the Company and/or any Guarantor:
TransMontaigne Inc.
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Telecopier No.: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Esq.
With a copy to:
▇▇▇▇▇ & ▇▇▇▇▇▇▇, L.L.P.
One ▇▇▇▇▇ Center, Suite 1500
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Telecopier No.: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, Esq.
If to the Trustee:
▇▇▇▇▇ Fargo Bank Minnesota, National Association
Corporate Trust Services
Sixth Street & Marquette Avenue
MAC N9303-120
▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇▇ ▇▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
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The Company, any Guarantor or the Trustee, by notice to the others may
designate additional or different addresses for subsequent notices or
communications.
All notices and communications (other than those sent to Holders) shall
be deemed to have been duly given: at the time delivered by hand, if personally
delivered; five Business Days after being deposited in the mail, postage
prepaid, if mailed; when receipt acknowledged, if telecopied; and the next
Business Day after timely delivery to the courier, if sent by overnight air
courier guaranteeing next day delivery.
Any notice or communication to a Holder shall be mailed by first class
mail, certified or registered, return receipt requested, or by overnight air
courier guaranteeing next day delivery to its address shown on the 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.
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.
13.03 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 Agreement or the Notes. The
Company, the Trustee, the Registrar and anyone else shall have the protection of
TIA Section 312(c).
13.04 CERTIFICATE AND OPINION AS TO CONDITIONS PRECEDENT.
Upon any request or application by the Company to the Trustee to take
any action under this Agreement, the Company 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 13.05 hereof) stating that, in the opinion of the signers, all
conditions precedent and covenants, if any, provided for in this Agreement
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 13.05 hereof) stating that, in the opinion of such counsel, all such
conditions precedent and covenants have been satisfied.
13.05 STATEMENTS REQUIRED IN CERTIFICATE OR OPINION.
Each certificate or opinion with respect to compliance with a condition
or covenant provided for in this Agreement (other than a certificate provided
pursuant to TIA Section 314(a)(4)) shall comply with the provisions of TIA
Section 314(e) and shall include:
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(a) a statement that the Person making such certificate or opinion
has read such covenant or condition;
(b) a brief statement as to the nature and scope of the examination
or investigation upon which the statements or opinions contained in such
certificate or opinion are based;
(c) a statement that, in the opinion of such Person, he or she has
made such examination or investigation as is necessary to enable him to express
an informed opinion as to whether or not such covenant or condition has been
satisfied; and
(d) a statement as to whether or not, in the opinion of such Person,
such condition or covenant has been satisfied.
13.06 RULES BY TRUSTEE AND AGENTS.
The Trustee may make reasonable rules for action by or at a meeting of
Holders. The Registrar or Paying Agent may make reasonable rules and set
reasonable requirements for its functions.
13.07 NO PERSONAL LIABILITY OF DIRECTORS, OFFICERS, EMPLOYEES AND
STOCKHOLDERS.
No past, present or future director, officer, employee, incorporator or
stockholder of the Company or any Guarantor, as such, shall have any liability
for any obligations of the Company or any Guarantor under the Notes, the Note
Guarantees, this Agreement or for any claim based on, in respect of, or by
reason of, such obligations or their creation. Each Holder by accepting a Note
waives and releases all such liability. The waiver and release are part of the
consideration for issuance of the Notes and the Note Guarantees.
13.08 GOVERNING LAW.
THIS INDENTURE, THE NOTES AND THE NOTE GUARANTEES SHALL BE GOVERNED BY
AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF
NEW YORK.
13.09 NO ADVERSE INTERPRETATION OF OTHER AGREEMENTS.
This Agreement 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
Agreement.
13.10 SUCCESSORS.
All agreements of the Company in this Agreement and the Notes shall bind
its successors. All agreements of the Trustee in this Agreement shall bind its
successors. All agreements of each Guarantor in this Agreement shall bind its
successors, except as otherwise provided in Sections 11.05 and 11.06.
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13.11 SEVERABILITY.
In case any provision in this Agreement 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.
13.12 COUNTERPART ORIGINALS.
The parties may sign any number of copies of this Agreement. Each signed
copy shall be an original, but all of them together represent the same
agreement.
13.13 TABLE OF CONTENTS, HEADINGS, ETC.
The Table of Contents, Cross-Reference Table and Headings of the
Articles and Sections of this Agreement have been inserted for convenience of
reference only, are not to be considered a part of this Agreement and shall in
no way modify or restrict any of the terms or provisions hereof.
[Signatures on following pages]
SIGNATURES
Dated as of May 30, 2003
TRANSMONTAIGNE INC.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
-------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: President
TRANSMONTAIGNE PRODUCT SERVICES INC.
COASTAL FUELS MARKETING, INC.
COASTAL TUG AND BARGE, INC., AS
GUARANTORS
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
-------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Chief Executive Officer
TRANSMONTAIGNE TRANSPORT INC.,
AS A GUARANTOR
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
-------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: President
S-1
▇▇▇▇▇ FARGO BANK MINNESOTA, NATIONAL
ASSOCIATION, as Trustee
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
-------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Corporate Trust Officer
S-1
EXHIBIT A-1
[INSERT THE GLOBAL NOTE LEGEND, IF APPLICABLE PURSUANT TO THE PROVISIONS OF THE
INDENTURE]
[INSERT THE PRIVATE PLACEMENT LEGEND, IF APPLICABLE PURSUANT TO THE PROVISIONS
OF THE INDENTURE]
[FACE OF NOTE]
CUSIP No. ▇▇▇▇▇▇▇▇▇
ISIN No. US893934AA72
[9 1/8% [Series A] [Series B] Senior Subordinated Notes due 2010
No. ___ $____________
TRANSMONTAIGNE INC.
promises to pay to _____________________________________________________________
or registered assigns,
the principal sum of ___________________________________________________________
Dollars on June 1, 2010.
Interest Payment Dates: June 1 and December 1
Record Dates: May 15 and November 15
TRANSMONTAIGNE INC.
By:
-------------------------------------
Name:
Title:
This is one of the Notes referred to
in the within-mentioned Indenture:
Dated: _______________, ____
▇▇▇▇▇ FARGO BANK MINNESOTA,
NATIONAL ASSOCIATION, as Trustee
By:
------------------------------------
A-1-1
Authorized Signatory
A-1-2
[BACK OF NOTE]
9 1/8% [SERIES A] [SERIES B] SENIOR SUBORDINATED NOTES DUE 2010
Capitalized terms used herein shall have the meanings assigned to them
in the Indenture referred to below unless otherwise indicated.
INTEREST.
TransMontaigne Inc., a Delaware corporation (the "COMPANY"),
promises to pay interest on the principal amount of this Note at 9 1/8% per
annum from June 1, 2003 until maturity and shall pay the Additional Interest
payable pursuant to Section 5 of the Registration Rights Agreement referred to
below. The Company will pay interest and Additional Interest semi-annually in
arrears on June 1 and December 1 of each year, or if any such day is not a
Business Day, on the next succeeding Business Day (each an "INTEREST PAYMENT
DATE"). Interest on the Notes will accrue from the most recent date to which
interest has been paid or, if no interest has been paid, from the date of
issuance; PROVIDED that if there is no existing Default in the payment of
interest, and if this Note is authenticated between a record date referred to on
the face hereof and the next succeeding Interest Payment Date, interest shall
accrue from such next succeeding Interest Payment Date; PROVIDED, FURTHER, that
the first Interest Payment Date shall be December 1, 2003. The Company shall pay
interest (including post-petition interest in any proceeding under any
Bankruptcy Law) on overdue principal and premium, if any, from time to time on
demand at a rate that is 1% per annum in excess of the rate then in effect; it
shall pay interest (including post-petition interest in any proceeding under any
Bankruptcy Law) on overdue installments of interest and Additional 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.
METHOD OF PAYMENT. The Company will pay interest on the Notes (except
defaulted interest) and Additional Interest to the Persons who are registered
Holders of Notes at the close of business on the May 15 or November 15 next
preceding the Interest Payment Date, even if such Notes are canceled after such
record date and on or before such Interest Payment Date, except as provided in
Section 2.12 of the Indenture with respect to defaulted interest. The Notes will
be payable as to principal, premium and Additional Interest, if any, and
interest at the office or agency of the Company maintained for such purpose
within or without The City and State of
New York, or, at the option of the
Company, payment of interest and Additional Interest may be made by check mailed
to the Holders at their addresses set forth in the register of Holders, and
provided that payment by wire transfer of immediately available funds will be
required with respect to principal of and interest, premium and Additional
Interest on, all Global Notes and all other Notes the Holders of which shall
have provided wire transfer instructions to the Company or the Paying Agent at
least ten Business Days prior to the applicable payment date. Such payment shall
be in such coin or currency of the United States of America as at the time of
payment is legal tender for payment of public and private debts.
AGENT AND REGISTRAR. Initially, ▇▇▇▇▇ Fargo Bank Minnesota, National
Association, the Trustee under the Indenture, will act as Paying Agent and
Registrar. The Company may change any Paying Agent or Registrar without notice
to any Holder. The Company or any of its Subsidiaries may act in any such
capacity.
INDENTURE. The Company issued the Notes under an Indenture dated as of
May 30, 2003 ("INDENTURE") between the Company, the Guarantors listed on the
signature page therein (the "GUARANTORS") and the Trustee. The terms of the
Notes include those stated in the Indenture and those made part of the
A-1-3
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. To the extent any provision of this Note conflicts with the express
provisions of the Indenture, the provisions of the Indenture shall govern and be
controlling. The Initial Notes are obligations of the Company limited to $200.0
million in aggregate principal amount.
OPTIONAL REDEMPTION.
(a) At any time prior to June 1, 2007, the Company, at its option,
may redeem in whole or in part the Notes at a redemption price equal to the sum
of (i) the principal amount thereof, PLUS (ii) accrued and unpaid interest, if
any, to the redemption date, plus (iii) the Applicable Premium at the redemption
date.
(b) Except as set forth in clause (a) above and clause (c) below,
the Company shall not have the option to redeem the Notes pursuant to this
paragraph prior to June 1, 2007. Thereafter, the Company shall have the option
to redeem the Notes, in whole or in part, at the redemption prices (expressed as
percentages of principal amount) set forth below plus accrued and unpaid
interest and Additional Interest thereon, if any, to the applicable redemption
date, if redeemed during the twelve-month period beginning on June 1 of the
years indicated below:
Year Percentage
---- ----------
2007.................................................. 104.563%
2008.................................................. 102.281%
2009 and thereafter................................... 100.000%
(c) Notwithstanding the provisions of clause (a) above, at any time
on or prior to June 1, 2006, the Company may on one or more occasions redeem up
to an aggregate of 35% of the principal amount of Notes issued under the
Indenture at a redemption price equal to 109.125% of the principal amount
thereof plus accrued and unpaid interest and Additional Interest thereon, if
any, to the redemption date with the net cash proceeds of one or more Equity
Offerings of the Company to the extent the net cash proceeds thereof are
contributed to the Company as a capital contribution to the common equity of the
Company; PROVIDED that at least 65% of the aggregate principal amount of the
Notes remains outstanding immediately after the occurrence of such redemption
and that such redemption occurs within 90 days of the date of the closing of
such Equity Offering.
MANDATORY REDEMPTION.
The Company shall not be required to make mandatory redemption or
sinking fund payments with respect to the Notes.
REPURCHASE AT OPTION OF HOLDER. Upon the occurrence of a Change of
Control, the Company shall be required to make an offer (a "CHANGE OF CONTROL
OFFER") to each Holder 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
and Additional Interest thereon, if any, to the date of purchase (the "CHANGE OF
CONTROL PAYMENT"). Within 30 days following any Change of Control, the Company
shall mail a notice to each Holder setting forth the procedures governing the
Change of Control Offer as required by the Indenture.
A-1-4
NOTICE OF REDEMPTION. Notice of redemption will be mailed at least 30
days but not more than 60 days before the redemption date to each Holder whose
Notes are to be redeemed at its registered address. Notes in denominations
larger than $1,000 may be redeemed in part but only in whole multiples of
$1,000, unless all of the Notes held by a Holder are to be redeemed. On and
after the redemption date interest ceases to accrue on Notes or portions thereof
called for redemption.
DENOMINATIONS, TRANSFER, EXCHANGE. The Notes are in registered form
without coupons in denominations of $1,000 and integral multiples of $1,000. The
transfer of Notes may be registered and Notes may be exchanged as provided in
the Indenture. The Registrar and the Trustee may require a Holder, among other
things, to furnish appropriate endorsements and transfer documents and the
Company may require a Holder to pay any taxes and fees required by law or
permitted by the Indenture. The Company need not exchange or register the
transfer of any Note or portion of a Note selected for redemption, except for
the unredeemed portion of any Note being redeemed in part. Also, the Company
need not exchange or register the transfer of any Notes for a period of 15 days
before a selection of Notes to be redeemed or during the period between a record
date and the succeeding Interest Payment Date.
PERSONS DEEMED OWNERS. The registered Holder of a Note may be treated as
its owner for all purposes.
AMENDMENT, SUPPLEMENT AND WAIVER. Subject to certain exceptions, the
Indenture, the Note Guarantees or the Notes may be amended or supplemented with
the consent of the Holders of at least a majority in principal amount of the
then outstanding Notes and Additional Notes, if any, voting as a single class,
and any existing default or compliance with any provision of the Indenture, the
Note Guarantees or the Notes may be waived with the consent of the Holders of a
majority in principal amount of the then outstanding Notes and Additional Notes,
if any, voting as a single class. Without the consent of any Holder of a Note,
the Indenture, the Note Guarantees 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 or to alter the
provisions of Article 2 of the Indenture (including the related definitions) in
a manner that does not materially adversely affect any Holder; to provide for
the assumption of the Company's obligations to the Holders of the Notes in the
case of a merger or acquisition by a successor to the Company pursuant to
Article 5 of the Indenture; to release any Guarantor from any of its obligations
under its Note Guarantee or the Indenture (to the extent permitted by the
Indenture); to make any change that would that does not materially adversely
affect the legal rights hereunder of any Holder of the Notes; or to comply with
requirements of the SEC in order to effect or maintain the qualification of this
Agreement under the Trust Indenture Act.
DEFAULTS AND REMEDIES. Events of Default include: (i) default for 30
days in the payment when due of interest or Additional Interest, if any, on the
Notes; (ii) default in payment when due of principal of or premium, if any, on
the Notes when the same becomes due and payable at maturity, upon redemption,
upon purchase, upon acceleration or otherwise (whether or not such payment is
prohibited by the subordination provisions of the Indenture); (iii) failure by
the Company to comply with Section 4.15 or 5.01 of the Indenture; (iv) failure
by the Company for 45 days after notice to the Company by the Trustee or the
Holders of at least 25% in aggregate principal amount of the Notes (including
Additional Notes, if any) then outstanding voting as a single class to comply
with certain other agreements in the Indenture; (v) default under certain other
agreements relating to an aggregate amount of Indebtedness of the Company equal
to or exceeding $10.0 million which default results in, among other things, the
acceleration of such Indebtedness prior to its express maturity; (vi) certain
final judgments for the payment of money in excess of $10.0 million in the
aggregate that remain undischarged for a period of 60 days; (vii) certain events
of bankruptcy or insolvency with respect to the Company or any of its
Significant Subsidiaries;
A-1-5
and (viii) except as permitted by the Indenture, any Note Guarantee of a
Significant Subsidiary ceases to be in full force and effect or is declared null
and void and unenforceable or is found to be invalid or any Guarantor denies its
liability under such Note Guarantee. If any Event of Default occurs and is
continuing, the Trustee or the Holders of at least 25% in principal amount of
the then outstanding Notes may declare all the Notes to be due and payable.
Notwithstanding the foregoing, in the case of an Event of Default arising from
certain events of bankruptcy or insolvency, all outstanding Notes will become
due and payable without further action or notice. Holders may not enforce the
Indenture or the Notes except as provided in the Indenture. Subject to certain
limitations, Holders of a majority in principal amount of the then outstanding
Notes may direct the Trustee in its exercise of any trust or power. The Trustee
may withhold from Holders of the Notes notice of any continuing Default (except
a Default relating to the payment of principal or interest) if it determines
that withholding notice is in their interest. The Holders of a majority in
aggregate principal amount of the Notes then outstanding by notice to the
Trustee may on behalf of the Holders of all of the Notes waive any existing
Default and its consequences under the Indenture except a continuing Default in
the payment of interest on, premium and Additional Interest, if any, or the
principal of, the Notes. The Company is required to deliver to the Trustee
annually a statement regarding compliance with the Indenture, and the Company is
required upon becoming aware of any Default, to deliver to the Trustee a
statement specifying such Default.
TRUSTEE 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.
NO RECOURSE AGAINST OTHERS. A director, officer, employee, incorporator
or stockholder of the Company or any Guarantor, as such, shall not have any
liability for any obligations of the Company or any Guarantor under the Notes,
the Note 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. The waiver and release are part of
the consideration for the issuance of the Notes and the Guarantees.
AUTHENTICATION. This Note shall not be valid until authenticated by the
manual signature of the Trustee or an authenticating agent.
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).
ADDITIONAL RIGHTS OF HOLDERS OF RESTRICTED GLOBAL NOTES AND RESTRICTED
DEFINITIVE NOTES. In addition to the rights provided to Holders of Notes under
the Indenture, Holders of Restricted Global Notes and Restricted Definitive
Notes shall have all the rights set forth in the A/B Exchange Registration
Rights Agreement dated as of May 30, 2003, between the Company and the parties
named on the signature pages thereof (the "REGISTRATION RIGHTS AGREEMENT").
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.
A-1-6
The Company will furnish to any Holder upon written request and without
charge a copy of the Indenture and/or the Registration Rights Agreement.
Requests may be made to:
TransMontaigne Inc.
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Esq.
A-1-7
ASSIGNMENT FORM
To assign this Note, fill in the form below:
(I) or (we) assign and transfer this Note to: __________________________________
(Insert assignee's legal name)
________________________________________________________________________________
(Insert assignee's soc. sec. or tax I.D. no.)
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
(Print or type assignee's name, address and zip code)
and irrevocably appoint ________________________________________________________
to transfer this Note on the books of the Company. The agent may substitute
another to act for him.
Date:
----------------------
Your Signature:
--------------------------
(Sign exactly as your name appears on
the face of this Note)
Signature Guarantee*:
-------------------------
* Participant in a recognized Signature Guarantee Medallion Program (or other
signature guarantor acceptable to the Trustee).
A-1-8
OPTION OF HOLDER TO ELECT PURCHASE
If you want to elect to have this Note purchased by the Company pursuant
to 4.10 or 4.15 of the Indenture, check the appropriate box below:
/ / Section 4.10 / / Section 4.15
If you want to elect to have only part of the Note purchased by the
Company pursuant to Section 4.10 or 4.15 of the Indenture, state the amount you
elect to have purchased:
$____________________
Date:
-----------------------
Your Signature:
--------------------------
(Sign exactly as your name appears on
the face of this Note)
Tax Identification No.:
------------------
Signature Guarantee*:
-------------------------
* Participant in a recognized Signature Guarantee Medallion Program (or other
signature guarantor acceptable to the Trustee).
A-1-9
SCHEDULE OF EXCHANGES OF INTERESTS IN THE GLOBAL NOTE*
The following exchanges of a part of this Global Note for an interest in
another Global Note or for a Definitive Note, or exchanges of a part of another
Global Note or Definitive Note for an interest in this Global Note, have been
made:
Principal Amount
Amount of de- Amount of in- [at maturity] of
crease in Principal crease in Principal this Global Note Signature of
Amount [at ma- Amount [at ma- following such authorized offi-
turity] of this turity] of this decrease (or in- cer of Trustee or
Date of Exchange Global Note Global Note crease) Note Custodian
---------------- ------------------- ------------------- ---------------- ----------------
* This schedule should be included only if the Note is issued in global form.
A-1-10
EXHIBIT A-2
THE RIGHTS ATTACHING TO THIS REGULATION S TEMPORARY GLOBAL NOTE, AND THE
CONDITIONS AND PROCEDURES GOVERNING ITS EXCHANGE FOR CERTIFICATED NOTES, ARE AS
SPECIFIED IN THE INDENTURE (AS DEFINED HEREIN). NEITHER THE HOLDER NOR THE
BENEFICIAL OWNERS OF THIS REGULATION S TEMPORARY GLOBAL NOTE SHALL BE ENTITLED
TO RECEIVE PAYMENT OF INTEREST HEREON.
UNLESS AND UNTIL IT IS EXCHANGED IN WHOLE OR IN PART FOR NOTES IN DEFINITIVE
FORM, THIS NOTE MAY NOT BE TRANSFERRED EXCEPT AS A WHOLE BY THE DEPOSITARY TO A
NOMINEE OF THE DEPOSITARY OR BY A NOMINEE OF THE DEPOSITARY TO THE DEPOSITARY OR
ANOTHER NOMINEE OF THE DEPOSITARY OR BY THE DEPOSITARY OR ANY SUCH NOMINEE TO A
SUCCESSOR DEPOSITARY OR A NOMINEE OF SUCH SUCCESSOR DEPOSITARY. UNLESS THIS
CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST
COMPANY (55 ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇) ("▇▇▇"), 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.
THE NOTE (OR ITS PREDECESSORS) EVIDENCED HEREBY WAS ORIGINALLY ISSUED IN A
TRANSACTION EXEMPT FROM REGISTRATION UNDER ▇▇▇▇▇▇▇ ▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), AND THE NOTE
EVIDENCED HEREBY MAY NOT BE OFFERED, SOLD OR OTHERWISE TRANSFERRED IN THE
ABSENCE OF SUCH REGISTRATION OR AN APPLICABLE EXEMPTION THEREFROM. EACH
PURCHASER OF THE NOTE EVIDENCED HEREBY IS HEREBY NOTIFIED THAT THE SELLER MAY BE
RELYING ON THE EXEMPTION FROM THE PROVISIONS OF SECTION 5 OF THE SECURITIES ACT
PROVIDED BY RULE 144A THEREUNDER OR ANOTHER EXEMPTION UNDER THE SECURITIES ACT.
THE HOLDER OF THE NOTE EVIDENCED HEREBY AGREES FOR THE BENEFIT OF TRANSMONTAIGNE
INC. (THE "COMPANY") THAT (A) SUCH NOTE MAY BE RESOLD, PLEDGED OR OTHERWISE
TRANSFERRED ONLY (i) (a) TO A PERSON WHO THE SELLER REASONABLY BELIEVES IS A
QUALIFIED INSTITUTIONAL BUYER (AS DEFINED IN RULE 144A UNDER THE SECURITIES
ACT), PURCHASING FOR ITS OWN ACCOUNT IN A TRANSACTION MEETING THE REQUIREMENTS
OF RULE 144A UNDER THE SECURITIES ACT, (b) IN A TRANSACTION MEETING THE
REQUIREMENTS OF RULE 144 OF THE SECURITIES ACT, (c) OUTSIDE THE UNITED STATES TO
A FOREIGN PERSON IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE 903 OR
RULE 904 OF REGULATION S UNDER THE SECURITIES ACT, (d) TO AN "ACCREDITED
INVESTOR" WITHIN THE MEANING OF RULE 501(A)(1), (2), (3) OR (7) OF REGULATION D
UNDER THE SECURITIES ACT (AN "INSTITUTIONAL ACCREDITED INVESTOR") THAT IS
PURCHASING AT LEAST $100,000 OF THE NOTES FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT
OF AN INSTITUTIONAL ACCREDITED INVESTOR AND, PRIOR TO SUCH TRANSFER FURNISHES
THE TRUSTEE A SIGNED LETTER CONTAINING CERTIAN REPRESENTATIONS AND AGREEMENTS
RELATING TO THE TRANSFER OF
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THIS NOTE (THE FORM OF WHICH MAY BE OBTAINED FROM THE TRUSTEE), IF THE COMPANY
SO REQUETS OR (e) IN ACCORDANCE WITH ANOTHER EXEMPTION FROM THE REGISTRATION
REQUIREMENTS OF THE SECURITIES ACT PROVIDED THAT IN THE CASE OF A TRANSFER
PURSUANT TO CLAUSE (e) SUCH TRANSFER IS SUBJECT TO THE RECEIPT BY THE REGISTRAR
(AND THE COMPANY, IF IT SO REQUESTS) OF A CERTIFICATION OF THE TRANSFEROR AND AN
OPINION OF COUNSEL TO THE EFFECT THAT SUCH TRANSFER IS IN COMPLIANCE WITH THE
SECURITIES ACT, (ii) TO THE COMPANY OR (iii) PURSUANT TO AN EFFECTIVE
REGISTRATION STATEMENT UNDER THE SECURITIES ACT AND, IN EACH CASE, IN ACCORDANCE
WITH ANY APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES OR ANY
OTHER APPLICABLE JURISDICTION AND THE INDENTURE GOVERNING THE NOTES AND (B) THE
HOLDER WILL, AND EACH SUBSEQUENT HOLDER IS REQUIRED TO, NOTIFY ANY PURCHASER
FROM IT OF THE NOTE EVIDENCED HEREBY OF THE RESALE RESTRICTIONS SET FORTH IN (A)
ABOVE.
A1-2
[FACE OF REGULATION S TEMPORARY GLOBAL NOTE]
CUSIP No. ▇▇▇▇▇▇▇▇▇
▇▇▇▇ ▇▇. ▇▇▇▇▇▇▇▇▇▇▇▇
9 1/8% [Series A] [Series B] Senior Subordinated Notes due 2010
No. ___ $____________
TRANSMONTAIGNE INC.
promises to pay to _____________________________________________________________
or registered assigns,
the principal sum of ___________________________________________________________
Dollars on June 1, 2010.
Interest Payment Dates: June 1 and December 1
Record Dates: May 15 and November 15
TRANSMONTAIGNE INC.
By:
-------------------------------------
Name:
Title:
This is one of the Notes referred to
in the within-mentioned Indenture:
Dated: ________________, ____
▇▇▇▇▇ FARGO BANK MINNESOTA,
NATIONAL ASSOCIATION, as Trustee
By:
-------------------------------------
Authorized Signatory
A-2-1
[BACK OF REGULATION S TEMPORARY GLOBAL NOTE]
9 1/8% [SERIES A] [SERIES B] SENIOR SUBORDINATED NOTES DUE 2010
Capitalized terms used herein shall have the meanings assigned to them
in the Indenture referred to below unless otherwise indicated.
INTEREST. TransMontaigne Inc., a Delaware corporation (the "COMPANY"),
promises to pay interest on the principal amount of this Note at 9 1/8% per
annum from June 1, 2003 until maturity and shall pay the Additional Interest
payable pursuant to Section 5 of the Registration Rights Agreement referred to
below. The Company will pay interest and Additional Interest semi-annually in
arrears on June 1 and December 1 of each year, or if any such day is not a
Business Day, on the next succeeding Business Day (each an "INTEREST PAYMENT
DATE"). Interest on the Notes will accrue from the most recent date to which
interest has been paid or, if no interest has been paid, from the date of
issuance; PROVIDED that if there is no existing Default in the payment of
interest, and if this Note is authenticated between a record date referred to on
the face hereof and the next succeeding Interest Payment Date, interest shall
accrue from such next succeeding Interest Payment Date; PROVIDED, FURTHER, that
the first Interest Payment Date shall be December 1, 2003. The Company shall pay
interest (including post-petition interest in any proceeding under any
Bankruptcy Law) on overdue principal and premium, if any, from time to time on
demand at a rate that is 1% per annum in excess of the rate then in effect; it
shall pay interest (including post-petition interest in any proceeding under any
Bankruptcy Law) on overdue installments of interest and Additional 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.
METHOD OF PAYMENT. The Company will pay interest on the Notes (except
defaulted interest) and Additional Interest to the Persons who are registered
Holders of Notes at the close of business on the May 15 or November 15 next
preceding the Interest Payment Date, even if such Notes are canceled after such
record date and on or before such Interest Payment Date, except as provided in
Section 2.12 of the Indenture with respect to defaulted interest. The Notes will
be payable as to principal, premium and Additional Interest, if any, and
interest at the office or agency of the Company maintained for such purpose
within or without the City and State of
New York, or, at the option of the
Company, payment of interest and Additional Interest may be made by check mailed
to the Holders at their addresses set forth in the register of Holders, and
provided that payment by wire transfer of immediately available funds will be
required with respect to principal of and interest, premium and Additional
Interest on, all Global Notes and all other Notes the Holders of which shall
have provided wire transfer instructions to the Company or the Paying Agent at
least ten Business Days prior to the applicable payment date. Such payment shall
be in such coin or currency of the United States of America as at the time of
payment is legal tender for payment of public and private debts.
AGENT AND REGISTRAR. Initially, ▇▇▇▇▇ Fargo Bank Minnesota, National
Association, the Trustee under the Indenture, will act as Paying Agent and
Registrar. The Company may change any Paying Agent or Registrar without notice
to any Holder. The Company or any of its Subsidiaries may act in any such
capacity.
A-2-2
INDENTURE. The Company issued the Notes under an Indenture dated as of
May 30, 2003 ("INDENTURE") between the Company, the Guarantors listed on the
signature page therein (the "GUARANTORS") and the Trustee. The terms of the
Notes include those stated in the Indenture and those made part of the Indenture
by reference to the Trust Indenture Act of 1939, as amended (15 U.S. Code
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. To the
extent any provision of this Note conflicts with the express provisions of the
Indenture, the provisions of the Indenture shall govern and be controlling. The
Initial Notes are obligations of the Company limited to $200.0 million in
aggregate principal amount.
OPTIONAL REDEMPTION.
(a) At any time prior to June 1, 2007, the Company, at its option,
may redeem in whole or in part the Notes at a redemption price equal to the sum
of (i) the principal amount thereof, PLUS (ii) accrued and unpaid interest, if
any, to the redemption date, plus (iii) the Applicable Premium at the redemption
date.
(b) Except as set forth in clause (a) above and clause (c) below,
the Company shall not have the option to redeem the Notes prior to June 1, 2007.
Thereafter, the Company shall have the option to redeem the Notes, in whole or
in part, at the redemption prices (expressed as percentages of principal amount)
set forth below plus accrued and unpaid interest and Additional Interest
thereon, if any, to the applicable redemption date, if redeemed during the
twelve-month period beginning on June 1 of the years indicated below:
Year Percentage
---- ----------
2007..................................................... 104.563%
2008..................................................... 102.281%
2009 and thereafter...................................... 100.000%
(c) Notwithstanding the provisions of clause (a) above, at any time
on or prior to June 1, 2006, the Company may on one or more occasions redeem up
to an aggregate of 35% of the principal amount of Notes issued under the
Indenture at a redemption price equal to 109.125% of the principal amount
thereof plus accrued and unpaid interest and Additional Interest thereon, if
any, to the redemption date with the net cash proceeds of one or more Equity
Offerings of the Company to the extent the net cash proceeds thereof are
contributed to the Company as a capital contribution to the common equity of the
Company; PROVIDED that at least 65% of the aggregate principal amount of the
Notes remains outstanding immediately after the occurrence of such redemption
and that such redemption occurs within 90 days of the date of the closing of
such Equity Offering.
MANDATORY REDEMPTION.
The Company shall not be required to make mandatory redemption or
sinking fund payments with respect to the Notes.
REPURCHASE AT OPTION OF HOLDER. Upon the occurrence of a Change of
Control, the Company shall be required to make an offer (a "CHANGE OF CONTROL
OFFER") to each Holder 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
A-2-3
101% of the aggregate principal amount thereof plus accrued and unpaid interest
and Additional Interest thereon, if any, to the date of purchase (the "CHANGE OF
CONTROL PAYMENT"). Within 30 days following any Change of Control, the Company
shall mail a notice to each Holder setting forth the procedures governing the
Change of Control Offer as required by the Indenture.
NOTICE OF REDEMPTION. Notice of redemption will be mailed at least 30
days but not more than 60 days before the redemption date to each Holder whose
Notes are to be redeemed at its registered address. Notes in denominations
larger than $1,000 may be redeemed in part but only in whole multiples of
$1,000, unless all of the Notes held by a Holder are to be redeemed. On and
after the redemption date interest ceases to accrue on Notes or portions thereof
called for redemption.
DENOMINATIONS, TRANSFER, EXCHANGE. The Notes are in registered form
without coupons in denominations of $1,000 and integral multiples of $1,000. The
transfer of Notes may be registered and Notes may be exchanged as provided in
the Indenture. The Registrar and the Trustee may require a Holder, among other
things, to furnish appropriate endorsements and transfer documents and the
Company may require a Holder to pay any taxes and fees required by law or
permitted by the Indenture. The Company need not exchange or register the
transfer of any Note or portion of a Note selected for redemption, except for
the unredeemed portion of any Note being redeemed in part. Also, the Company
need not exchange or register the transfer of any Notes for a period of 15 days
before a selection of Notes to be redeemed or during the period between a record
date and the succeeding Interest Payment Date.
PERSONS DEEMED OWNERS. The registered Holder of a Note may be treated as
its owner for all purposes.
AMENDMENT, SUPPLEMENT AND WAIVER. Subject to certain exceptions, the
Indenture, the Note Guarantees or the Notes may be amended or supplemented with
the consent of the Holders of at least a majority in principal amount of the
then outstanding Notes and Additional Notes, if any, voting as a single class,
and any existing default or compliance with any provision of the Indenture, the
Note Guarantees or the Notes may be waived with the consent of the Holders of a
majority in principal amount of the then outstanding Notes and Additional Notes,
if any, voting as a single class. Without the consent of any Holder of a Note,
the Indenture, the Note Guarantees 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 or to alter the
provisions of Article 2 of the Indenture (including the related definitions) in
a manner that does not materially adversely affect any Holder; to provide for
the assumption of the Company's obligations to the Holders of the Notes in the
case of a merger or acquisition by a successor to the Company pursuant to
Article 5 of the Indenture; to release any Guarantor from any of its obligations
under its Note Guarantee or the Indenture (to the extent permitted by the
Indenture); to make any change that would that does not materially adversely
affect the legal rights hereunder of any Holder of the Notes; or to comply with
requirements of the SEC in order to effect or maintain the qualification of this
Agreement under the Trust Indenture Act.
DEFAULTS AND REMEDIES. Events of Default include: (i) default for 30
days in the payment when due of interest or Additional Interest, if any, on the
Notes; (ii) default in payment when due of principal of or premium, if any, on
the Notes when the same becomes due and payable at maturity, upon redemption,
upon purchase, upon acceleration or otherwise (whether or not such payment is
prohibited by the subordination provisions of the Indenture); (iii) failure by
the Company to comply with Section 4.15
A-2-4
or 5.01 of the Indenture; (iv) failure by the Company for 45 days after notice
to the Company by the Trustee or the Holders of at least 25% in aggregate
principal amount of the Notes (including Additional Notes, if any) then
outstanding voting as a single class to comply with certain other agreements in
the Indenture; (v) default under certain other agreements relating to an
aggregate amount of Indebtedness of the Company equal to or exceeding $10.0
million which default results in, among other things, the acceleration of such
Indebtedness prior to its express maturity; (vi) certain final judgments for the
payment of money in excess of $10.0 million in the aggregate that remain
undischarged for a period of 60 days; (vii) certain events of bankruptcy or
insolvency with respect to the Company or any of its Significant Subsidiaries;
and (viii) except as permitted by the Indenture, any Note Guarantee of a
Significant Subsidiary ceases to be in full force and effect or is declared null
and void and unenforceable or is found to be invalid or any Guarantor denies its
liability under such Note Guarantee. If any Event of Default occurs and is
continuing, the Trustee or the Holders of at least 25% in principal amount of
the then outstanding Notes may declare all the Notes to be due and payable.
Notwithstanding the foregoing, in the case of an Event of Default arising from
certain events of bankruptcy or insolvency, all outstanding Notes will become
due and payable without further action or notice. Holders may not enforce the
Indenture or the Notes except as provided in the Indenture. Subject to certain
limitations, Holders of a majority in principal amount of the then outstanding
Notes may direct the Trustee in its exercise of any trust or power. The Trustee
may withhold from Holders of the Notes notice of any continuing Default (except
a Default relating to the payment of principal or interest) if it determines
that withholding notice is in their interest. The Holders of a majority in
aggregate principal amount of the Notes then outstanding by notice to the
Trustee may on behalf of the Holders of all of the Notes waive any existing
Default and its consequences under the Indenture except a continuing Default in
the payment of interest on, premium and Additional Interest, if any, or the
principal of, the Notes. The Company is required to deliver to the Trustee
annually a statement regarding compliance with the Indenture, and the Company is
required upon becoming aware of any Default, to deliver to the Trustee a
statement specifying such Default.
TRUSTEE 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.
NO RECOURSE AGAINST OTHERS. A director, officer, employee, incorporator
or stockholder of the Company or any Guarantor, as such, shall not have any
liability for any obligations of the Company or any Guarantor under the Notes 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. The waiver and release are part of the
consideration for the issuance of the Notes and the Guarantees.
AUTHENTICATION. This Note shall not be valid until authenticated by the
manual signature of the Trustee or an authenticating agent.
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).
ADDITIONAL RIGHTS OF HOLDERS OF RESTRICTED GLOBAL NOTES AND RESTRICTED
DEFINITIVE NOTES. In addition to the rights provided to Holders of Notes under
the Indenture, Holders of Restricted
A-2-5
Global Notes and Restricted Definitive Notes shall have all the rights set forth
in the A/B Exchange Registration Rights Agreement dated as of May 30, 2003,
between the Company and the parties named on the signature pages thereof (the
"REGISTRATION RIGHTS AGREEMENT").
CUSIP NUMBERS. Pursuant to a recommendation promulgated by the Committee
on Uniform Security Identification Procedures, the Company has caused CUSIP
numbers to be printed on the Notes and the Trustee may use CUSIP numbers in
notices of redemption as a convenience to Holders. No representation is made as
to the accuracy of such numbers either as printed on the Notes or as contained
in any notice of redemption and reliance may be placed only on the other
identification numbers placed thereon.
The Company will furnish to any Holder upon written request and without
charge a copy of the Indenture and/or the Registration Rights Agreement.
Requests may be made to:
TransMontaigne Inc.
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Esq.
A-2-6
ASSIGNMENT FORM
To assign this Note, fill in the form below:
(I) or (we) assign and transfer this Note to: __________________________________
(Insert assignee's legal name)
________________________________________________________________________________
(Insert assignee's soc. sec. or tax I.D. no.)
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
(Print or type assignee's name, address and zip code)
and irrevocably appoint ________________________________________________________
to transfer this Note on the books of the Company. The agent may substitute
another to act for him.
Date:
------------------------
Your Signature:
--------------------------
(Sign exactly as your name appears on
the face of this Note)
Signature Guarantee*:
-------------------------
* Participant in a recognized Signature Guarantee Medallion Program (or other
signature guarantor acceptable to the Trustee).
A-2-7
OPTION OF HOLDER TO ELECT PURCHASE
If you want to elect to have this Note purchased by the Company pursuant
to Section 4.10 or 4.15 of the Indenture, check the appropriate box below:
/ / Section 4.10 / / Section 4.15
If you want to elect to have only part of the Note purchased by the
Company pursuant to Section 4.10 or 4.15 of the Indenture, state the amount you
elect to have purchased:
$___________________
Date:
------------------------
Your Signature:
--------------------------
(Sign exactly as your name appears on
the face of this Note)
Tax Identification No.: _________________
Signature Guarantee*:
-------------------------
* Participant in a recognized Signature Guarantee Medallion Program (or other
signature guarantor acceptable to the Trustee).
A-2-8
SCHEDULE OF EXCHANGES OF REGULATION S TEMPORARY GLOBAL NOTE*
The following exchanges of a part of this Regulation S Temporary Global
Note for an interest in another Global Note, or of other Restricted Global Notes
for an interest in this Regulation S Temporary Global Note, have been made:
Principal Amount
Amount of de- Amount of in- [at maturity] of
crease in Principal crease in Principal this Global Note Signature of
Amount [at ma- Amount [at ma- following such authorized offi-
turity] of this turity] of this decrease (or in- cer of Trustee or
Date of Exchange Global Note Global Note crease) Note Custodian
---------------- ------------------- ------------------- ---------------- ----------------
* This schedule should be included only if the Note is issued in global form.
A-2-9
EXHIBIT B
FORM OF CERTIFICATE OF TRANSFER
TransMontaigne Inc.
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Esq.
[REGISTRAR ADDRESS BLOCK]
Re: 9 1/8% SENIOR SUBORDINATED NOTES DUE 2010
Reference is hereby made to the Indenture, dated as of May 30, 2003 (the
"INDENTURE"), between TransMontaigne Inc., as issuer (the "COMPANY"), the
Guarantors listed on the signature page therein and ▇▇▇▇▇ Fargo Bank Minnesota,
National Association, as trustee. Capitalized terms used but not defined herein
shall have the meanings given to them in the Indenture.
___________________, (the "TRANSFEROR") owns and proposes to transfer
the Note[s] or interest in such Note[s] specified in Annex A hereto, in the
principal amount of $___________ in such Note[s] or interests (the "TRANSFER"),
to ___________________________ (the "TRANSFEREE"), as further specified in Annex
A hereto. In connection with the Transfer, the Transferor hereby certifies that:
[CHECK ALL THAT APPLY]
(1) / / CHECK IF TRANSFEREE WILL TAKE DELIVERY OF A BENEFICIAL
INTEREST IN THE 144A GLOBAL NOTE OR A DEFINITIVE NOTE PURSUANT TO RULE 144A. The
Transfer is being effected pursuant to and in accordance with Rule 144A under
the United States Securities Act of 1933, as amended (the "SECURITIES ACT"),
and, accordingly, the Transferor hereby further certifies that the beneficial
interest or Definitive Note is being transferred to a Person that the Transferor
reasonably believed and believes is purchasing the beneficial interest or
Definitive Note for its own account, or for one or more accounts with respect to
which such Person exercises sole investment discretion, and such Person and each
such account is a "qualified institutional buyer" within the meaning of
Rule 144A in a transaction meeting the requirements of Rule 144A and such
Transfer is in compliance with any applicable blue sky securities laws of any
state of the United States. Upon consummation of the proposed Transfer in
accordance with the terms of the Indenture, the transferred beneficial interest
or Definitive Note will be subject to the restrictions on transfer enumerated in
the Private Placement Legend printed on the 144A Global Note and/or the
Definitive Note and in the Indenture and the Securities Act.
(2) / / CHECK IF TRANSFEREE WILL TAKE DELIVERY OF A BENEFICIAL
INTEREST IN THE TEMPORARY REGULATION S GLOBAL NOTE, THE REGULATION S GLOBAL NOTE
OR A DEFINITIVE NOTE PURSUANT TO REGULATION S. The Transfer is being effected
pursuant to and in accordance with Rule 903 or Rule 904
B-1
under the Securities Act and, accordingly, the Transferor hereby further
certifies that (i) the Transfer is not being made to a person in the United
States and (x) at the time the buy order was originated, the Transferee was
outside the United States or such Transferor and any Person acting on its behalf
reasonably believed and believes that the Transferee was outside the United
States or (y) the transaction was executed in, on or through the facilities of a
designated offshore securities market and neither such Transferor nor any Person
acting on its behalf knows that the transaction was prearranged with a buyer in
the United States, (ii) no directed selling efforts have been made in
contravention of the requirements of Rule 903(b) or Rule 904(b) of Regulation S
under the Securities Act, (iii) the transaction is not part of a plan or scheme
to evade the registration requirements of the Securities Act and (iv) if the
proposed transfer is being made prior to the expiration of the Restricted
Period, the transfer is not being made to a U.S. Person or for the account or
benefit of a U.S. Person (other than an Initial Purchaser). Upon consummation of
the proposed transfer in accordance with the terms of the Indenture, the
transferred beneficial interest or Definitive Note will be subject to the
restrictions on Transfer enumerated in the Private Placement Legend printed on
the Regulation S Global Note, the Temporary Regulation S Global Note and/or the
Definitive Note and in the Indenture and the Securities Act.
(3) / / CHECK AND COMPLETE IF TRANSFEREE WILL TAKE DELIVERY OF A
BENEFICIAL INTEREST IN THE IAI GLOBAL NOTE OR A DEFINITIVE NOTE PURSUANT TO ANY
PROVISION OF THE SECURITIES ACT OTHER THAN RULE 144A OR REGULATION S. The
Transfer is being effected in compliance with the transfer restrictions
applicable to beneficial interests in Restricted Global Notes and Restricted
Definitive Notes and pursuant to and in accordance with the Securities Act and
any applicable blue sky securities laws of any state of the United States, and
accordingly the Transferor hereby further certifies that (check one):
(a) / / such Transfer is being effected pursuant to and in
accordance with Rule 144 under the Securities Act;
or
(b) / / such Transfer is being effected to the Company or a
subsidiary thereof;
or
(c) / / such Transfer is being effected pursuant to an effective
registration statement under the Securities Act and in compliance with the
prospectus delivery requirements of the Securities Act;
or
(d) / / such Transfer is being effected to an Institutional
Accredited Investor and pursuant to an exemption from the registration
requirements of the Securities Act other than Rule 144A, Rule 144 or Rule 904,
and the Transferor hereby further certifies that it has not engaged in any
general solicitation within the meaning of Regulation D under the Securities Act
and the Transfer complies with the transfer restrictions applicable to
beneficial interests in a Restricted Global Note or Restricted Definitive Notes
and the requirements of the exemption claimed, which certification is supported
by (1) a certificate executed by the Transferee in the form of Exhibit D to the
Indenture and (2) an opinion of counsel provided by the Transferor or the
Transferee (a copy of which the Transferor has attached to this certification),
to the effect that such Transfer is in compliance with the Securities Act. Upon
consummation of the proposed transfer in accordance with the terms of the
Indenture, the transferred beneficial interest or Definitive Note will be
subject to the restrictions on transfer enumerated in the Private Placement
Legend printed on the IAI Global Note and/or the Definitive Notes and in the
Indenture and the Securities Act.
B-2
(4) / / CHECK AND COMPLETE IF TRANSFEREE WILL TAKE DELIVERY OF A
BENEFICIAL INTEREST IN AN UNRESTRICTED GLOBAL NOTE OR OF AN UNRESTRICTED
DEFINITIVE NOTE.
(a) / / CHECK IF TRANSFER IS PURSUANT TO RULE 144. (i) The
Transfer is being effected pursuant to and in accordance with Rule 144 under the
Securities Act and in compliance with the transfer restrictions contained in the
Indenture and any applicable blue sky securities laws of any state of the United
States and (ii) the restrictions on transfer contained in the Indenture and the
Private Placement Legend are not required in order to maintain compliance with
the Securities Act. Upon consummation of the proposed Transfer in accordance
with the terms of the Indenture, the transferred beneficial interest or
Definitive Note will no longer be subject to the restrictions on transfer
enumerated in the Private Placement Legend printed on the Restricted Global
Notes, on Restricted Definitive Notes and in the Indenture.
(b) / / CHECK IF TRANSFER IS PURSUANT TO REGULATION S. (i) The
Transfer is being effected pursuant to and in accordance with Rule 903 or
Rule 904 under the Securities Act and in compliance with the transfer
restrictions contained in the Indenture and any applicable blue sky securities
laws of any state of the United States and (ii) the restrictions on transfer
contained in the Indenture and the Private Placement Legend are not required in
order to maintain compliance with the Securities Act. Upon consummation of the
proposed Transfer in accordance with the terms of the Indenture, the transferred
beneficial interest or Definitive Note will no longer be subject to the
restrictions on transfer enumerated in the Private Placement Legend printed on
the Restricted Global Notes, on Restricted Definitive Notes and in the
Indenture.
(c) / / CHECK IF TRANSFER IS PURSUANT TO OTHER EXEMPTION. (i)
The Transfer is being effected pursuant to and in compliance with an exemption
from the registration requirements of the Securities Act other than Rule 144,
Rule 903 or Rule 904 and in compliance with the transfer restrictions contained
in the Indenture and any applicable blue sky securities laws of any State of the
United States and (ii) the restrictions on transfer contained in the Indenture
and the Private Placement Legend are not required in order to maintain
compliance with the Securities Act. Upon consummation of the proposed Transfer
in accordance with the terms of the Indenture, the transferred beneficial
interest or Definitive Note will not be subject to the restrictions on transfer
enumerated in the Private Placement Legend printed on the Restricted Global
Notes or Restricted Definitive Notes and in the Indenture.
This certificate and the statements contained herein are made for your
benefit and the benefit of the Company.
-----------------------------------------
[Insert Name of Transferor]
By:
-------------------------------------
Name:
Title:
Dated:
-----------------------
B-3
ANNEX A TO CERTIFICATE OF TRANSFER
The Transferor owns and proposes to transfer the following:
[CHECK ONE OF (a) OR (b)]
(a) / / a beneficial interest in the:
(i) / / 144A Global Note (CUSIP ___________), or
(ii) / / Regulation S Global Note (CUSIP ___________), or
(iii) / / IAI Global Note (CUSIP ___________); or
(b) / / a Restricted Definitive Note.
After the Transfer the Transferee will hold:
[CHECK ONE]
(a) / / a beneficial interest in the:
(i) / / 144A Global Note (CUSIP ___________), or
(ii) / / Regulation S Global Note (CUSIP ___________), or
(iii) / / IAI Global Note (CUSIP ___________); or
(iv) / / Unrestricted Global Note (CUSIP ___________); or
(b) / / a Restricted Definitive Note; or
(c) / / an Unrestricted Definitive Note,
in accordance with the terms of the Indenture.
B-4
EXHIBIT C
FORM OF CERTIFICATE OF EXCHANGE
TransMontaigne Inc.
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Esq.
[REGISTRAR ADDRESS BLOCK]
Re: 9 1/8% SENIOR SUBORDINATED NOTES DUE 2010
(CUSIP _____________)
Reference is hereby made to the Indenture, dated as of May 30, 2003 (the
"INDENTURE"), between TransMontaigne Inc., as issuer (the "COMPANY"), the
Guarantors listed on the signature page therein and ▇▇▇▇▇ Fargo Bank Minnesota,
National Association, as trustee. Capitalized terms used but not defined herein
shall have the meanings given to them in the Indenture.
__________________________, (the "OWNER") owns and proposes to exchange
the Note[s] or interest in such Note[s] specified herein, in the principal
amount of $____________ in such Note[s] or interests (the "EXCHANGE"). In
connection with the Exchange, the Owner hereby certifies that:
(1) EXCHANGE OF RESTRICTED DEFINITIVE NOTES OR BENEFICIAL INTERESTS
IN A RESTRICTED GLOBAL NOTE FOR UNRESTRICTED DEFINITIVE NOTES OR BENEFICIAL
INTERESTS IN AN UNRESTRICTED GLOBAL NOTE.
(a) / / CHECK IF EXCHANGE IS FROM BENEFICIAL INTEREST IN A
RESTRICTED GLOBAL NOTE TO BENEFICIAL INTEREST IN AN UNRESTRICTED GLOBAL NOTE. In
connection with the Exchange of the Owner's beneficial interest in a Restricted
Global Note for a beneficial interest in an Unrestricted Global Note in an equal
principal amount, the Owner hereby certifies (i) the beneficial interest is
being acquired for the Owner's own account without transfer, (ii) such Exchange
has been effected in compliance with the transfer restrictions applicable to the
Global Notes and pursuant to and in accordance with the United States Securities
Act of 1933, as amended (the "SECURITIES ACT"), (iii) the restrictions on
transfer contained in the Indenture and the Private Placement Legend are not
required in order to maintain compliance with the Securities Act and (iv) the
beneficial interest in an Unrestricted Global Note is being acquired in
compliance with any applicable blue sky securities laws of any state of the
United States.
(b) / / CHECK IF EXCHANGE IS FROM BENEFICIAL INTEREST IN A
RESTRICTED GLOBAL NOTE TO UNRESTRICTED DEFINITIVE NOTE. In connection with the
Exchange of the Owner's beneficial interest in a Restricted Global Note for an
Unrestricted Definitive Note in an equal principal amount, the Owner hereby
certifies (i) the Definitive Note is being acquired for the Owner's own account
without transfer, (ii) such Exchange has been effected in compliance with the
transfer restrictions applicable to the Re-
C-1
stricted Global Notes and pursuant to and in accordance with the Securities Act,
(iii) the restrictions on transfer contained in the Indenture and the Private
Placement Legend are not required in order to maintain compliance with the
Securities Act and (iv) the Definitive Note is being acquired in compliance with
any applicable blue sky securities laws of any state of the United States.
(c) / / CHECK IF EXCHANGE IS FROM RESTRICTED DEFINITIVE NOTE TO
BENEFICIAL INTEREST IN AN UNRESTRICTED GLOBAL NOTE. In connection with the
Owner's Exchange of a Restricted Definitive Note for a beneficial interest in an
Unrestricted Global Note in an equal principal amount, the Owner hereby
certifies (i) the beneficial interest is being acquired for the Owner's own
account without transfer, (ii) such Exchange has been effected in compliance
with the transfer restrictions applicable to Restricted Definitive Notes and
pursuant to and in accordance with the Securities Act, (iii) the restrictions on
transfer contained in the Indenture and the Private Placement Legend are not
required in order to maintain compliance with the Securities Act and (iv) the
beneficial interest is being acquired in compliance with any applicable blue sky
securities laws of any state of the United States.
(d) / / CHECK IF EXCHANGE IS FROM RESTRICTED DEFINITIVE NOTE TO
UNRESTRICTED DEFINITIVE NOTE. In connection with the Owner's Exchange of a
Restricted Definitive Note for an Unrestricted Definitive Note in an equal
principal amount, the Owner hereby certifies (i) the Unrestricted Definitive
Note is being acquired for the Owner's own account without transfer, (ii) such
Exchange has been effected in compliance with the transfer restrictions
applicable to Restricted Definitive Notes and pursuant to and in accordance with
the Securities Act, (iii) the restrictions on transfer contained in the
Indenture and the Private Placement Legend are not required in order to maintain
compliance with the Securities Act and (iv) the Unrestricted Definitive Note is
being acquired in compliance with any applicable blue sky securities laws of any
state of the United States.
(2) EXCHANGE OF RESTRICTED DEFINITIVE NOTES OR BENEFICIAL INTERESTS
IN RESTRICTED GLOBAL NOTES FOR RESTRICTED DEFINITIVE NOTES OR BENEFICIAL
INTERESTS IN RESTRICTED GLOBAL NOTES.
(a) / / CHECK IF EXCHANGE IS FROM BENEFICIAL INTEREST IN A
RESTRICTED GLOBAL NOTE TO RESTRICTED DEFINITIVE NOTE. In connection with the
Exchange of the Owner's beneficial interest in a Restricted Global Note for a
Restricted Definitive Note in an equal principal amount, the Owner hereby
certifies that the Restricted Definitive Note is being acquired for the Owner's
own account without transfer. Upon consummation of the proposed Exchange in
accordance with the terms of the Indenture, the Restricted Definitive Note
issued will continue to be subject to the restrictions on transfer enumerated in
the Private Placement Legend printed on the Restricted Definitive Note and in
the Indenture and the Securities Act.
(b) CHECK IF EXCHANGE IS FROM RESTRICTED DEFINITIVE NOTE TO
BENEFICIAL INTEREST IN A RESTRICTED GLOBAL NOTE. In connection with the Exchange
of the Owner's Restricted Definitive Note for a beneficial interest in the
[CHECK ONE] / / 144A Global Note, / / Regulation S Global Note, / / IAI Global
Note in an equal principal amount, the Owner hereby certifies (i) the beneficial
interest is being acquired for the Owner's own account without transfer and (ii)
such Exchange has been effected in compliance with the transfer restrictions
applicable to the Restricted Global Notes and pursuant to and in accordance with
the Securities Act, and in compliance with any applicable blue sky securities
laws of any state of the United States. Upon consummation of the proposed
Exchange in accordance with the terms of the Indenture, the beneficial interest
issued will be subject to the restrictions on transfer enumerated in
C-2
the Private Placement Legend printed on the relevant Restricted Global Note and
in the Indenture and the Securities Act.
C-3
This certificate and the statements contained herein are made for your
benefit and the benefit of the Company.
-----------------------------------------
[Insert Name of Transferor]
By:
-------------------------------------
Name:
Title:
Dated:
-----------------------
C-4
EXHIBIT D
FORM OF CERTIFICATE FROM
ACQUIRING INSTITUTIONAL ACCREDITED INVESTOR
TransMontaigne Inc.
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Esq.
[REGISTRAR ADDRESS BLOCK]
Re: 9 1/8% SENIOR SUBORDINATED NOTES DUE 2010
(CUSIP ____________)
Reference is hereby made to the Indenture, dated as of May 30, 2003 (the
"INDENTURE"), between TransMontaigne Inc., as issuer (the "COMPANY"), the
Guarantors listed on the signature page therein and ▇▇▇▇▇ Fargo Bank Minnesota,
National Association, as trustee. Capitalized terms used but not defined herein
shall have the meanings given to them in the Indenture.
In connection with our proposed purchase of $____________ aggregate
principal amount of:
(a) / / a beneficial interest in a Global Note, or
(b) / / a Definitive Note,
we confirm that:
We understand that any subsequent transfer of the Notes or any interest
therein is subject to certain restrictions and conditions set forth in the
Indenture and the undersigned agrees to be bound by, and not to resell, pledge
or otherwise transfer the Notes or any interest therein except in compliance
with, such restrictions and conditions and the United States Securities Act of
1933, as amended (the "SECURITIES ACT").
We understand that the offer and sale of the Notes have not been
registered under the Securities Act, and that the Notes and any interest therein
may not be offered or sold except as permitted in the following sentence. We
agree, on our own behalf and on behalf of any accounts for which we are acting
as hereinafter stated, that if we should sell the Notes or any interest therein,
we will do so only (A) to the Company or any subsidiary thereof, (B) in
accordance with Rule 144A under the Securities Act to a "qualified institutional
buyer" (as defined therein), (C) to an institutional "accredited investor" (as
defined below) that, prior to such transfer, furnishes (or has furnished on its
behalf by a U.S. broker-dealer) to you and to the Company a signed letter
substantially in the form of this letter and an opinion of counsel in form
reasonably acceptable to the Company to the effect that such transfer is in
compliance with the Se-
D-1
curities Act, (D) outside the United States in accordance with Rule 904 of
Regulation S under the Securities Act, (E) pursuant to the provisions of
Rule 144(k) under the Securities Act or (F) pursuant to an effective
registration statement under the Securities Act, and we further agree to provide
to any person purchasing the Definitive Note or beneficial interest in a Global
Note from us in a transaction meeting the requirements of clauses (A) through
(E) of this paragraph a notice advising such purchaser that resales thereof are
restricted as stated herein.
We understand that, on any proposed resale of the Notes or beneficial
interest therein, we will be required to furnish to you and the Company such
certifications, legal opinions and other information as you and the Company may
reasonably require to confirm that the proposed sale complies with the foregoing
restrictions. We further understand that the Notes purchased by us will bear a
legend to the foregoing effect.
We are an institutional "accredited investor" (as defined in
Rule 501(a)(1), (2), (3) or (7) of Regulation D under the Securities Act) and
have such knowledge and experience in financial and business matters as to be
capable of evaluating the merits and risks of our investment in the Notes, and
we and any accounts for which we are acting are each able to bear the economic
risk of our or its investment.
We are acquiring the Notes or beneficial interest therein purchased by
us for our own account or for one or more accounts (each of which is an
institutional "accredited investor") as to each of which we exercise sole
investment discretion.
You and the Company are entitled to rely upon this letter and are
irrevocably authorized to produce this letter or a copy hereof to any interested
party in any administrative or legal proceedings or official inquiry with
respect to the matters covered hereby.
-----------------------------------------
[Insert Name of Transferor]
By:
-------------------------------------
Name:
Title:
Dated:
-----------------------
D-2
EXHIBIT E
FORM OF NOTATION OF GUARANTEE
For value received, each Guarantor (which term includes any successor
Person under the Indenture) has, jointly and severally, fully and
unconditionally guaranteed, to the extent set forth in the Indenture (defined
below) and subject to the provisions in the Indenture dated as of May 30, 2003
(the "INDENTURE") among TransMontaigne Inc., the Guarantors listed on the
signature pages thereto and ▇▇▇▇▇ Fargo Bank Minnesota, National Association, as
trustee (the "TRUSTEE"), (a) the due and punctual payment of the principal of,
premium and Additional Interest, if any, and interest on the Notes (as defined
in the Indenture), whether at maturity, by acceleration, redemption or
otherwise, the due and punctual payment of interest on overdue principal and
premium, and, to the extent permitted by law, interest, and the due and punctual
performance of all other obligations of the Company to the Holders or the
Trustee all in accordance with the terms of the Indenture and (b) in case of any
extension of time of payment or renewal of any Notes or any of such other
obligations, that the same will be promptly paid in full when due or performed
in accordance with the terms of the extension or renewal, whether at stated
maturity, by acceleration or otherwise. The obligations of the Guarantors to the
Holders of Notes and to the Trustee pursuant to the Note Guarantee and the
Indenture are expressly set forth in Article 11 of the Indenture and reference
is hereby made to the Indenture for the precise terms of the Note Guarantee.
Each Holder of a Note, by accepting the same, (a) agrees to and shall be bound
by such provisions, (b) authorizes and directs the Trustee, on behalf of such
Holder, to take such action as may be necessary or appropriate to effectuate the
subordination as provided in the Indenture and (c) appoints the Trustee
attorney-in-fact of such Holder for such purpose; PROVIDED, HOWEVER, that the
Indebtedness evidenced by this Note Guarantee shall cease to be so subordinated
and subject in right of payment upon any defeasance of this Note in accordance
with the provisions of the Indenture.
E-1
TRANSMONTAIGNE PRODUCT SERVICES INC.
BY:
------------------------------
NAME:
TITLE:
TRANSMONTAIGNE TRANSPORT INC.
BY:
------------------------------
NAME:
TITLE:
COASTAL FUELS MARKETING, INC.
BY:
------------------------------
NAME:
TITLE:
COASTAL TUG AND BARGE, INC.
BY:
------------------------------
NAME:
TITLE:
E-2
EXHIBIT F
FORM OF SUPPLEMENTAL INDENTURE
TO BE DELIVERED BY SUBSEQUENT GUARANTORS
SUPPLEMENTAL INDENTURE (this "SUPPLEMENTAL INDENTURE"), dated as of
________________, among __________________ (the "GUARANTEEING SUBSIDIARY"), a
subsidiary of ____________________ (or its permitted successor), a [Delaware]
corporation (the "COMPANY"), the Company, the other Guarantors (as defined in
the Indenture referred to herein) and ▇▇▇▇▇ Fargo Bank Minnesota, National
Association, as trustee under the indenture referred to below (the "TRUSTEE").
W I T N E S S E T H:
WHEREAS, the Company has heretofore executed and delivered to the
Trustee an indenture (the "INDENTURE"), dated as of May 30, 2003 providing for
the issuance of an aggregate principal amount of up to $200,000,000 of 9 1/8%
Senior Subordinated Notes due 2010 (the "NOTES");
WHEREAS, the Indenture provides that under certain circumstances the
Guaranteeing Subsidiary shall execute and deliver to the Trustee a supplemental
indenture pursuant to which the Guaranteeing Subsidiary shall unconditionally
guarantee all of the Company's Obligations under the Notes and the Indenture on
the terms and conditions set forth herein (the "NOTE GUARANTEE"); and
WHEREAS, pursuant to Section 9.01 of the Indenture, the Trustee is
authorized to execute and deliver this Supplemental Indenture.
NOW THEREFORE, in consideration of the foregoing and for other good and
valuable consideration, the receipt of which is hereby acknowledged, the
Guaranteeing Subsidiary and the Trustee mutually covenant and agree for the
equal and ratable benefit of the Holders of the Notes as follows:
CAPITALIZED TERMS. Capitalized terms used herein without definition
shall have the meanings assigned to them in the Indenture.
AGREEMENT TO GUARANTEE. The Guaranteeing Subsidiary hereby agrees as
follows:
(a) Along with all Guarantors named in the Indenture, to jointly and
severally Guarantee to each Holder of a Note authenticated and delivered by the
Trustee and to the Trustee and its successors and assigns, the Notes or the
obligations of the Company hereunder or thereunder, that:
(i) the principal of and interest on the Notes will
be promptly paid in full when due, whether at maturity, by
acceleration, redemption or otherwise, and interest on the
overdue principal of and interest on the Notes, if any, if
lawful, and all other obligations of the Company to the Holders
or the Trustee hereunder or thereunder will be promptly paid in
full or performed, all in accordance with the terms hereof and
thereof; and
F-1
(ii) in case of any extension of time of payment or
renewal of any Notes or any of such other obligations, that same
will be promptly paid in full when due or performed in
accordance with the terms of the extension or renewal, whether
at stated maturity, by acceleration or otherwise. Failing
payment when due of any amount so guaranteed or any performance
so guaranteed for whatever reason, the Guarantors shall be
jointly and severally obligated to pay the same immediately.
(b) The obligations hereunder shall be full and unconditional,
irrespective of the validity or enforceability of the Notes or the Indenture,
the absence of any action to enforce the same, any waiver or consent by any
Holder of the Notes with respect to any provisions hereof or thereof, the
recovery of any judgment against the Company, any action to enforce the same or
any other circumstance which might otherwise constitute a legal or equitable
discharge or defense of a guarantor.
(c) The following is hereby waived: diligence, presentment, demand
of payment, filing of claims with a court in the event of insolvency or
bankruptcy of the Company, any right to require a proceeding first against the
Company, protest, notice and all demands whatsoever.
(d) This Note Guarantee shall not be discharged except by complete
performance of the obligations contained in the Notes and the Indenture, and the
Guaranteeing Subsidiary accepts all obligations of a Guarantor under the
Indenture.
(e) If any Holder or the Trustee is required by any court or
otherwise to return to the Company, the Guarantors, or any Custodian, Trustee,
liquidator or other similar official acting in relation to either the Company or
the Guarantors, any amount paid by either to the Trustee or such Holder, this
Note Guarantee, to the extent theretofore discharged, shall be reinstated in
full force and effect.
(f) The Guaranteeing Subsidiary shall not be entitled to any right
of subrogation in relation to the Holders in respect of any obligations
guaranteed hereby until payment in full of all obligations guaranteed hereby.
(g) As between the Guarantors, on the one hand, and the Holders and
the Trustee, on the other hand, (x) the maturity of the obligations guaranteed
hereby may be accelerated as provided in Article 6 of the Indenture for the
purposes of this Note Guarantee, notwithstanding any stay, injunction or other
prohibition preventing such acceleration in respect of the obligations
guaranteed hereby, and (y) in the event of any declaration of acceleration of
such obligations as provided in Article 6 of the Indenture, such obligations
(whether or not due and payable) shall forthwith become due and payable by the
Guarantors for the purpose of this Note Guarantee.
(h) The Guarantors shall have the right to seek contribution from
any non-paying Guarantor so long as the exercise of such right does not impair
the rights of the Holders under the Guarantee.
(i) Pursuant to Section 11.02 of the Indenture, after giving effect
to any maximum amount and any other contingent and fixed liabilities that are
relevant under any applicable Bankruptcy or fraudulent conveyance laws, and
after giving effect to any collections from, rights to receive contribution from
or payments made by or on behalf of any other Guarantor in respect of the
obligations of such other Guarantor under Article 11 of the Indenture, this new
Note Guarantee shall be limited to the maximum
F-2
amount permissible such that the obligations of such Guarantor under this Note
Guarantee will not constitute a fraudulent transfer or conveyance.
EXECUTION AND DELIVERY. Each Guaranteeing Subsidiary agrees that the
Note Guarantees shall remain in full force and effect notwithstanding any
failure to endorse on each Note a notation of such Note Guarantee.
GUARANTEEING SUBSIDIARY MAY CONSOLIDATE, ETC. ON CERTAIN TERMS.
(j) The Guaranteeing Subsidiary may not consolidate with or merge
with or into (whether or not such Guarantor is the surviving Person) another
corporation, Person or entity whether or not affiliated with such Guarantor
unless:
(i) subject to Sections 11.04 and 11.05 of the
Indenture, the Person formed by or surviving any such
consolidation or merger (if other than a Guarantor or the
Company) unconditionally assumes all the obligations of such
Guarantor, pursuant to a supplemental indenture in form and
substance reasonably satisfactory to the Trustee, under the
Notes, the Indenture and the Note Guarantee on the terms set
forth herein or therein; and
(ii) immediately after giving effect to such
transaction, no Default or Event of Default exists.
(k) In case of any such consolidation, merger, sale or conveyance
and upon the assumption by the successor corporation, by supplemental indenture,
executed and delivered to the Trustee and satisfactory in form to the Trustee,
of the Note Guarantee endorsed upon the Notes and the due and punctual
performance of all of the covenants and conditions of the Indenture to be
performed by the Guarantor, such successor corporation shall succeed to and be
substituted for the Guarantor with the same effect as if it had been named
herein as a Guarantor. Such successor corporation thereupon may cause to be
signed any or all of the Note Guarantees to be endorsed upon all of the Notes
issuable hereunder which theretofore shall not have been signed by the Company
and delivered to the Trustee. All the Note Guarantees so issued shall in all
respects have the same legal rank and benefit under the Indenture as the Note
Guarantees theretofore and thereafter issued in accordance with the terms of the
Indenture as though all of such Note Guarantees had been issued at the date of
the execution hereof.
(l) Except as set forth in Articles 4 and 5 and Section 11.05 of
Article 11 of the Indenture, and notwithstanding clauses (a) and (b) above,
nothing contained in the Indenture or in any of the Notes shall prevent any
consolidation or merger of a Guarantor with or into the Company or another
Guarantor, or shall prevent any sale or conveyance of the property of a
Guarantor as an entirety or substantially as an entirety to the Company or
another Guarantor.
RELEASES.
(m) In the event of a sale or other disposition of all of the assets
of any Guarantor, by way of merger, consolidation or otherwise, or a sale or
other disposition of all to the capital stock of any Guarantor, in each case to
a Person that is not (either before or after giving effect to such transaction)
a Re-
F-3
stricted Subsidiary of the Company, then such Guarantor (in the event of a sale
or other disposition, by way of merger, consolidation or otherwise, of all of
the capital stock of such Guarantor) or the corporation acquiring the property
(in the event of a sale or other disposition of all or substantially all of the
assets of such Guarantor) will be released and relieved of any obligations under
its Note Guarantee; PROVIDED that the net proceeds of such sale or other
disposition are applied in accordance with the applicable provisions of the
Indenture, including without limitation Section 4.10 of the Indenture. Upon
delivery by the Company to the Trustee of an Officers' Certificate and an
Opinion of counsel to the effect that such sale or other disposition was made by
the Company in accordance with the provisions of the Indenture, including
without limitation Section 4.10 of the Indenture, the Trustee shall execute any
documents reasonably required in order to evidence the release of any Guarantor
from its obligations under its Note Guarantee.
(n) Any Guarantor not released from its obligations under its Note
Guarantee shall remain liable for the full amount of principal of and interest
on the Notes and for the other obligations of any Guarantor under the Indenture
as provided in Article 11 of the Indenture.
NO RECOURSE AGAINST OTHERS. No past, present or future director,
officer, employee, incorporator, stockholder or agent of the Guaranteeing
Subsidiary, as such, shall have any liability for any obligations of the Company
or any Guaranteeing Subsidiary under the Notes, any Note Guarantees, the
Indenture or this Supplemental Indenture or for any claim based on, in respect
of, or by reason of, such obligations or their creation. Each Holder of the
Notes by accepting a Note waives and releases all such liability. The waiver and
release are part of the consideration for issuance of the Notes and the
Guarantees. Such waiver may not be effective to waive liabilities under the
federal securities laws and it is the view of the Securities and Exchange
Commission that such a waiver is against public policy.
NEW YORK LAW TO GOVERN. THIS SUPPLEMENTAL INDENTURE WILL BE GOVERNED BY
AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
COUNTERPARTS The parties may sign any number of copies of this
Supplemental Indenture. Each signed copy shall be an original, but all of them
together represent the same agreement.
EFFECT OF HEADINGS. The Section headings herein are for convenience only
and shall not affect the construction hereof.
THE TRUSTEE. The Trustee shall not be responsible in any manner
whatsoever for or in respect of the validity or sufficiency of this Supplemental
Indenture or for or in respect of the recitals contained herein, all of which
recitals are made solely by the Guaranteeing Subsidiary and the Company.
IN WITNESS WHEREOF, the parties hereto have caused this Supplemental
Indenture to be duly executed and attested, all as of the date first above
written.
Dated: ________________, ____
F-4
[GUARANTEEING SUBSIDIARY]
BY:
-------------------------------------
NAME:
TITLE:
TRANSMONTAIGNE PRODUCT SERVICES INC.
BY:
-------------------------------------
NAME:
TITLE:
TRANSMONTAIGNE TRANSPORT INC.
BY:
-------------------------------------
NAME:
TITLE:
COASTAL FUELS MARKETING, INC.
BY:
-------------------------------------
NAME:
TITLE:
COASTAL TUG AND BARGE, INC.
BY:
-------------------------------------
NAME:
TITLE:
F-5
SCHEDULE I
SCHEDULE OF GUARANTORS
The following schedule lists each Guarantor under the Indenture as of
the Issue Date:
TransMontaigne Product Services Inc.
TransMontaigne Transport Inc.
Coastal Fuels Marketing, Inc.
Coastal Tug and Barge, Inc.