EXHIBIT T3C
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EOTT ENERGY LLC,
EOTT ENERGY FINANCE CORP.,
THE CURRENT AND FUTURE SUBSIDIARY GUARANTORS
and
THE BANK OF NEW YORK
As Trustee
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INDENTURE
Dated as of _______________, 2003
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$104,000,000
9% Senior Notes due 2010
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TABLE OF CONTENTS
ARTICLE I. DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION................................................2
Section 1.1 Certain Terms Defined...........................................................................2
Section 1.2 Other Definitions..............................................................................30
Section 1.3 Incorporation by Reference of Trust Indenture Act..............................................30
Section 1.4 Rules of Construction..........................................................................31
ARTICLE II. THE NOTES............................................................................................31
Section 2.1 Forms Generally................................................................................31
Section 2.2 Title and Terms................................................................................32
Section 2.3 Denominations..................................................................................33
Section 2.4 Execution of Notes.............................................................................33
Section 2.5 Registration of Transfer and Exchange..........................................................34
Section 2.6 Temporary Notes................................................................................36
Section 2.7 Mutilated, Destroyed, Lost or Stolen Notes.....................................................36
Section 2.8 Cancellation of Surrendered Notes..............................................................37
Section 2.9 Provisions of the Indenture and Notes for the Sole Benefit of the Parties and the Holders......37
Section 2.10 Payment of Interest; Rights Preserved..........................................................37
Section 2.11 Notes Payable in Dollars.......................................................................38
Section 2.12 Wire Transfers.................................................................................38
Section 2.13 Notes Issuable in the Form of Global Notes.....................................................38
Section 2.14 Defaulted Interest.............................................................................40
Section 2.15 Legend.........................................................................................41
ARTICLE III. REDEMPTION AND PREPAYMENT...........................................................................41
Section 3.1 Optional Redemption............................................................................41
Section 3.2 Mandatory Redemption...........................................................................41
Section 3.3 Offer to Purchase by Application of Excess Proceeds............................................41
ARTICLE IV. SUCCESSORS...........................................................................................43
Section 4.1 Merger, Consolidation, or Sale of Assets.......................................................43
Section 4.2 Successor Corporation Substituted..............................................................45
ARTICLE V. COVENANTS.............................................................................................46
Section 5.1 Payment of Principal of, and Premium, if any, and Interest on, the Notes.......................46
Section 5.2 Maintenance of Offices or Agencies for Registration of Transfer, Exchange and Payment
of the Notes...................................................................................46
Section 5.3 Appointment to Fill a Vacancy in the Office of Trustee.........................................47
Section 5.4 Duties of Paying Agents, etc...................................................................47
Section 5.5 Further Instruments and Acts...................................................................48
Section 5.6 Maintenance of Properties......................................................................48
Section 5.7 Payment of Taxes and Other Claims..............................................................48
Section 5.8 Corporate or Company Existence.................................................................48
Section 5.9 Compliance Certificate.........................................................................49
Section 5.10 Stay, Extension and Usury Laws.................................................................49
Section 5.11 Restricted Payments............................................................................50
Section 5.12 Incurrence of Indebtedness and Issuance of Disqualified Equity.................................52
Section 5.13 Sale and Lease-Back Transactions...............................................................54
Section 5.14 Asset Sales....................................................................................54
Section 5.15 Liens..........................................................................................56
Section 5.16 Dividend and Other Payment Restrictions Affecting Subsidiaries.................................56
Section 5.17 Limitation on the Sale or Issuance of Equity Interests of Restricted Subsidiaries..............57
Section 5.18 Transaction with Affiliates....................................................................58
Section 5.19 Offer to Repurchase Upon Change of Control.....................................................59
Section 5.20 Additional Subsidiary Guarantees...............................................................61
Section 5.21 Designation of Restricted and Unrestricted Subsidiaries........................................61
Section 5.22 Business Activities............................................................................62
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Section 5.23 Restrictions on Nature of Indebtedness and Activities of EOTT Finance..........................62
Section 5.24 Payments for Consent...........................................................................62
ARTICLE VI. HOLDERS' LISTS AND REPORTS BY THE ISSUERS AND THE TRUSTEE............................................62
Section 6.1 Issuers to Furnish Trustee Information as to Names and Addresses of Holders; Preservation of
Information....................................................................................62
Section 6.2 Communications to Holders......................................................................63
Section 6.3 Reports by Issuers.............................................................................63
Section 6.4 Reports by Trustee.............................................................................63
Section 6.5 Record Dates for Action by Holders.............................................................64
ARTICLE VII. DEFAULTS AND REMEDIES...............................................................................64
Section 7.1 Events of Default..............................................................................64
Section 7.2 Acceleration...................................................................................66
Section 7.3 Other Remedies.................................................................................66
Section 7.4 Waiver of Past Defaults........................................................................67
Section 7.5 Control by Majority............................................................................67
Section 7.6 Limitation on Suits............................................................................67
Section 7.7 Rights of Holders of Notes to Receive Payment..................................................68
Section 7.8 Collection Suit by Trustee.....................................................................68
Section 7.9 Trustee May File Proofs of Claim...............................................................68
Section 7.10 Priorities.....................................................................................69
Section 7.11 Undertaking for Costs..........................................................................69
ARTICLE VIII. CONCERNING THE TRUSTEE.............................................................................69
Section 8.1 Certain Duties and Responsibilities............................................................69
Section 8.2 Certain Rights of Trustee......................................................................71
Section 8.3 Trustee Not Liable for Recitals in
Indenture or in the Notes...................................72
Section 8.4 Trustee, Paying Agent or Registrar May Own Notes...............................................72
Section 8.5 Moneys Received by Trustee to Be Held in Trust.................................................72
Section 8.6 Compensation and Reimbursement.................................................................72
Section 8.7 Right of Trustee to Rely on an Officers' Certificate Where No Other Evidence Specifically
Prescribed.....................................................................................73
Section 8.8 Separate Trustee; Replacement of Trustee.......................................................73
Section 8.9 Successor Trustee by Merger....................................................................74
Section 8.10 Eligibility; Disqualification..................................................................75
Section 8.11 Preferential Collection of Claims Against Issuers..............................................75
Section 8.12 Compliance with Tax Laws.......................................................................75
ARTICLE IX. CONCERNING THE HOLDERS...............................................................................75
Section 9.1 Evidence of Action by Holders..................................................................75
Section 9.2 Proof of Execution of Instruments and of Holding of Notes......................................76
Section 9.3 Who May Be Deemed Owner of Notes...............................................................76
Section 9.4 Instruments Executed by Holders Bind Future Orders.............................................76
ARTICLE X. SUPPLEMENTAL
INDENTURES...............................................................................77
Section 10.1 Purposes for Which Supplemental
Indenture May Be Entered into Without Consent of Holders.......77
Section 10.2 Modification of
Indenture with Consent of Holders of Notes.....................................78
Section 10.3 Effect of Supplemental
Indentures..............................................................79
Section 10.4 Notes May Bear Notation of Changes by Supplemental
Indentures..................................80
ARTICLE XI. LEGAL DEFEASANCE AND COVENANT DEFEASANCE.............................................................80
Section 11.1 Option to Effect Legal Defeasance or Covenant Defeasance.......................................80
Section 11.2 Legal Defeasance and Discharge.................................................................80
Section 11.3 Covenant Defeasance............................................................................81
Section 11.4 Conditions to Legal or Covenant Defeasance.....................................................81
Section 11.5 Deposited Money and U.S. Government Obligations to be Held in Trust; Other Miscellaneous
Provisions.....................................................................................82
Section 11.6 Repayment to Issuers...........................................................................83
Section 11.7 Reinstatement..................................................................................83
ARTICLE XII. SUBSIDIARY GUARANTEES...............................................................................84
Section 12.1 Subsidiary Guarantees..........................................................................84
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Section 12.2 Limitation on Liability........................................................................85
Section 12.3 Successors and Assigns.........................................................................86
Section 12.4 No Waiver......................................................................................86
Section 12.5 Modification...................................................................................86
Section 12.6 Execution of Supplemental
Indenture for Future Subsidiary Guarantors...........................86
ARTICLE XIII. MISCELLANEOUS PROVISIONS...........................................................................87
Section 13.1 Successors and Assigns of Issuers Bound by Indenture...........................................87
Section 13.2 Acts of Board, Committee or Officer of Successor Company Valid.................................87
Section 13.3 Required Notices or Demands....................................................................87
Section 13.4 Indenture and Notes to Be Construed in Accordance with the Laws of the State of
New York.......88
Section 13.5 Officers' Certificate and Opinion of Counsel to Be Furnished upon Application or Demand by the
Issuers........................................................................................88
Section 13.6 Payments Due on Legal Holidays.................................................................88
Section 13.7 Provisions Required by Trust Indenture Act to Control..........................................88
Section 13.8 Computation of Interest on Notes...............................................................89
Section 13.9 Rules by Trustee, Paying Agent and Registrar...................................................89
Section 13.10 No Recourse Against Others.....................................................................89
Section 13.11 Severability...................................................................................89
Section 13.12 Effect of Headings.............................................................................89
Section 13.13 Indenture May Be Executed in Counterparts......................................................89
Exhibit A - Form of Notes
Exhibit B - Form of Legend for Global Notes
Exhibit C - Form of Legend for Transfer Restricted Note
Exhibit D - Transferee Certificate for Institutional Accredited Investors
Exhibit E - Form of Supplemental Indenture
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THIS INDENTURE dated as of March 1, 2003 (the "INDENTURE") among EOTT
Energy LLC, a Delaware limited liability company, (the "COMPANY"), and the
following direct or indirect wholly-owned subsidiaries of the Company:
EOTT
Energy Finance Corp., a Delaware corporation ("EOTT FINANCE" and, together with
the Company, the "ISSUERS"), EOTT Energy Partners, L.P., a Delaware limited
partnership ("EPLP"), EOTT Energy General Partner, L.L.C., a Delaware limited
liability company ("EOTT GP LLC"), EOTT Energy Operating Limited Partnership, a
Delaware limited partnership ("OLP"), EOTT Energy Pipeline Limited Partnership,
a Delaware limited partnership ("PLP"), EOTT Energy Canada Limited Partnership,
a Delaware limited partnership ("CLP"), EOTT Energy Liquids L.P., a Delaware
limited partnership ("ELP" and, together with EPLP, EOTT GP LLC, OLP, PLP, and
CLP, the "SUBSIDIARY GUARANTORS") and The Bank of
New York, a
New York banking
corporation, as trustee (the "TRUSTEE").
RECITALS OF THE ISSUERS
On October 8, 2002, EOTT Finance, EOTT GP LLC, EPLP, OLP, PLP, CLP and
ELP filed the Bankruptcy Case (as hereinafter defined) under chapter 11 of the
Bankruptcy Code (as hereinafter defined).
Pursuant to the Joint Chapter 11 Plan filed by EOTT Finance, EOTT GP
LLC, EPLP, OLP, PLP, CLP and ELP, ("PLAN OF REORGANIZATION") and confirmed in
connection with the Bankruptcy Case,
(a) the 11% Senior Notes due 2009 ("OLD NOTES") issued by EPLP
and EOTT Finance were cancelled, and
(b) each holder of a Class ▇▇, ▇▇, ▇▇, ▇▇, ▇▇, ▇▇, ▇▇ ▇▇
Allowed General Unsecured Claim (as defined in the Plan of
Reorganization), which includes former holders of Old Notes, or a Class
5.1H Allowed Indemnifiable General Unsecured Claim (as defined in the
Plan of Reorganization) ("ALLOWED CLASS 5 CLAIMS") is entitled to
receive, among other consideration, a pro rata share of the Notes
issued under this Indenture based on the aggregate amount of Allowed
Class 5 Claims.
The Issuers have duly authorized the creation of a series of Notes
denominated as their 9% Senior Notes due 2010 (the "NOTES"), of substantially
the tenor and principal amounts hereinafter set forth, and to provide therefore
the Issuers have duly authorized the execution and delivery of this Indenture.
Pursuant to the Plan of Reorganization, the Notes are to be originally
issued in an aggregate principal amount of $104,000,000 on the date hereof; and
up to an additional $10,660,000 in aggregate principal amount of PIK Notes may
be originally issued to pay accrued interest due and payable on the first two
Interest Payment Dates (as defined herein).
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The Company shall cause each of its Restricted Subsidiaries (as defined
herein) formed or acquired after the date hereof to execute and deliver a
supplement hereto pursuant to which such Restricted Subsidiary shall agree to be
bound by the terms of this Indenture, as if it were an original party hereto,
and to guarantee the Issuer's obligations under this Indenture and the Notes,
thereby becoming a Subsidiary Guarantor for purposes of this Indenture.
All things necessary have been done on the part of the Issuers to make
the Notes, when issued and executed by the Issuers and authenticated and
delivered by the Trustee as herein provided, the valid obligations of the
Issuers, in accordance with their respective terms.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration of the premises and pursuant to the Plan of
Reorganization, it is mutually covenanted and agreed, for the equal and
proportionate benefit of all Holders of the Notes, without preference of any
Notes over any other Notes as a result of any different dates of their original
issuance, as follows:
ARTICLE I.
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
SECTION 1.1 CERTAIN TERMS DEFINED. The terms defined in this Section
1.1 (except as otherwise expressly provided or unless the context otherwise
requires) for all purposes of this Indenture shall have the meanings specified
in this Section 1.1. All other terms used in this Indenture which are defined in
the Trust Indenture Act or which are by reference therein defined in the
Securities Act (except as herein otherwise expressly provided or unless the
context otherwise requires), shall have the meanings assigned to such terms in
the Trust Indenture Act and in the Securities Act as in force and effect on the
date hereof.
"ACQUIRED DEBT" means, with respect to any specified Person:
(1) Indebtedness of any other Person existing at the time such
other Person is merged with or into or became a Subsidiary of such
specified Person, whether or not such Indebtedness is incurred in
connection with, or in contemplation of, such other Person merging with
or into, or becoming a Subsidiary of, such specified Person, but
excluding Indebtedness which is extinguished, retired or repaid in
connection with such Person merging with or becoming a Subsidiary of
such specific Person; and
(2) Indebtedness secured by a Lien encumbering any asset
acquired by such specified Person.
"AFFILIATE" of any specified Person means any other Person directly or
indirectly controlling or controlled by or under direct or indirect common
control with such
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specified Person. For purposes of this definition, "control," as used with
respect to any Person, shall mean the possession, directly or indirectly, of the
power to direct or cause the direction of the management or policies of such
Person, whether through the ownership of voting securities, by agreement or
otherwise; provided that beneficial ownership of 10% or more of the Voting Stock
of a specified Person shall be deemed to be control by the other Person. For
purposes of this definition, the terms "controlling," "controlled by" and "under
common control with" shall have correlative meanings. Notwithstanding the
foregoing, the term "Affiliate" shall not include a Restricted Subsidiary of any
specified Person.
"ALLOWED CLASS 5 CLAIMS" has the meaning assigned to it in the
recitals.
"ASSET SALE" means:
(1) the sale, lease, conveyance or other disposition of any
assets or rights, other than sales of inventory in the ordinary course
of business consistent with past practices and sales of accounts
receivable to provide working capital or other financing for the
Company's business; provided that the sale, conveyance or other
disposition of all or substantially all of the assets of the Company or
the Company and its Restricted Subsidiaries taken as a whole shall be
governed by Section 5.19 hereof and/or Article IV hereof and not by
Section 5.14 hereof; and
(2) the issuance of Equity Interests by any Restricted
Subsidiary or the sale by the Company or any Restricted Subsidiary of
Equity Interests in any Restricted Subsidiary.
Notwithstanding the preceding, the following items shall not be deemed
to be Asset Sales:
(1) any single transaction or series of related transactions
that: (a) involves assets having a fair market value of less than $2.5
million; or (b) results in net proceeds to the Company and its
Restricted Subsidiaries of less than $2.5 million;
(2) a transfer of assets to the Company or to a Restricted
Subsidiary;
(3) an issuance of Equity Interests by a Restricted Subsidiary
to the Company or to a Restricted Subsidiary;
(4) a Restricted Payment that is permitted by the covenant
described above under Section 5.11 hereof;
(5) any sale, transfer, exchange or other disposition of
hydrocarbons in the ordinary course of the business conducted by the
Company or any Restricted Subsidiary;
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(6) sales of Hedging Obligations and other financial
instruments entered into in the ordinary course of the business of the
Company and its Restricted Subsidiaries; and
(7) any sale, transfer or other disposition of Cash
Equivalents.
"ATTRIBUTABLE DEBT" in respect of a Sale and Lease-Back Transaction
means, at the time of determination, the present value of the obligation of the
lessee for net rental payments during the remaining term of the lease included
in such Sale and Lease-Back Transaction including any period for which such
lease has been extended or may, at the option of the lessor, be extended. Such
present value shall be calculated using a discount rate equal to the rate of
interest implicit in such transaction, determined in accordance with GAAP.
"BANKRUPTCY CASE" means the bankruptcy cases filed by EOTT Finance,
EOTT GP LLC, EPLP, OLP, PLP, CLP and ELP under chapter 11 of the Bankruptcy Code
in the United States Bankruptcy Court for the Southern District of Texas, Corpus
Christi Division, which are jointly administered under bankruptcy case no.
02-21730.
"BANKRUPTCY CODE" means Title 11, U.S. Code, as amended.
"BANKRUPTCY LAW" means the Bankruptcy Code or any similar federal or
state law for the relief of debtors.
"BOARD OF DIRECTORS" means the Board of Directors as defined in the LLC
Agreement, as such board may be constituted from time to time, and any other
board of directors or governing body performing similar functions for a
successor to the Company hereunder.
"BOARD RESOLUTION" means a copy of a resolution certified by the
Secretary or an Assistant Secretary of the Company to have been duly adopted by
the Company's Board of Directors and to be in full force and effect on the date
of such certificate, and delivered to the Trustee, and with respect to a
Subsidiary, a copy of a resolution certified by the Secretary or an Assistant
Secretary of such Subsidiary to have been duly adopted by the Subsidiary's Board
of Directors and to be in full force and effect on the date of such certificate,
and delivered to the Trustee.
"BUSINESS DAY" means each Monday, Tuesday, Wednesday, Thursday and
Friday which is not a day on which banking institutions in the City of
New York,
New York are authorized or obligated by law or executive order to close.
"CAPITAL LEASE OBLIGATION" means, at the time any determination thereof
is to be made, the amount of the liability in respect of a capital lease that
would at that time be required to be capitalized on a balance sheet of the
lessee in accordance with GAAP.
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"CASH EQUIVALENT" means:
(1) United States dollars or, in an amount up to the amount
necessary or appropriate to fund local operating expenses, other
currencies;
(2) securities issued or directly and fully guaranteed or
insured by the United States government or any agency or
instrumentality thereof (provided that the full faith and credit of the
United States is pledged in support thereof) having maturities of not
more than one year from the date of acquisition;
(3) certificates of deposit, time deposits and Eurodollar
deposits with maturities of one year or less from the date of
acquisition, bankers' acceptances with maturities not exceeding 365
days, demand and overnight bank deposits and other similar types of
investments routinely offered by commercial banks, in each case, with
any domestic commercial bank having capital and surplus in excess of
$500.0 million and a ▇▇▇▇▇▇▇▇ Bank Watch Rating of "B" or better;
(4) repurchase obligations with a term of not more than seven
days for underlying securities of the types described in clauses (2)
and (3) above entered into with any financial institution meeting the
qualifications specified in clause (3) above;
(5) commercial paper having one of the two highest ratings
obtainable from ▇▇▇▇▇'▇ Investors Service, Inc. or Standard & Poor's
Ratings Group and in each case maturing within six months after the
date of acquisition; and
(6) money market funds at least 95% of the assets of which
constitute Cash Equivalents of the kinds described in clauses (1)
through (5) of this definition.
"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 Rule 13d-3 under the Exchange Act), directly or indirectly, of more than 50%
of the total Voting Stock of the Company; (2) the Company is merged with or into
or consolidated with another Person and, immediately after giving effect to the
merger or consolidation, less than 50% of the total voting power of the
outstanding Voting Stock of the surviving or resulting Person is then
"beneficially owned" (within the meaning of Rule 13d-3 under the Exchange Act)
in the aggregate by the unitholders of the Company immediately prior to such
merger or consolidation; (3) the Company, either individually or in conjunction
with one or more Restricted Subsidiaries, sells, assigns, conveys, transfers,
leases or otherwise disposes of, or the Restricted Subsidiaries sell, assign,
convey, transfer, lease or otherwise dispose of, all or substantially all of the
assets of the Company and the Restricted Subsidiaries, taken as a whole (either
in one transaction or a series of related transactions), including Equity
Interests in the Restricted Subsidiaries, to any Person (other than the Company
or a Wholly-Owned Restricted Subsidiary); (4) during any consecutive two-year
period, individuals who at the beginning of such period constituted the Board of
Directors of the
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Company (together with any new directors whose election by such Board of
Directors or whose nomination for election by the holders of Voting Stock of the
Company was approved by a vote of a majority of the directors 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 then in
office; or (5) the liquidation or dissolution of the Company.
"CLP" means EOTT Energy Canada Limited Partnership, a Delaware limited
partnership.
"CODE" shall mean the Internal Revenue Code of 1986, as amended, as now
or hereafter in effect, together with all regulations thereunder issued by the
Internal Revenue Service.
"COMMODITY HEDGING AGREEMENT" means, with respect to any Person, any
commodity price swap agreement, commodity price collar agreement, commodity
price exchange agreement, currency hedge related to hydrocarbon sales, option or
futures contract or other similar agreement or arrangement or hydrocarbon hedge
contract or forward sale contract, in each case designed to protect such Person
against fluctuations in commodity prices.
"COMMON UNITS" means the common units of membership interest in the
Company, as defined in the LLC Agreement.
"COMPANY" means the Person named as the "Company" in the first
paragraph of this Indenture, until a successor Person shall have become such
pursuant to the applicable provisions of this Indenture, and thereafter
"Company" shall mean such successor Person.
"COMPANY REQUEST" or "COMPANY ORDER" means a written request or order
signed in the name of the Company by its Chairman, its Chief Executive Officer,
its President or any Vice President, and its Treasurer, an Assistant Treasurer,
its Secretary or an Assistant Secretary, and delivered to the Trustee.
"CONSOLIDATED BORROWING BASE AMOUNT" means an amount equal to the
average of the sums, at the end of each of the Company's four most recent fiscal
quarters for which interim financial statements are available, of (1) 30% of the
book value (calculated on a first in, first out basis) of Eligible Accounts
Receivable of the Company and its Restricted Subsidiaries and (2) 30% of the
book value of the consolidated Inventory of the Company and its Restricted
Subsidiaries, in each case as determined in accordance with GAAP.
"CONSOLIDATED CASH FLOW" means, with respect to any Person for any
period, the Consolidated Net Income of such Person for such period plus:
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(1) any amount equal to any extraordinary loss of such Person
and its Restricted Subsidiaries plus any net loss realized by such
Person and its Restricted Subsidiaries in connection with an Asset
Sale, to the extent such losses were deducted in computing such
Consolidated Net Income; plus
(2) the provision for taxes based on income or profits of such
Person and its Restricted Subsidiaries for such period, to the extent
that such provision for taxes was deducted in computing such
Consolidated Net Income; plus
(3) the consolidated interest expense of such Person and its
Restricted Subsidiaries for such period, whether paid or accrued
(including, without limitation, amortization of debt issuance costs,
fees and original issue discount, non-cash interest payments, the
interest component of any deferred payment obligations, the interest
component of all payments associated with Capital Lease Obligations,
imputed interest with respect to Attributable Debt, commissions,
discounts, and other fees and charges Incurred in respect of letter of
credit or bankers' acceptance financings and net payments, if any,
pursuant to Currency Agreements and Interest Rate Agreements), to the
extent that any such expense was deducted in computing such
Consolidated Net Income; plus
(4) depreciation, depletion and amortization (including
amortization of goodwill and other intangibles but excluding
amortization of prepaid cash expenses that were paid in a prior period)
and other non-cash expenses (excluding any such non-cash expense to the
extent that it represents an accrual of or reserve for cash expenses in
any future period or amortization of a prepaid cash expense that was
paid in a prior period) of such Person and its Restricted Subsidiaries
for such period to the extent that such depreciation, depletion,
amortization and other non-cash expenses were deducted in computing
such Consolidated Net Income (excluding any such expenses to the extent
incurred by a Person that is not a Restricted Subsidiary); minus
(5) non-cash items (including non-cash gains resulting from
"marking to market" any Hedging Obligations) increasing such
Consolidated Net Income for such period, other than items that were
accrued in the ordinary course of business, in each case, on a
consolidated basis and determined in accordance with GAAP; plus
(6) any non-cash deductions resulting from "marking to market"
any Hedging Obligations.
"CONSOLIDATED DISTRIBUTABLE CASH FLOW" means with respect to any Person
for any period, the Consolidated Net Income of such Person for such period,
plus:
(1) depreciation, depletion and amortization (including
amortization of goodwill and other intangibles but excluding
amortization of prepaid cash expenses that were paid in a prior period)
and other non-cash expenses (excluding
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any such non-cash expense to the extent that it represents an accrual
of or reserve for cash expenses in any future period or amortization of
a prepaid cash expense that was paid in a prior period) of such Person
and its Restricted Subsidiaries for such period to the extent that such
depreciation, depletion, amortization and other non-cash expenses were
deducted in computing such Consolidated Net Income (excluding any such
expenses to the extent incurred by a Person that is not a Restricted
Subsidiary); plus
(2) deferred taxes of such Person and its Restricted
Subsidiaries, to the extent such deferred taxes were deducted in
calculated Consolidated Net Income; plus (or if negative minus)
(3) net changes in consolidated working capital of the Person
and its Restricted Subsidiaries during such period; plus (or if
negative minus)
(4) net changes in any consolidated reserves of the Person and
its Restricted Subsidiaries during such period; minus
(5) capital expenditures made by such Person and its
Restricted Subsidiaries during such period.
"CONSOLIDATED NET INCOME" means, with respect to any specified Person
for any period, the aggregate of the Net Income of such Person and its
Restricted Subsidiaries for such period, on a consolidated basis, determined in
accordance with GAAP; provided that:
(1) the aggregate Net Income (but not loss) of any Person that
is not a Restricted Subsidiary or that is accounted for by the equity
method of accounting shall be included only to the extent of the amount
of dividends or distributions paid in cash to the specified Person or a
Restricted Subsidiary;
(2) the aggregate Net Income (but not loss) of any Restricted
Subsidiary that is subject to restrictions, directly or indirectly, on
the payment of dividends or the making of distributions directly or
indirectly to such Person shall be included only to the extent of the
amount of dividends or distributions paid in cash to such Person with
respect to such period; and
(3) the cumulative effect of a change in accounting principles
shall be excluded.
"CORPORATE TRUST OFFICE" means the principal corporate trust office of
the Trustee at which at any particular time its corporate trust business shall
be administered, which office at the date of execution of this Indenture is
located at ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇.
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"CREDIT FACILITIES" means, with respect to the Issuers or any
Restricted Subsidiary, one or more debt or commercial paper facilities
(including (a) the Letter of Credit Agreement, dated as of February [ ], 2003,
among OLP, PLP, CLP and ELP, as borrowers, and the Company and EOTT GP LLC, as
guarantors, Standard Chartered Bank ("SCB"), as letter of credit agent, issuer
and collateral agent, and the letter of credit participants party thereto, (b)
the Second Amended and Restated Commodities Repurchase Agreement, dated as of
February [ ], 2003, among OLP, Standard Chartered Trade Services Corporation and
SCB, (c) the Second Amended and Restated Receivables Purchase Agreement, dated
as of February [ ], 2003, among OLP, Standard Chartered Trade Services
Corporation and SCB, and (d) the Term Loan Agreement, dated as of February [ ],
2003, among OLP, PLP, CLP and ELP, as borrowers, and the Company and EOTT GP
LLC, as guarantors, ▇▇▇▇▇▇ Brothers Inc., as term lender agent and the term
lenders party thereto) providing for revolving credit loans, term loans,
receivables or inventory financing (including through the sale of receivables or
inventory to such lenders or to special purpose, bankruptcy remote entities
formed to borrow from such lenders against such receivables or inventory) or
letters of credit or guarantees, in each case together with any extensions,
revisions, refinancings or replacements thereof in whole or in part.
"CURRENCY AGREEMENT" means, with respect to any Person, any foreign
exchange contract, currency swap agreement, currency option or other similar
agreement or arrangement as to which such Person is a party or beneficiary and
which is designed to protect such Person against fluctuations in currency
exchange rates.
"CUSTODIAN" means the Trustee, as custodian with respect to the Notes
in global form, or any successor entity thereto.
"DEFAULT" means any event that is, or with the passage of time or the
giving of notice or both would be, an Event of Default.
"DEPOSITARY AGENT" means the Depositary Agent as defined in the
Depositary Agreement.
"DEPOSITARY AGREEMENT" means the Depositary Agent Agreement by and
among the Issuers and the Bank of
New York, as Depositary Agent, dated [ ].
"DEPOSITORY" means The Depository Trust Company, its nominees and their
respective successors.
"DISINTERESTED DIRECTOR" means, with respect to any transaction or
series of transactions in respect of which the Board of Directors of the Company
is required to deliver a Board Resolution hereunder, a member of the Board of
Directors of the Company who does not have any material direct or indirect
financial interest (other than an interest arising solely from the beneficial
ownership of Equity Interests in the Company) in or with respect to such
transaction or series of transactions.
-9-
"DISQUALIFIED EQUITY" means any Equity Interest that, by its terms (or
by the terms of any security into which it is convertible, or for which it is
exchangeable, in each case at the option of the holder thereof), or upon the
happening of any event, matures or is mandatorily redeemable, pursuant to a
sinking fund obligation or otherwise, or redeemable at the option of the holder
thereof, in whole or in part, on or prior to the date which is 91 days after the
date on which the Notes mature. Notwithstanding the preceding sentence, any
Equity Interest that would constitute Disqualified Equity solely because of
holders thereof have the right to require the Company or a Restricted Subsidiary
to repurchase such Equity Interests upon the occurrence of a change of control
or an asset sale shall not constitute Disqualified Equity if the terms of such
Equity Interests provide that the Company or Restricted Subsidiary may not
repurchase or redeem any such Equity Interests pursuant to such provisions
unless such repurchase or redemption complies with Section 5.11 hereof; and
provided further, that "Disqualified Equity" shall not include any Equity
Interest that is solely redeemable with or solely exchangeable for Equity
Interests of such Person that are not Disqualified Equity.
"ELIGIBLE ACCOUNTS RECEIVABLE" means consolidated accounts receivable
of the Company and its Restricted Subsidiaries that are not more than 60 days
past due under their scheduled payment terms.
"ELP" means EOTT Energy Liquids L.P., a Delaware limited partnership.
"EOTT FINANCE" means
EOTT Energy Finance Corp., a Delaware corporation.
"EOTT GP LLC" means EOTT Energy General Partner, L.L.C., a Delaware
limited liability company.
"EPLP" means EOTT Energy Partners, L.P., a Delaware limited
partnership.
"EQUITY INTERESTS" means:
(1) in the case of a corporation, capital stock;
(2) in the case of a partnership or limited liability company,
partnership or membership interests (whether general or limited);
(3) in the case of an association or business entity (other
than a corporation, partnership or limited liability company) any and
all shares, interests, participations, rights or other equivalents
(however designated) of corporate stock;
(4) any other interest or participation that confers on a
Person the right to receive a share of the profits and losses of, or
distribution of assets of, the issuing Persons, and any rights (other
than debt securities convertible into capital stock) warrants or
options exchangeable for or convertible into such capital stock; and
-10-
(5) all warrants, options or other rights to acquire any of
the interests described in clauses (1) through (4) above (but excluding
any debt security that is convertible into, or exchangeable for, any of
the interests described in clauses (1) through (4) above).
"EVENT OF DEFAULT" has the meaning specified in Section 7.1 hereof.
"EXISTING INDEBTEDNESS" means the aggregate principal amount of
Indebtedness of the Company and its Restricted Subsidiaries in existence on the
date of this Indenture.
"EXCHANGE ACT" means the Securities Exchange Act of 1934, as amended
from time to time, and any successor act thereto.
"FIXED CHARGES" means, with respect to any Person for any period,
without duplication, (A) the sum of:
(1) the consolidated interest expense of such Person and its
Restricted Subsidiaries for such period, whether paid or accrued,
including, without limitation, amortization of debt issuance costs,
fees and original issue discount, non-cash interest payments, the
interest component of any deferred payment obligations, the interest
components of all payments associated with Capital Lease Obligations,
imputed interest with respect to Attributable Debt, commissions,
discounts, and other fees and charges incurred in respect of letters of
credit or bankers' acceptance financings and net payments, if any,
pursuant to Currency Agreements and Interest Rate Agreements; plus
(2) the consolidated interest of such Person and its
Restricted Subsidiaries that was capitalized during such period; plus
(3) any interest expense on Indebtedness of another Person
that is guaranteed by such Person or one of its Restricted Subsidiaries
or secured by a Lien on assets of such Person or one of its Restricted
Subsidiaries, whether or not such guarantee or Lien is called upon;
plus
(4) the product of (a) all dividend payments, whether or not
in cash, on any series of Disqualified Equity of such Person or any of
its Restricted Subsidiaries, other than dividend payments on Equity
Interests payable solely in Equity Interests of the Person (other than
Disqualified Equity) or to the Person or a Restricted Subsidiary of the
Person, times (b) a fraction, the numerator of which is one and the
denominator of which is one minus the then current combined federal,
state and local statutory tax rate of such Person, expressed as a
decimal, in each case, on a consolidated basis and in accordance with
GAAP; less
(B) to the extent included in (A) above, amortization or write-off of
deferred financing costs of such Person and its Restricted Subsidiaries during
such period and any charge related to, or any premium or penalty paid in
connection with, Incurring any such
-11-
Indebtedness of such Person and its Restricted Subsidiaries prior to its Stated
Maturity. In the case of both (A) and (B), such amounts will be determined after
elimination of intercompany accounts among such Person and its Restricted
Subsidiaries and in accordance with GAAP.
"FIXED CHARGE COVERAGE RATIO" means, with respect to any specified
Person for any period, the ratio of the Consolidated Cash Flow of such Person
and its Restricted Subsidiaries for such period to the Fixed Charges of such
Person for such period. In the event that the specified Person or any of its
Restricted Subsidiaries Incurs, assumes, guarantees, repays or redeems any
Indebtedness (other than revolving credit borrowings not constituting a
permanent commitment reduction) or issues or redeems Disqualified Equity
subsequent to the commencement of the period for which the Fixed Charge Coverage
Ratio is being calculated but prior to the date on which the event for which the
calculation of the Fixed Charge Coverage Ratio is made (the "CALCULATION DATE"),
then the Fixed Charge Coverage Ratio shall be calculated giving pro forma effect
to such Incurrence (and the application of the net proceeds thereof),
assumption, guarantee, repayment, or redemption of Indebtedness, or such
issuance or redemption of Disqualified Equity, as if the same had occurred at
the beginning of the applicable four-quarter reference period (and if such
Indebtedness is Incurred to finance the acquisition of assets, there shall be
included pro forma net income for such assets computed as provided in clause (1)
below, as if such assets had been acquired on the first day of such period).
In addition, for purposes of calculation the Fixed Charge Coverage
Ratio:
(1) acquisitions of businesses or assets (including, without
limitation, a single asset, a division or segment or an entire company)
that have been made by the specified Person or any of its Restricted
Subsidiaries, including through mergers or consolidations and including
any related financing transactions, during the four-quarter reference
period or subsequent to such reference period and on or prior to the
Calculation Date shall be deemed to have occurred on the first day of
the four-quarter reference period and Consolidated Cash Flow for such
reference period shall be calculated without giving effect to clause
(3) of the proviso set forth in the definition of Consolidated Net
Income, provided, however, that the Consolidated Cash Flow generated by
acquired assets for which no historical financial statements are
available from the seller for the period prior to its acquisition shall
be determined (in the reasonable and customary determination of the
Chief Financial Officer of the Company and as submitted to and approved
by the Board of Directors and set forth in an Officers' Certificate
delivered to the Trustee) (a) in the case of the acquisition of lease
barrel contracts, on the basis of the number of annual (or annualized)
lease barrels included in such assets times the Consolidated Cash Flow
per lease barrel of the Company and its Restricted Subsidiaries for the
four-quarter reference period and (b) in the case of the acquisition of
common carrier pipelines to the extent not included in clause (a), on
the basis of (i) the then applicable tariff per barrel established by
the Federal Energy Regulatory Commission (FERC), or other applicable
governmental
-12-
regulatory authority, as set forth in a schedule provided by the
seller, or such pipelines multiplied by the amount of the volume
transported for third parties over the four-quarter reference period
(or the annualized average of third party volumes available from the
seller, if volumes for the four-quarter reference period are not
available from the seller) on such pipelines, less (ii) the amount of
the volume transported for third parties over the four-quarter
reference period (or the annualized average of third party volumes
available from the seller, if volumes for the four-quarter reference
period are not available from the seller) on such pipelines multiplied
by the average operating cost (calculated on a basis consistent with
the Company's historical financial statements) per barrel for common
carrier pipelines of the Company and its Restricted Subsidiaries for
the four-quarter reference period; provided that in the case of an
acquisition or series of related acquisitions aggregating in excess of
$55.0 million, such pro forma Consolidated Cash Flow shall be
determined in accordance with this paragraph in writing by an
accounting or investment banking firm of national standing;
(2) the Consolidated Cash Flow attributable to discontinued
operations, as determined in accordance with GAAP, and operations or
business disposed of prior to the Calculation Date, shall be excluded;
(3) the Fixed Charges attributable to discontinued operations,
as determined in accordance with GAAP, and operations or business
disposed of prior to the Calculation Date shall be excluded, but only
to the extent that the obligations giving rise to such Fixed Charges
will not be obligations of the specified Person or any of its
Restricted Subsidiaries following the Calculation Date;
(4) interest on outstanding Indebtedness of the specified
Person or any of its Restricted Subsidiaries as of the last day of the
four-quarter reference period shall be deemed to have accrued at a
fixed rate per annum equal to the rate of interest on such Indebtedness
in effect on such last day after giving effect to any Interest Rate
Agreements with respect thereto then in effect; and
(5) if interest on any Indebtedness Incurred by the specified
Person or any of its Restricted Subsidiaries may optionally be
determined at an interest rate based upon a factor of a prime or
similar rate, a eurocurrency interbank offered rate or other rates,
then the interest rate in effect on the last day of the four-quarter
reference period will be deemed to have been in effect during such
period.
"GAAP" means United States generally accepted accounting principles set
forth in the options and pronouncements of the Accounting Principles Board of
the American Institute of Certified Public Accountants and statements and
pronouncements of the Financial Accounting Standards Board or in such other
statements by such other entity as have been approved by a significant segment
of the accounting profession, which are in effect as of the date of this
Indenture.
-13-
"GLOBAL NOTE" means a permanent Global Note substantially in the form
of Exhibit A bearing the legend set forth in Exhibit B.
"GUARANTEE" means a guarantee (other than by endorsement of negotiable
instruments for collection in the ordinary course of business), direct or
indirect, in any manner including, without limitation, by way of a pledge of
assets, or through letters of credit or reimbursement, "claw-back," "make-well"
agreements in respect thereof, of all or any part of any Indebtedness.
"HEDGING OBLIGATIONS" means, with respect to any Person, the net
obligations (not the notional amount) of such Person under Commodity Hedging
Agreements, Currency Agreements and Interest Rate Agreements.
"HOLDER" means a person in whose name a Note is registered.
"INCUR" means for any Person to, directly or indirectly, create, incur,
issue, assume, guarantee or otherwise become directly or indirectly liable,
contingently or otherwise. The term "Incurrence" when used as a noun shall have
a correlative meaning. The issuance of the PIK Notes to pay interest as provided
in this Indenture shall not be deemed the Incurrence of Indebtedness.
"INDEBTEDNESS" means, with respect to any specified Person, any
indebtedness of such Person, whether or not contingent, in respect of:
(1) borrowed money;
(2) bonds, notes, debentures or similar instruments or letter
of credit (or reimbursement agreements in respect thereof) other than
standby and documentary letters of credit and performance and surety
bonds issued by such Person in the ordinary course of business, to the
extent not drawn;
(3) banker's acceptances;
(4) Capital Lease Obligations;
(5) all Attributable Debt of such Person in respect of Sale
and Lease-Back Transactions not involving a Capital Lease Obligation;
(6) the balance deferred and unpaid of the purchase price of
any property, except any such balance that constitutes an accrued
expense or trade payable incurred in the ordinary course of business;
(7) Disqualified Equity; or
(8) any Hedging Obligations other than Commodity Hedging
Agreements entered into in the ordinary course of business and
consistent with
-14-
prior practice to hedge risk exposure in the operations, ownership of
assets or the management of liabilities of the Person and its
Restricted Subsidiaries;
if and to the extent any of the preceding items (other than letters of credit
and Hedging Obligations) would appear as a liability upon a balance sheet of the
specified Person prepared in accordance with GAAP. In addition, the term
"Indebtedness" includes all Indebtedness of others secured by a Lien or any
asset of the specified Person (whether or not such Indebtedness is assumed by
the specified Person) and, to the extent not otherwise included, the guarantee
by such Person of any indebtedness of any other Person, provided that a
guarantee otherwise permitted by this Indenture to be Incurred by the Company or
a Restricted Subsidiary of Indebtedness Incurred by the Company or a Restricted
Subsidiary in compliance with the terms of this Indenture shall not constitute a
separate Incurrence of Indebtedness.
The amount of any Indebtedness outstanding as of any date shall be:
(1) the accreted value thereof, in the case of any
Indebtedness issued with original issue discount; and
(2) the principal amount thereof, together with any interest
thereon that is more than 30 days past due, in the case of any other
Indebtedness.
For purposes of clause (7) of the preceding paragraph, Disqualified
Equity shall be valued at the maximum fixed redemption, repayment or repurchase
price, which shall be calculated in accordance with the terms of such
Disqualified Equity as if such Disqualified Equity were repurchased on any date
on which Indebtedness shall be required to be determined pursuant to this
Indenture, provided, however, that if such Disqualified Equity is not then
permitted by its terms to be redeemed, repaid or repurchased, the redemption,
repayment or repurchase price shall be the book value of such Disqualified
Equity. 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 and the maximum liability of any guarantees at such date; provided that
for purposes of calculating the amount of any non-interest bearing or other
discount security, such Indebtedness shall be deemed to be the principal amount
thereof that would be shown on the balance sheet of the issuer thereof dated
such date prepared in accordance with GAAP, but that such security shall be
deemed to have been Incurred only on the date of the original issuance 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 and the
maximum liability, upon the occurrence of the contingency giving rise to the
obligation, of any contingent obligations at such date.
"INDENTURE" means this instrument as originally executed and as it may
from time to time be supplemented or amended by one or more indentures
supplemental hereto entered into pursuant to the applicable provisions hereof.
-15-
"INITIAL NOTE" means the Note in aggregate principal amount of
$104,000,000 issued under this Indenture on the Issue Date to be held and
disbursed by the Depositary Agent pursuant to the Depositary Agreement and the
Plan. The Initial Note shall be in the same form as the Note attached as Exhibit
A, but shall be payable to the Depositary Agent, as Depositary Agent under the
Depositary Agreement.
"INTEREST RATE AGREEMENT" means, with respect to any Person, any
interest rate swap agreement, interest rate cap agreement, interest rate collar
agreement or other similar agreement or arrangement designed to protect such
Person against fluctuations in interest rates.
"INVENTORY" means goods (including hydrocarbons) owned by a Person and
held by that Person for sale that would be shown as Inventory on a balance sheet
of such Person prepared in accordance with GAAP and all documents of title
covering such inventory, and shall specifically include all "inventory" as such
term is defined in the Uniform Commercial Code.
"INVESTMENTS" means, with respect to any Person, all investments by
such Person in other Persons (including Affiliates) in the forms of direct or
indirect loans (including guarantees of Indebtedness or other obligations),
advances (other than advances to customers in the ordinary course of business
that are recorded as accounts receivable on the balance sheet of the lender and
commission, moving, travel and similar advances to officers and employees made
in the ordinary course of business) or capital contributions, purchases or other
acquisitions for consolidation of Indebtedness, Equity Interests or other
securities, together with all items that are or would be classified as
investments on a balance sheet prepared in accordance with GAAP. For purposes of
the definition of "Unrestricted Subsidiary," the definition of "Restricted
Payment" and Section 5.11 hereof, (1) "Investment" shall include the portion
(proportionate to the Company's Equity Interest in such Subsidiary) of the fair
market value of the net assets of any Subsidiary of the Company or any of its
Restricted Subsidiaries at the time that such Subsidiary is designated as
Unrestricted Subsidiary; provided, however, that upon a redesignation of such
Subsidiary as a Restricted Subsidiary, the Company or such Restricted Subsidiary
shall be deemed to continue to have a permanent "Investment" in such Subsidiary
at the time immediately before the effectiveness of such redesignation less the
portion (proportionate to the Company's or such Restricted Subsidiary's Equity
Interest in such Subsidiary) of the fair market value of the net assets of such
Subsidiary at the time of such redesignation, and (2) any property transferred
to or from an Unrestricted Subsidiary shall be valued at its fair market value
at the time of such transfer, in each case as determined in good faith by the
Board of Directors. If the Company or any Restricted Subsidiary sells or
otherwise disposes of any Equity Interest of any direct or indirect Restricted
Subsidiary of the Company such that, after giving effect to any such sale or
disposition, such Person is no longer a Restricted Subsidiary of the Company,
the Company shall be deemed to have made an Investment on the date of any such
sale or disposition equal to the fair market value of the Equity Interests of
such Restricted Subsidiary not sold or disposed of in an amount determined as
provided in Section 5.11(c) hereof.
-16-
"ISSUE DATE" means March 1, 2003.
"ISSUERS" means the Company and EOTT Finance.
"LEGEND" means the legend substantially in the form of Exhibit C.
"LIEN" means, with respect to any asset, any mortgage, lien (statutory
or otherwise), pledge, charge, security interest, hypothecation, assignment for
security, claim, preference, priority or encumbrance of any kind in respect of
such asset, whether or not filed, recorded or otherwise perfected under
applicable law, including any conditional sale or other title retention
agreement or other lease in the nature thereof (including a Capital Lease
Obligation and any Sale and Lease-Back Transaction), any option or other
agreement to grant a security interest in an any filing of or agreement to give
any financing statement under the Uniform Commercial Code (or equivalent
statute) of any jurisdiction.
"LLC AGREEMENT" means the Amended and Restated Agreement of Limited
Liability Company of the Company, dated March 1, 2003, as such agreement may be
amended from time to time.
"NET INCOME" means, with respect to any Person, the consolidated net
income (loss) of such Person and its Restricted Subsidiaries, determined in
accordance with GAAP and before any reduction in respect of preferred stock
dividends, excluding, however:
(1) the aggregate gain (but not loss in excess of such
aggregate gain), together with any related provision for taxes on such
gain, realized in connection with:
(a) any Asset Sale; or
(b) the disposition of any securities by such Person
or any of its Restricted Subsidiaries or the extinguishment of any
Indebtedness of such Person or any of its Restricted Subsidiaries; and
(2) the aggregate extraordinary gain (but not loss in excess of such
aggregate extraordinary gain), together with any related provision for taxes on
such aggregate extraordinary gain (but not loss in excess of such aggregate
extraordinary gain).
"NET PROCEEDS" means, with respect to any Asset Sale or sale of Equity
Interests, the aggregate proceeds received by the Company or any of its
Restricted Subsidiaries in cash or Cash Equivalents in respect of any Asset Sale
or sale of Equity Interests (including, without limitation, any cash received
upon the sale or other disposition of any non-cash consideration received in any
such sale), net of, without duplication, (1) the
-17-
direct costs relating to such Asset Sale or sale of Equity Interests, including,
without limitation, brokerage commissions and legal, accounting and investment
banking fees, sales commissions, recording fees, title transfer fees, and any
relocation expenses incurred as a result thereof, (2) taxes paid or payable as a
result thereof, in each case after taking into account any available tax credits
or deductions and any tax sharing arrangements and amounts required to be
applied to the repayment of Indebtedness secured by a Lien on the asset or
assets that were the subject of such Asset Sale or sale of Equity Interests, (3)
all distributions and payments required to be made to minority interest holders
in Restricted Subsidiaries as a result of such Asset Sale and (4) any amounts to
be set aside in any reserve established in accordance with GAAP or any amount
placed in escrow, in either case for adjustment in respect of the sale price of
such asset or assets or for liabilities associated with such Asset Sale or sale
of Equity Interests and retained by the Company or any of its Restricted
Subsidiaries until such time as such reserve is reversed or such escrow
arrangement is terminated, in which case Net Proceeds shall include only the
amount of the reserve so reversed or the amount returned to the Company or its
Restricted Subsidiaries from such escrow arrangement, as the case may be.
"NON-RECOURSE DEBT" means Indebtedness as to which:
(1) neither the Company nor any of its Restricted Subsidiaries
(a) provide 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 of such Indebtedness;
(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 of its Restricted Subsidiaries to declare a default on
such other Indebtedness or cause the payment thereof to be accelerated
or payable prior to its Stated Maturity; and
(3) the lenders have been notified in writing that they will
not have any recourse to the stock or assets of the Company or any of
its Restricted Subsidiaries;
provided, that in no even shall Indebtedness of any Person which is not a
Restricted Subsidiary fail to be Non-Recourse Debt solely as a result of any
default provisions contained in a guarantee thereof by the Company or any of its
Restricted Subsidiaries provided that the Company or such Restricted Subsidiary
was otherwise permitted to incur such guarantee pursuant to this Indenture.
"NOTES" has the meaning assigned to it in the recitals.
-18-
"OBLIGATIONS" means any principal, interest, penalties, fees,
indemnifications, reimbursement obligations, damages and other liabilities
payable under the documentation governing any Indebtedness.
"OFFICER" means, with respect to any Person, the Chairman of the Board,
the Chief Executive Officer, the President, any Vice President, the Chief
Financial Officer or the Treasurer of such Person.
"OFFICERS' CERTIFICATE" means a certificate signed by the Chairman of
the Board, the Chief Executive Officer, the President, any Vice President, and
by the Treasurer, any Assistant Treasurer, the Secretary or an Assistant
Secretary of the Company, and delivered to the Trustee.
"OLD NOTES" has the meaning assigned to it in the recitals.
"OLP" shall mean EOTT Energy Operating Limited Partnership, a Delaware
limited partnership.
"OPINION OF COUNSEL" means a written opinion of counsel, who may be
counsel for the Company (or any Subsidiary Guarantor), including an employee of
the Company (or any Subsidiary Guarantor), and who shall be reasonably
acceptable to the Trustee.
"OUTSTANDING", when used with respect to Notes, means, as of the date
of determination, all Notes theretofore authenticated and delivered under this
Indenture, except:
(1) Notes canceled by the Trustee or delivered to the Trustee
for cancellation;
(2) Notes for whose payment or redemption money in the
necessary amount has been theretofore deposited with the Trustee or any
Paying Agent (other than an Issuer) in trust or set aside and
segregated in trust by the Issuers (if either of the Issuers shall act
as its own Paying Agent) for the holders of such Notes; provided, that,
if such Notes are to be redeemed, notice of such redemption has been
duly given pursuant to this Indenture or provision therefor
satisfactory to the Trustee has been made; and
(3) Notes which have been paid pursuant to Section 2.7 or in
exchange for or in lieu of which other Notes have been authenticated
and delivered pursuant to this Indenture, other than any such Notes in
respect of which there shall have been presented to the Trustee proof
satisfactory to it that such Notes are held by a bona fide purchaser in
whose hands such Notes are valid obligations of the Issuers;
provided, however, that in determining whether the Holders of the requisite
principal amount of the Outstanding Notes have given any request, demand,
authorization,
-19-
direction, notice, consent or waiver hereunder, Notes owned by an Issuer or any
other obligor upon the Notes or any Affiliate of the Issuers or of such other
obligor shall be disregarded and deemed not to be Outstanding, except that, in
determining whether the Trustee shall be protected in relying upon any such
request, demand, authorization, direction, notice, consent or waiver, only Notes
which the Trustee knows to be so owned shall be so disregarded. Notes so owned
which have been pledged in good faith may be regarded as Outstanding if the
pledgee establishes to the satisfaction of the Trustee the pledgee's right so to
act with respect to such Notes and that the pledgee is not one of the Issuers or
any other obligor upon the Notes or an Affiliate of the Issuers or of such other
obligor.
"PAYING AGENT" means any Person (including the Company acting as Paying
Agent) authorized by the Issuers to pay the principal of (and premium, if any,
on) or interest on any Notes on behalf of the Issuers.
"PERMITTED BUSINESS" means gathering, transporting (by barge, pipeline,
ship, truck or other modes of hydrocarbon transportation), terminalling,
storing, processing, blending, marketing, dehydrating and otherwise handling
hydrocarbons, including, without limitation, constructing, owning and operating
pipeline, dehydration, processing and other energy-related facilities, financing
the production of hydrocarbons for sale to the Company or one of its Restricted
Subsidiaries and activities or services reasonably related or ancillary thereto,
including entering into Hedging Obligations to support these businesses.
"PERMITTED INVESTMENTS" means:
(1) any Investment in, or that results in the creation of, any
Restricted Subsidiary of the Company;
(2) any Investment in the Company or in a Restricted
Subsidiary of the Company (excluding redemptions, purchases,
acquisitions or other retirements of Equity Interests in the Company);
(3) any Investment in cash or Cash Equivalents;
(4) any Investment by the Company or any of its Restricted
Subsidiaries in a Person if as a result of such Investment:
(a) such Person becomes a Restricted Subsidiary of the
Company; or
(b) such Person is merged, consolidated or amalgamated
with or into, or transfers or conveys substantially all of its assets
to, or is liquidated into, the Company or a Restricted Subsidiary of
the Company;
-20-
(5) any Investment made as a result of the receipt of
consideration consisting of other than cash or Cash Equivalents from an
Asset Sale that was made pursuant to and in compliance with Section
5.14 hereof;
(6) any acquisition of assets solely in exchange for the
issuance of Equity Interests (other than Disqualified Equity) of the
Company;
(7) payroll advances in the ordinary course of business and
other advances and loans to officers and employees of the Company or
any of its Restricted Subsidiaries, so long as the aggregate principal
amount of such advances and loans does not exceed $2.0 million at any
one time outstanding;
(8) Investments in stock, obligations or securities received
in settlement of debts owing to the Company or any of its Restricted
Subsidiaries as a result of bankruptcy or insolvency proceedings or
upon the foreclosure, perfection or enforcement of any Lien in favor of
the Company or any such Restricted Subsidiary, in each case as to debt
owing to the Company or any of its Restricted Subsidiaries that arose
in the ordinary course of business of the Company or any such
Restricted Subsidiary;
(9) any Investment in Hedging Obligations;
(10) any Investments in prepaid expenses, negotiable
instruments held for collection and lease, utility, workers'
compensation and performance and other similar deposits, and prepaid
expenses made in the ordinary course of business;
(11) any Investments required to be made pursuant to any
agreement or obligation of the Company or any Restricted Subsidiary in
effect on the date of this Indenture and listed on a schedule to this
Indenture; and
(12) other Investments in any Person engaged in a Permitted
Business (other than an Investment in an Unrestricted Subsidiary)
having an aggregate fair market value (measured on the date each such
Investment was made and without giving effect to subsequent changes in
value), when taken together with all other Investments made pursuant to
this clause (12) since the date of this Indenture and existing at the
time the Investment, which is the subject of the determination, was
made, not to exceed $15.0 million.
"PERMITTED LIENS" means:
(1) Liens securing the Indebtedness permitted to be Incurred
under Credit Facilities;
(2) easements, rights-of-way, restrictions, minor defects and
irregularities in title and other similar charges or encumbrances not
interfering in
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any material respect with the business of the Company or its Restricted
Subsidiaries;
(3) Liens securing reimbursement obligations of the Company or
a Restricted Subsidiary with respect to letters of credit and
guarantees by other persons encumbering only documents and other
property relating to such letters of credit and the products and
proceeds thereof;
(4) Liens encumbering deposits made to secure obligations
arising from statutory, regulatory, contractual or warranty
requirements (other than debt) of the Company and its Restricted
Subsidiaries;
(5) Liens in favor of the Company or any Restricted
Subsidiary;
(6) any interest or title of a lessor in the property subject
to a Capital Lease Obligation permitted to be incurred by Section 5.12
hereof;
(7) Lien on property of a Person existing at the time such
Person is merged with or into or consolidated with the Company or any
Restricted Subsidiary of the Company, provided that such Liens were in
existence prior to the contemplation of such merger or consolidation
and do not extend to any assets other than those of the Person merged
into or consolidated with the Company or such Restricted Subsidiary;
(8) Liens on property existing at the time of acquisition
thereof by the Company or any Restricted Subsidiary of the Company,
provided that such Liens were in existence prior to the contemplation
of such acquisition and relate solely to such property, accessions
thereto and the proceeds thereof;
(9) Liens to secure the performance of tenders, bids, leases,
statutory obligations, surety or appeal bonds, government contracts,
performance bonds or other obligations of a like nature Incurred in the
ordinary course of business;
(10) Liens on any property or asset acquired, constructed or
improved by the Company or any Restricted Subsidiary, which (a) are in
favor of the seller of such property or assets, in favor of the Person
constructing or improving such asset or property, or in favor of the
Person that provided the funding for the acquisition, construction or
improvement of such asset or property, (b) are created within 360 days
after the date of acquisition, construction or improvement, (c) secure
the purchase price or construction or improvement cost, as the case may
be, of such asset or property in an amount up to 100% of the fair
market value (as determined by the Board of Directors) of such
acquisition, construction or improvement of such asset or property, and
(d) are limited to the asset or property so acquired, constructed or
improved (and proceeds thereof, accessions thereto and upgrades
thereof);
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(11) Liens to secure performance of Hedging Obligations of the
Company or a Restricted Subsidiary;
(12) Liens existing on the date of this Indenture and Liens to
secure any extension, refinancing, renewal, replacement or defeasance
of any Indebtedness or other obligations secured thereby; provided,
however, that (a) such new Lien shall be limited to all or part of the
same property that secured the original Indebtedness or obligation
(plus improvements on such property); and (b) the Indebtedness or other
obligation secured by such Lien at such time is not increased to any
amount greater than the sum of: (i) the outstanding principal amount
or, if greater, committed amount of the Indebtedness or other
obligation extended, refinanced, renewed, replaced or defeased at the
time the original Lien became a Permitted Lien; and (ii) an amount
necessary to pay any fees and expenses, including premiums, related to
such extension, refinancing, renewal, replacement or defeasance;
(13) Liens on and pledges of the Equity Interest of any
Unrestricted Subsidiary owned by the Company or any Restricted
Subsidiary to the extent securing Non-Recourse Debt or indebtedness
(other than Permitted Debt) otherwise permitted by the first paragraph
under Section 5.12 hereof;
(14) statutory and contractual Liens of landlords and
warehousemen's, producer's, carriers', mechanics', suppliers',
materialman's, repairmen's, or other like Liens arising in the ordinary
course of business and with respect to amounts not yet delinquent or
being contested in good faith by appropriate proceedings, if a reserve
or appropriate provision, if any, as shall be required in conformity
with GAAP shall have been made therefore;
(15) Liens Incurred or deposits made in the ordinary course of
business in connection with workers' compensation, unemployment
insurance and other similar types of social security, old age pension
or public liability obligations;
(16) Liens on pipelines or pipeline facilities that arise by
operation of law;
(17) Liens arising under operating agreements, joint venture
agreements, partnership agreements, oil and gas leases, farm out
agreements, division orders, contracts for sale, transportation or
exchange of oil and natural gas, unitization and pooling declarations
and agreements, area of mutual interest agreements and other agreements
arising in the ordinary course of the Company's or any Restricted
Subsidiary's business that are customary in the Permitted Business;
(18) judgment and attachment Liens not giving rise to a
Default;
(19) Liens securing the Obligations of the Issuers under the
Notes and this Indenture and of the Subsidiary Guarantors under the
Subsidiary Guarantees;
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(20) Liens for taxes, assessments or governmental charges or
claims that are not yet delinquent or that are being contested in good
faith by appropriate proceedings promptly instituted and diligently
concluded, provided that any reserve or other appropriate provision as
shall be required in conformity with GAAP shall have been made
therefore;
(21) Liens arising from protective filings made in the
appropriate office(s) for the filing of a financing statement in the
applicable jurisdiction(s) in connection with any lease, consignment or
similar transaction otherwise permitted hereby, which filings are made
for the purpose of perfecting the interest of the secured party in the
relevant items, if the transaction were subsequently classified as a
sale secured lending arrangement;
(22) Liens arising out of consignment or similar arrangements
for sale of goods;
(23) 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; and
(24) Liens Incurred in the ordinary course of business of the
Company or any Restricted Subsidiary of the Company with respect to
obligations that do not exceed $5.0 million at any one time
outstanding.
"PERMITTED REFINANCING INDEBTEDNESS" means any Indebtedness of the
Company or any of its Restricted Subsidiaries issued in exchange for, or the net
proceeds of which are used to extend, refinance, renew, replace, defease or
refund other Indebtedness of the Company or any of its Restricted Subsidiaries
(other than inter-company Indebtedness); provided that:
(1) the principal amount (or accreted value, if applicable) of
such Permitted Refinancing Indebtedness does not exceed the principal
amount of (or accreted value, if applicable), plus accrued interest on
the Indebtedness so extended, refinanced, renewed, replaced, defeased
or refunded (plus the amount of necessary fees and expenses Incurred in
connection therewith and any premiums paid on the Indebtedness
refinanced);
(2) such Permitted Refinancing Indebtedness has a final
maturity date no earlier than the final maturity date of, and has a
Weighted Average Life to Maturity equal to, or greater than the
Weighted Average Life to Maturity of, the Indebtedness being extended,
refinanced, renewed, replaced, defeased or refunded;
(3) if the Indebtedness being extended, refinanced, renewed,
replaced, defeased or refunded is subordinated in right of payment to
the Notes or the
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Subsidiary Guarantees, such Permitted Refinancing Indebtedness has a
final maturity date later than the final maturity date of, and is
subordinated in right of payment to, the Notes or the Subsidiary
Guarantees, as the case may be, on terms at least as favorable to the
Holders of Notes as those contained in the documentation governing the
Indebtedness being extended, refinanced, renewed, replaced, defeased or
refunded; and
(4) such Indebtedness is Incurred either by the Company or by
the Restricted Subsidiary that is the obligor on the Indebtedness being
extended, refinanced, renewed, replaced, defeased or refunded.
"PERSON" means any individual, corporation, partnership, join venture,
association, join-stock company, trust, unincorporated organization or
government or agency or political subdivision thereof (including any subdivision
or ongoing business of any such entity or substantially all of the assets of any
such entity, subdivision or business)
"PIK NOTES" means up to $10,660,000 in aggregate principal amount of
additional Notes issued in lieu of the payment of interest in cash at an assumed
rate of 10% per annum, each dated as of the Interest Payment Date on which such
PIK Notes are issued.
"PLAN OF REORGANIZATION" has the meaning assigned to it in the
recitals.
"PLP" means EOTT Energy Pipeline Limited Partnership, a Delaware
limited partnership.
"RATING CATEGORY" means:
(1) with respect to Standard & Poor's Ratings Group, any of
the following categories: AAA, AA, A, BBB, BB, B, CCC, CC, C and D (or
equivalent successor categories); and
(2) with respect to ▇▇▇▇▇'▇ Investors Service, Inc., any of
the following categories: Aaa, Aa, A, Baa, Ba, B, Caa, Ca, C and D (or
equivalent successor categories).
"RATING DECLINE" means a decrease in the rating of the Notes by either
▇▇▇▇▇'▇ Investors Service, Inc. or Standard & Poor's Ratings Group by one or
more gradations (including gradations within Rating Categories as well as
between Rating Categories). In determining whether the rating of the Notes has
decreased by one or more gradations, gradations within Rating Categories, namely
+ and C for Standard & Poor's Ratings Group, and 1, 2 and 3 for ▇▇▇▇▇'▇
Investors Service, Inc., will be taken into account; for example, in the case of
Standard & Poor's Ratings Group, a rating decline either from BB+ to BB or BBC
to B+ will constitute a decrease of one gradation.
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"REGISTERED HOLDER" means the Person in whose name a Registered Note is
registered in the Note Register.
"REGISTERED NOTE" means any Note registered as to principal and
interest in the Note Register.
"RESALE RESTRICTION TERMINATION DATE" means the later of (1) the
termination of a consecutive three month period during which a Holder of a
Transfer Restricted Note is not deemed to be an Affiliate, and (2) March 1,
2005.
"RESPONSIBLE OFFICER", when used with respect to the Trustee, means any
officer within the Corporate Trust Office, including any vice president, any
assistant vice president, any trust officer or any other officer of the Trustee
performing functions similar to those performed by the persons who at the time
shall be such officers, and any other officer of the Trustee to whom corporate
trust matters are referred because of his knowledge of and familiarity with the
particular subject.
"RESTRICTED INVESTMENT" means an Investment other than a Permitted
Investment.
"RESTRICTED SUBSIDIARY" means any Subsidiary of the Company that is not
an Unrestricted Subsidiary. Notwithstanding anything in this Indenture to the
contrary, EOTT Finance shall be designated as a Restricted Subsidiary of the
Company.
"SALE AND LEASE-BACK TRANSACTION" means an arrangement relating to
property owned by the Company or a Restricted Subsidiary on the Issue Date or
thereafter acquired by the Company or a Restricted Subsidiary whereby the
Company or a Restricted Subsidiary transfers such property to a Person and the
Company or a Restricted Subsidiary leases it from such Person.
"SEC" means the Securities and Exchange Commission.
"SECURITIES ACT" means the Securities Act of 1933, as amended from time
to time, and any successor act thereto.
"SENIOR DEBT" means:
(1) all Indebtedness outstanding under Credit Facilities and
all Currency Agreements and Interest Rate Agreements with respect
thereto;
(2) any other Indebtedness permitted to be Incurred by the
Company and the Restricted Subsidiaries under the terms of this
Indenture unless the instrument under which such Indebtedness is
Incurred expressly provides that it is subordinated in right of payment
to the Notes; and
(3) All Obligations with respect to the items listed in the
preceding clauses (1) and (2).
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Notwithstanding anything to the contrary in the preceding, Senior Debt
will not include:
(1) any Indebtedness that is expressly subordinate or junior
in right of payment to any Indebtedness of the Company or any
Subsidiary Guarantor;
(2) any liability for federal, state, local or other taxes
owed or owing by the Company or any Subsidiary Guarantor;
(3) any Indebtedness of the Company or any of its Subsidiaries
to any of its Subsidiaries or other Affiliates; or
(4) any Indebtedness that is Incurred in violation of this
Indenture.
"SIGNIFICANT SUBSIDIARY" means any Subsidiary that would be a
"significant subsidiary" as defined in Article 1, Rule 1-02 of Regulation S-X,
promulgated pursuant to the Securities Act and the Exchange Act, as such
Regulation is in effect on the date hereof.
"STATED MATURITY" means, with respect to any installment of interest or
principal on any series of Indebtedness, the date on which such payment of
interest or principal was scheduled to be paid in the original documentation
governing such Indebtedness, and shall not include any contingent obligations to
repay, redeem or repurchase any such Interest or principal prior to the date
originally scheduled for the payment thereof.
"SUBSIDIARY" means, with respect to any Person:
(1) any corporation, association or other business entity
(other than a partnership) of which more than 50% of the Voting Stock
is at the time owned or controlled, directly or indirectly, by such
Person or one or more of the other Subsidiaries of that Person (or a
combination thereof); and
(2) any partnership where (i) more than 50% of the Equity
Interests (considering all partners' Equity Interests as a single
class), is at the time owned or controlled, directly or indirectly, by
such Person, one or more other Subsidiaries of such Person or a
combination thereof, and (ii) more than 50% of the general partner
interests is at the time owned or controlled, directly or indirectly,
by such Person, one or more other Subsidiaries of such Person, the
general partner of such Person, or any Affiliate of the general partner
or a combination thereof.
"SUBSIDIARY GUARANTORS" means each of:
(1) the Restricted Subsidiaries;
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(2) any other Subsidiary that executes a Subsidiary Guarantee
in accordance with the provisions of this Indenture; and
(3) their respective successors and assigns.
Notwithstanding anything in this Indenture to the contrary, EOTT
Finance shall not be a Subsidiary Guarantor.
"TRANSFER RESTRICTED NOTE" means any Note issued to an "underwriter" as
defined under Section 1145 of the Bankruptcy Code.
"TRUST INDENTURE ACT" means the Trust Indenture Act of 1939, as in
force at the date of this Indenture and, to the extent required by law, as
amended from time to time.
"TRUSTEE" initially means The Bank of
New York and any other Person or
Persons appointed as such from time to time pursuant to Section 8.8 and subject
to the provisions of Article VIII, includes its or their successors and assigns.
"U.S. GOVERNMENT OBLIGATIONS" means securities that are (1) direct
obligations of the United States of America for the payment of which its full
faith and credit is pledged; (2) obligations of a Person controlled or
supervised by and acting as an agency or instrumentality of the United States of
America the payment of which is unconditionally guaranteed as a full faith and
credit obligation by the United States of America, which, in either case under
clauses (1) or (2) above, are not callable or redeemable at the option of the
issuers thereof; or (3) depository receipts issued by a bank or trust company as
custodian with respect to any such U.S. Government Obligations or a specific
payment of interest on or principal of any such U.S. Government Obligation held
by such custodian for the account of the holder of a depository receipt,
provided that (except as required by law) such custodian is not authorized to
make any deduction from the amount payable to the holder of such depository
receipt from any amount received by the custodian in respect to the U.S.
Government Obligation evidenced by such depository receipt.
"UNRESTRICTED SUBSIDIARY" means any Subsidiary of the Company (other
than EOTT Finance) that is designated by the Board of Directors as an
Unrestricted Subsidiary pursuant to a Board Resolution, provided that, at the
time of such designation, (A) no portion of the Indebtedness or other
obligations of such Subsidiary (whether contingent or otherwise and whether
pursuant to the terms of such Indebtedness or the terms governing the
organization of such Subsidiary or by law) (1) is guaranteed by the Company or
any other Restricted Subsidiary, (2) is recourse to or obligates the Company or
any Restricted Subsidiary in any way (including any "claw-back," "keep-well,"
"make-well" or other agreements, arrangements or understandings to maintain the
financial performance or results of operations of such Subsidiary or to
otherwise infuse or contribute cash to such Subsidiary) or (3) subjects any
property or assets of the Company or any Restricted Subsidiary, directly or
indirectly, contingently or otherwise, to the satisfaction of such Indebtedness,
unless such Investment or Indebtedness is permitted by the provisions of Section
5.11 and 5.12 hereof, (B) no Equity Interests of a Restricted
-28-
Subsidiary are held by such Subsidiary, directly or indirectly, and (C) the
amount of the Company's Investment, as determined at the time of such
designation, in such Subsidiary from the date of this Indenture to the date of
such designation is treated as of the date of such designation as a Restricted
Investment or Permitted Investment, as applicable.
Any designation of a Subsidiary of the Company as an Unrestricted
Subsidiary shall be evidenced by the Board Resolution giving effect to such
designation and an Officers' Certificate certifying that such designation
compiled with the preceding conditions and was permitted by Section 5.11 hereof.
If, at any time, any Unrestricted Subsidiary would fail to meet the preceding
requirements as an Unrestricted Subsidiary, it shall thereafter cease to be an
Unrestricted Subsidiary for purposes of this Indenture and any Indebtedness of
such Subsidiary shall be deemed to be Incurred by a Restricted Subsidiary of the
Company as of such date and, if such Indebtedness is not permitted to be
Incurred as of such date under Section 5.12 hereof the Company shall be in
Default of such covenant. The Board of Directors may at any time designate any
Unrestricted Subsidiary to be a Restricted Subsidiary; provided that such
designation shall be deemed to be an Incurrence of Indebtedness by such
Unrestricted Subsidiary and such designation shall only be permitted if (1) such
Indebtedness is permitted under Section 5.12 hereof, calculated on a pro forma
basis as if such designation had occurred at the beginning of the four-quarter
reference period; (2) no Default would be in existence following such
designation; and (3) such subsidiary signs a Subsidiary Guarantee.
"VOTING STOCK" of any Person as of any date means the equity Interests
of such Person pursuant to which the holders thereof have the general voting
power under ordinary circumstances to elect at least a majority of the board of
directors, managers, general partners or trustees of any Person (irrespective of
whether or not, at the time, Equity Interests of any other class or classes
shall have, or might have, voting power by reason of the occurrence of any
contingency) or, with respect to a partnership (whether general or limited), any
general partner interest in such partnership.
"WEIGHTED AVERAGE LIFE TO MATURITY" means, when applied to any
Indebtedness at any date, 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 payments of principal, including payment at
final maturity, in respect thereof, by (b) the number of years
(calculated to the nearest one-twelfth) that will elapse between such
date and the making of such payment; by
(2) the then outstanding principal amount of such
Indebtedness.
"WHOLLY-OWNED RESTRICTED SUBSIDIARY" means any Restricted Subsidiary of
which all of the outstanding Equity Interests (other than directors' qualifying
shares, if any, or other ownership interests required by applicable law to be
held by third parties) shall at the time be owned by the Company and its
Restricted Subsidiaries.
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SECTION 1.2 OTHER DEFINITIONS
DEFINED IN
TERM SECTION
---- ----------
(a) "Affiliate Transaction"........................................................ 5.18
(b) "Agent Member"................................................................. 2.13
(c) "Asset Sale Offer"............................................................. 5.14
(d) "ATOP"......................................................................... 3.3
(e) "Change of Control Offer"...................................................... 5.19
(f) "Change of Control Payment".................................................... 5.19
(g) "Change of Control Payment Date"............................................... 5.19
(h) "Covenant Defeasance".......................................................... 11.3
(i) "Defaulted Interest"........................................................... 2.14
(j) "Event of Default"............................................................. 7.1
(k) "Excess Proceeds".............................................................. 5.14
(l) "Incremental Funds"............................................................ 5.11
(m) "Interest Payment Date"........................................................ 2.2
(n) "Legal Defeasance"............................................................. 11.2
(o) "Note Obligations"............................................................. 12.1
(p) "Note Register................................................................. 2.5
(q) "Offer Amount"................................................................. 3.3
(r) "Offer Period"................................................................. 3.3
(s) "Payment Default".............................................................. 7.1
(t) "Permitted Debt"............................................................... 5.12
(u) "Physical Note"................................................................ 2.1
(v) "Purchase Date"................................................................ 3.3
(w) "Registrar".................................................................... 2.5
(x) "Restricted Payments".......................................................... 5.11
(y) "Subsidiary Guarantees"........................................................ 12.1
(z) "Successor Company"............................................................ 4.1
SECTION 1.3 INCORPORATION BY REFERENCE OF TRUST INDENTURE ACT. This
Indenture is subject to the mandatory provisions of the Trust Indenture Act
which are incorporated by reference in and made a part of this Indenture. The
following Trust Indenture Act terms have the following meanings:
"INDENTURE SECURITIES" means the Notes,
"INDENTURE SECURITIES HOLDER" means a Holder,
"INDENTURE TO BE QUALIFIED" means this Indenture,
"INDENTURE TRUSTEE" or "INSTITUTIONAL TRUSTEE" means the Trustee, and
"OBLIGOR" on the indenture securities means the Issuers or any other
obligor on the Notes.
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All other Trust Indenture Act terms used in this Indenture that are
defined by the Trust Indenture Act, defined by Trust Indenture Act reference to
another statute or defined by rules of the SEC have the meanings assigned to
them by such definitions.
SECTION 1.4 RULES OF CONSTRUCTION. Unless the context otherwise
requires:
(1) a term has the meaning assigned to it;
(2) an accounting term not otherwise defined has the meaning
assigned to it in accordance with GAAP;
(3) "or" is not exclusive;
(4) "including" means including without limitation;
(5) words in the singular include the plural and words in the
plural include the singular; and
(6) the principal amount of any Disqualified Equity shall be
the greater of (a) the maximum liquidation value of such Disqualified
Equity and (b) the maximum mandatory redemption or mandatory repurchase
price with respect to such Disqualified Equity.
ARTICLE II.
THE NOTES
SECTION 2.1 FORMS GENERALLY.
The definitive Notes shall be printed, lithographed or engraved on
steel-engraved borders or may be produced in any other manner, all as determined
by the officers executing such Notes or notations of Subsidiary Guarantees, as
the case may be, as evidenced by their execution of such Notes or notations of
Subsidiary Guarantees, as the case may be.
The Notes, the notations thereon relating to the Subsidiary Guarantees,
if any, and the Trustee's certificate of authentication shall be in
substantially the form set forth in this Article and Exhibit A, with such
appropriate insertions, omissions, substitutions and other variations as are
required or permitted by this Indenture, and may have such letters, CUSIP or
other numbers or other marks of identification and such legends or endorsements
placed thereon as may be required to comply with the rules of any securities
exchange or as may, consistently herewith, be determined by the officers
executing such Notes or notations of Subsidiary Guarantees, as the case may be,
as evidenced by their execution of the Notes or notations of Subsidiary
Guarantees, as the
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case may be. Any portion of the text of any Note may be set forth on the reverse
thereof, with an appropriate reference thereto on the face of the Note.
Notes (including the notations thereon relating to the Subsidiary
Guarantees, if any, and the Trustee's certificate of authentication) issued
hereunder shall be issued initially in the form of one or more Global Notes
deposited with the Trustee, as custodian for the Depository, duly executed by
the Company and authenticated by the Trustee as hereinafter provided. Subject to
the limitation set forth in Section 2.2, the principal amounts of the Global
Notes may be increased or decreased from time to time by adjustments made on the
records of the Trustee as custodian for the Depository, as hereinafter provided.
Notes (including the notations thereon relating to the Subsidiary
Guarantees, if any, and the Trustee's certificate of authentication) exchanged
for beneficial interests in a Global Note as described in Section 2.13 shall be
issued in the form of permanent certificated Notes in registered form in
substantially the form set forth in Exhibit A hereto ("PHYSICAL NOTES").
SECTION 2.2 TITLE AND TERMS.
The aggregate principal amount of Notes to be authenticated and
delivered under this Indenture for original issue on the Issue Date is limited
to $104,000,000, and after the Issue Date up to an additional $10,660,000 in
aggregate principal amount of PIK Notes may be issued, authenticated and
delivered hereunder solely to pay interest due on the first two Interest Payment
Dates.
The Notes shall be known and designated as the "9% SENIOR NOTES DUE
2010" of the Company. The Stated Maturity of the Notes shall be March 1, 2010,
and they shall bear interest at the rate of 9% per annum from the date of their
original issuance, or from the most recent Interest Payment Date to which
interest has been paid (in cash or by the issuance of PIK Notes) or duly
provided for, payable semiannually on September 1st and March 1st in each year,
of if any such day is not a business day, on the next succeeding business day
(each an "INTEREST PAYMENT DATE"), commencing, in the case of the Notes
initially issued hereunder, on September 1, 2003, and at said Stated Maturity,
until the principal thereof is paid or duly provided for.
The Company, in its sole discretion, may pay up to $10,660,000 in
interest due on the first two Interest Payment Dates in kind by issuing PIK
Notes in lieu of paying cash. Payments of interest in kind (rather than cash) by
issuance of PIK Notes shall be at an assumed interest rate of 10% per annum. For
the avoidance of doubt, for example, the Company may issue $5.2 million in
aggregate principal amount of PIK Notes in lieu of paying $4.68 million of
interest in cash on the first Interest Payment Date and $5.46 million in
aggregate principal amount of PIK Notes in lieu of paying $4.914 million of
interest in cash on the second Interest Payment Date. Unless the Company
delivers an Officers' Certificate at least three business days prior to the
applicable Interest Payment Date stating that the Company elects to make all or
a portion of a payment of interest in
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PIK Notes, the Company shall be deemed to have elected to make such payment of
interest in cash.
The principal of (and premium, if any, on) and interest on the Notes
shall be payable at the office or agency of the Company maintained for such
purpose in The City of
New York; provided, however, that, at the option of the
Company, interest may be paid on Physical Notes by check mailed on or before the
due date to addresses of the Persons entitled thereto as such addresses shall
appear on the Note Register.
The Notes shall be redeemable as provided in Article III hereof.
The Notes shall be subject to defeasance at the option of the Company
as provided in Article XI hereof.
The Notes shall be guaranteed by the Subsidiary Guarantors as provided
in Article XII hereof.
SECTION 2.3 DENOMINATIONS.
The Notes shall be issuable only in registered form without coupons and
only in denominations of $1.00 and any integral multiple thereof.
SECTION 2.4 EXECUTION OF NOTES. The Notes shall be signed on behalf of
each of the Issuers by its Chairman of the Board, its Vice Chairman, its Chief
Executive Officer, its President or a Vice President and by its Secretary, an
Assistant Secretary, a Treasurer or an Assistant Treasurer. Such signatures upon
the Notes may be the manual or facsimile signatures of the present or any future
such authorized officers and may be imprinted or otherwise reproduced on the
Notes. The seal of the Issuers, if any, may be in the form of a facsimile
thereof and may be impressed, affixed, imprinted or otherwise reproduced on the
Notes.
In case any officer of either of the Issuers who shall have signed any
of the Notes shall cease to be such officer before the Notes so signed shall
have been authenticated and delivered by the Trustee, or disposed of by the
Issuers, such Notes nevertheless may be authenticated and delivered or disposed
of as though the Person who signed such Notes had not ceased to be such officer
of the Company or EOTT Finance; and any Note may be signed on behalf of the
Issuers by such Persons as, at the actual date of the execution of such Note,
shall be the proper officers of the Issuers, although at the date of such Note
or of the execution of this Indenture any such Person was not such officer.
At any time after the execution and delivery of this Indenture, the
Company may deliver Notes executed by the Company (and having the notations of
Subsidiary Guarantees executed by such Subsidiary Guarantors) to the trustee for
authentication, together with a Company Order for the authentication and
delivery of such Notes, and the Trustee in accordance with such Company Order
shall authenticate and deliver such Notes with the notations of the Subsidiary
Guarantees thereon as provided in this
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Indenture. Such Company Order shall specify the principal amount of the Notes to
be authenticated and the date on which the original issue of Notes is to be
authenticated.
Each Note shall be dated the date of its authentication.
No Note shall be entitled to any benefit under this Indenture or be
valid or obligatory for any purpose unless there appears on such note a
certificate of authentication substantially in the form contained in Exhibit A
executed by the Trustee by manual signature of an authorized signatory, and such
certificate upon any Note shall be conclusive evidence, and the only evidence,
that such Note has been duly authenticated and delivered hereunder and is
entitled to the benefits of this Indenture.
In case the Company, pursuant to and in compliance with Article IV
hereof, shall be consolidated or merged with or into any other Person or shall
sell, convey, transfer, lease or otherwise dispose of all or substantially all
of its assets to any Person, and the successor Person resulting from such
consolidation, or surviving such merger, or into which the Company shall have
been merged, or the Person which shall have received a sale, conveyance,
transfer, lease or other disposition as aforesaid, shall have executed, if
required, an indenture supplemental hereto with the Trustee pursuant to Article
IV hereof, any of the Notes authenticated or delivered prior to such sale,
consolidation, merger, conveyance, transfer, lease or other disposition may,
from time to time, at the request of the successor Person be exchanged for other
Notes executed in the name of the successor Person with such changes in
phraseology and form as may be appropriate, but otherwise in substance of like
tenor as the Notes surrendered for such exchange and of like principal amount;
and the Trustee, upon Company Order of the successor Person, shall authenticate
and deliver Notes as specified in such request for the purpose of such exchange.
If Notes shall at any time be authenticated and delivered in any new name of a
successor Person pursuant to this Section in exchange or substitution for or
upon registration of transfer of any Notes, such successor Person, at the option
of the Holders but without expense to them, shall provide for the exchange of
all Notes at the time Outstanding for Notes authenticated and delivered in such
new name.
SECTION 2.5 REGISTRATION OF TRANSFER AND EXCHANGE. (a) The Issuers
shall keep or cause to be kept a register for the Registered Notes (hereinafter
collectively referred to as the "NOTE REGISTER"), in which, subject to such
reasonable regulations as it may prescribe, the Issuers shall provide for the
registration of the Registered Notes and the transfer of the Registered Notes as
in this Article II provided. At all reasonable times the Note Register shall be
open for inspection by the Trustee. Subject to Section 2.13, upon due
presentment for registration of transfer of any Registered Notes at any office
or agency to be maintained by the Issuers in accordance with the provisions of
Section 5.2, the Issuers shall execute and the Trustee shall authenticate and
deliver in the name of the transferee or transferees a new Registered Note or
Notes of authorized denominations for a like aggregate principal amount.
Unless and until otherwise determined by the Issuers by resolution of
the their respective Boards of Directors and , the register of the Issuers for
the purpose of
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registration, exchange or registration of transfer of the Registered Notes shall
be kept at the Corporate Trust Office of the Trustee and, for this purpose, the
Trustee shall be designated "REGISTRAR."
Registered Notes (other than a Global Note) may be exchanged for a like
aggregate principal amount of Registered Notes of other authorized
denominations. Subject to Section 2.13, Registered Notes to be exchanged shall
be surrendered at the office or agency to be maintained by the Issuers as
provided in Section 5.2, and the Issuers shall execute and the Trustee shall
authenticate and deliver in exchange therefor the Registered Note or Notes which
the Holder making the exchange shall be entitled to receive.
(b) All Registered Notes presented or surrendered for registration of
transfer, exchange or payment shall (if so required by the Issuers, the Trustee
or the Registrar) be duly endorsed or be accompanied by a written instrument or
instruments of transfer, in form satisfactory to the Issuers, the Trustee and
the Registrar, duly executed by the Registered Holder or his attorney duly
authorized in writing.
All Notes issued in exchange for or upon transfer of Notes shall be the
valid obligations of the Issuers, evidencing the same debt, and entitled to the
same benefits under this Indenture as the Notes surrendered for such exchange or
transfer.
No service charge shall be made for any exchange or registration of
transfer of Notes (except as provided by Section 2.7), but the Issuers may
require payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in relation thereto, other than those expressly
provided in this Indenture to be made at the Issuers' own expense or without
expense or without charge to the Holders.
The Issuers shall not be required (i) to issue, register the transfer
of or exchange any Notes for a period of 15 days next preceding any mailing of
notice of redemption of the Notes or (ii) to register the transfer of or
exchange any Notes selected, called or being called for redemption.
Prior to the due presentation for registration of transfer of any Note,
the Issuers, the Trustee, any Paying Agent or any Registrar may deem and treat
the Person in whose name a Note is registered as the absolute owner of such Note
for the purpose of receiving payment of principal of, and premium, if any, and
interest on, such Note and for all other purposes whatsoever, whether or not
such Note is overdue, and none of the Issuers, the Trustee, any Paying Agent or
Registrar shall be affected by notice to the contrary.
None of the Issuers, the Trustee, any agent of the Trustee, any Paying
Agent or any Registrar will have any responsibility or liability for any aspect
of the records relating to, or payments made on account of, beneficial ownership
interests of a Global Note or for maintaining, supervising or reviewing any
records relating to such beneficial ownership interests.
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SECTION 2.6 TEMPORARY NOTES. Pending the preparation of definitive
Notes, the Issuers may execute and the Trustee shall authenticate and deliver
temporary Notes (printed, lithographed, photocopied, typewritten or otherwise
produced) of any authorized denomination, and substantially in the form of the
definitive Notes in lieu of which they are issued, in registered form and with
such omissions, insertions and variations as may be appropriate for temporary
Notes, all as may be determined by the Issuers with the concurrence of the
Trustee. Temporary Notes may contain such reference to any provisions of this
Indenture as may be appropriate. Every temporary Note shall be executed by the
Issuers and be authenticated by the Trustee upon the same conditions and in
substantially the same manner, and with like effect, as the definitive Notes.
If temporary Notes are issued, the Issuers will cause definitive Notes
to be prepared without unreasonable delay. After the preparation of definitive
Notes, the temporary Notes shall be exchangeable for definitive Notes upon
surrender of the temporary Notes at the office or agency of the Issuers
designated for such purpose pursuant to Section 5.2 hereof, without charge to
the Holder thereof, except as provided in Section 2.5 in connection with a
transfer, and upon surrender for cancellation of any one or more temporary
Notes, the Issuers shall execute and the Trustee shall authenticate and deliver
in exchange therefor a like principal amount of definitive Notes of authorized
denominations and of like tenor. Until so exchanged, temporary Notes shall in
all respects be entitled to the same benefits under this Indenture as definitive
Notes.
Upon any exchange of a portion of a temporary Global Note for a
definitive Global Note or for the individual Notes represented thereby pursuant
to Section 2.5 or this Section 2.6, the temporary Global Note shall be endorsed
by the Trustee to reflect the reduction of the principal amount evidenced
thereby, whereupon the principal amount of such temporary Global Note shall be
reduced for all purposes by the amount so exchanged and endorsed.
SECTION 2.7 MUTILATED, DESTROYED, LOST OR STOLEN NOTES. If (i) any
mutilated Note is surrendered to the Trustee at its Corporate Trust Office (in
the case of Registered Notes) or (ii) the Issuers and the Trustee receive
evidence to their satisfaction of the destruction, loss or theft of any Note,
and there is delivered to the Issuers and the Trustee such security or indemnity
as may be required by them to save each of them and any Paying Agent harmless,
and neither the Issuers nor the Trustee receives notice that such Note has been
acquired by a bona fide purchaser, then the Issuers shall execute and, upon a
Company Order, the Trustee shall authenticate and deliver, in exchange for or in
lieu of any such mutilated, destroyed, lost or stolen Note, a new Note of like
tenor, form, terms and principal amount, bearing a number not contemporaneously
Outstanding. Upon the issuance of any substituted Note, the Issuers may require
the payment of a sum sufficient to cover any tax or other governmental charge
that may be imposed in relation thereto and any other expenses connected
therewith. In case any Note which has matured or is about to mature or which has
been called for redemption shall become mutilated or be destroyed, lost or
stolen, the Issuers may, instead of issuing a substituted Note, pay or authorize
the payment of the same (without surrender thereof except in the case of a
mutilated Note) if the applicant for such payment shall furnish the Issuers and
the Trustee
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with such security or indemnity as either may require to save it harmless from
all risk, however remote, and, in case of destruction, loss or theft, evidence
to the satisfaction of the Issuers and the Trustee of the destruction, loss or
theft of such Note and of the ownership thereof.
Every substituted Note issued pursuant to the provisions of this
Section 2.7 by virtue of the fact that any Note is destroyed, lost or stolen
shall constitute an original additional contractual obligation of the Issuers,
whether or not the destroyed, lost or stolen Note shall be found at any time,
and shall be entitled to all the benefits of this Indenture equally and
proportionately with any and all other Notes duly issued hereunder. All Notes
shall be held and owned upon the express condition that the foregoing provisions
are exclusive with respect to the replacement or payment of mutilated,
destroyed, lost or stolen Notes, and shall preclude any and all other rights or
remedies, notwithstanding any law or statute existing or hereafter enacted to
the contrary with respect to the replacement or payment of negotiable
instruments or other securities without their surrender.
SECTION 2.8 CANCELLATION OF SURRENDERED NOTES. All Notes surrendered
for payment, redemption, registration of transfer or exchange shall, if
surrendered to the Issuers or any Paying Agent or a Registrar, be delivered to
the Trustee for cancellation by it, or if surrendered to the Trustee, shall be
canceled by it, and no Notes shall be issued in lieu thereof except as expressly
permitted by any of the provisions of this Indenture. All canceled Notes held by
the Trustee shall be destroyed in accordance with its customary practices and
certification of their destruction delivered to the Issuers, unless otherwise
directed. On written request of the Issuers, the Trustee shall deliver to the
Issuers canceled Notes held by the Trustee. If the Issuers shall acquire any of
the Notes, however, such acquisition shall not operate as a redemption or
satisfaction of the indebtedness represented thereby unless and until the same
are delivered or surrendered to the Trustee for cancellation. The Issuers may
not issue new Notes to replace Notes it has redeemed, paid or delivered to the
Trustee for cancellation.
SECTION 2.9 PROVISIONS OF THE INDENTURE AND NOTES FOR THE SOLE BENEFIT
OF THE PARTIES AND THE HOLDERS. Nothing in this Indenture or in the Notes,
expressed or implied, shall give or be construed to give to any Person, other
than the parties hereto, the Holders or any Registrar or Paying Agent, any legal
or equitable right, remedy or claim under or in respect of this Indenture, or
under any covenant, condition or provision herein contained; all its covenants,
conditions and provisions being for the sole benefit of the parties hereto, the
Holders and any Registrar and Paying Agents.
SECTION 2.10 PAYMENT OF INTEREST; RIGHTS PRESERVED. (a) Interest on any
Registered Note that is payable and is punctually paid or duly provided for on
any Interest Payment Date shall be paid to the Person in whose name such
Registered Note is registered at the close of business on the regular record
date for such interest payment notwithstanding the cancellation of such
Registered Note upon any transfer or exchange subsequent to the regular record
date. Payment of interest on Registered Notes shall be made at the Corporate
Trust Office of the Trustee, or at the option of the Issuers, by check mailed to
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the address of the Person entitled thereto as such address shall appear in the
Note Register.
(b) Subject to the foregoing provisions of this Section 2.10 and
Section 2.14, each Note delivered under this Indenture upon registration of
transfer of or in exchange for or in lieu of any other Note shall carry the
rights to interest accrued and unpaid, and to accrue, which were carried by such
other Note.
SECTION 2.11 NOTES PAYABLE IN DOLLARS. Payment of the principal of, and
premium, if any, and interest on, the Notes will be made in U.S. dollars.
SECTION 2.12 WIRE TRANSFERS. Notwithstanding any other provision to the
contrary in this Indenture, the Issuers may make any payment of monies required
to be deposited with the Trustee or any Paying Agent on account of principal of,
or premium, if any, or interest on, the Notes (whether pursuant to optional or
mandatory redemption payments, interest payments or otherwise) by wire transfer
of immediately available funds to an account designated by the Trustee or such
Paying Agent on or before the date such moneys are to be paid to the Holders of
the Notes in accordance with the terms hereof.
SECTION 2.13 NOTES ISSUABLE IN THE FORM OF GLOBAL NOTES. (a) The Notes
initially will be issued in the form of a single Initial Note to be held and
disbursed by the Depositary Agent under the Depositary Agreement. Pursuant to
the Depositary Agreement, the Depositary Agent will from time to time disburse
to the persons entitled to Notes as provided in the Depositary Agreement and the
Plan of Reorganization. Following disbursement under the Depositary Agreement,
the Notes may be exchanged for one or more Global Notes. The Global Note (i)
shall be registered in the name of the Depository for such Global Note or its
nominee, (ii) shall be delivered to the Trustee or its agent as custodian for
such Depository and (iii) shall bear a legend substantially in the form of
Exhibit B.
(b) Notwithstanding any other provision of this Section 2.13 or of
Section 2.5 to the contrary, and subject to the provisions of paragraph (c)
below, a Global Note may be transferred, in whole but not in part and in the
manner provided in Section 2.5, only by the Depository to a nominee of the
Depository for such Global Note, or by a nominee of the Depository to the
Depository or another nominee of the Depository, or by the Depository or a
nominee of the Depository to a successor Depository for such Global Note
selected or approved by the Issuers, or to a nominee of such successor
Depository.
(c) (i) If at any time the Depository for a Global Note or Notes
notifies the Issuers that it is unwilling or unable to continue as Depository
for such Global Note or Notes or if at any time the Depository for the Notes
shall no longer be eligible or in good standing under the Exchange Act or other
applicable statute, rule or regulation, the Issuers shall appoint a successor
Depository with respect to such Global Note or Notes. If a successor Depository
for such Global Note or Notes is not appointed by the Issuers within 90 days
after the Issuers receive such notice or become aware of such ineligibility, the
Issuers shall execute, and the Trustee or its agent, upon receipt of a Company
Order
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for the authentication and delivery of such individual Notes in exchange for
such Global Note, will authenticate and deliver, individual Notes of like tenor
and terms in definitive form in an aggregate principal amount equal to the
principal amount of the Global Note in exchange for such Global Note or Notes.
(ii) The Issuers may at any time and in their sole discretion
determine that the Notes or portion thereof issued or issuable in the
form of one or more Global Notes shall no longer be represented by such
Global Note or Notes. In such event the Issuers will execute, and the
Trustee, upon receipt of a Company Order for the authentication and
delivery of individual Notes in exchange in whole or in part for such
Global Note, will authenticate and deliver individual Notes of like
tenor and terms in definitive form in an aggregate principal amount
equal to the principal amount of such Notes or portion thereof in
exchange for such Global Note or Notes.
(iii) In any exchange provided for in any of the preceding two
paragraphs, the Issuers will execute and the Trustee or its agent will
authenticate and deliver individual Notes. Upon the exchange of the
entire principal amount of a Global Note for individual Notes, such
Global Note shall be canceled by the Trustee or its agent. Except as
provided in the preceding paragraph, Registered Notes issued in
exchange for a Global Note pursuant to this Section 2.13 shall be
registered in such names and in such authorized denominations as the
Depository for such Global Note, pursuant to instructions from its
direct or indirect participants or otherwise, shall instruct the
Trustee or the Registrar in writing. The Trustee or the Registrar shall
deliver such Registered Notes to the Persons in whose names such
Registered Notes are so registered.
(iv) Payments in respect of the principal of and interest on
any Notes registered in the name of the Depository or its nominee will
be payable to the Depository or such nominee in its capacity as the
registered owner of such Global Note. Members of, or direct or indirect
participants in, the Depository ("AGENT MEMBERS") shall have no rights
under this Indenture with respect to the Global Note held on their
behalf by the Depository, or the Trustee as its custodian, or under
such Global Note. The Issuers and the Trustee may treat the Person in
whose name the Notes, including the Global Note, are registered as the
owner thereof for the purpose of receiving such payments and for any
and all other purposes whatsoever. None of the Issuers, the Trustee,
any Registrar, any Paying Agent or any agent of the Issuers or the
Trustee will have any responsibility or liability for (x) any aspect of
the records relating to or payments made on account of the beneficial
ownership interests of the Global Note by the Depository or its nominee
or any of the Depository's Agent Members, or for maintaining,
supervising or reviewing any records of the Depository, its nominee or
any of its Agent Members relating to the beneficial ownership interests
of the Global Note, (y) the payments to the beneficial owners of the
Global Note of amounts paid to the Depository or its nominee, or (z)
any other matter relating to the actions and practices of the
Depository, its nominee or any of its Agent Members. None of the
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Issuers, the Trustee, any Registrar, any Paying Agent or any agent of
the Issuers or the Trustee will be liable for any delay by the
Depository, its nominee, or any of its Agent Members in identifying the
beneficial owners of the Notes, and the Issuers and the Trustee may
conclusively rely on, and will be fully protected in relying on,
instructions from the Depository or its nominee for all purposes
(including with respect to the registration and delivery, and the
respective principal amounts, the Notes to be issued).
Notwithstanding the foregoing, nothing herein shall prevent the
Issuers, the Subsidiary Guarantors or the Trustee from giving effect to any
written certification, proxy or other authorization furnished by the Depository
or shall impair, as between the Depository and its Agent Members, the operation
of customary practices governing the exercise of the rights of a holder of any
Note.
SECTION 2.14 DEFAULTED INTEREST. Any interest on any Notes which is
payable, but is not punctually paid or duly provided for, on the dates and in
the manner provided in the Notes and in this Indenture (herein called "DEFAULTED
INTEREST") shall forthwith cease to be payable to the Registered Holder thereof
on the relevant record date by virtue of having been such Registered Holder, and
such Defaulted Interest may be paid by the Issuers, at their election in each
case, as provided in paragraph (a) or (b) below:
(a) The Issuers may elect to make payment of any Defaulted Interest to
the Persons in whose names the Registered Notes are registered at the close of
business on a special record date for the payment of such Defaulted Interest,
which shall be fixed in the following manner: The Issuers shall notify the
Trustee in writing of the amount of Defaulted Interest proposed to be paid on
each such Registered Note and the date of the proposed payment, and at the same
time the Issuers shall deposit with the Trustee or any Paying Agent (other than
an Issuer) an amount of money equal to the aggregate amount proposed to be paid
in respect of such Defaulted Interest or shall make arrangements satisfactory to
the Trustee for such deposit prior to the date of the proposed payment, such
money when deposited to be held in trust for the benefit of the Persons entitled
to such Defaulted Interest as in this paragraph provided. Thereupon the Trustee
shall fix a special record date for the payment of such Defaulted Interest which
shall be not more than 15 days and not less than 10 days prior to the date of
the proposed payment and not less than 10 days after the receipt by the Trustee
of the notice of the proposed payment. The Trustee shall promptly notify the
Issuers of such special record date and, in the name and at the expense of the
Issuers, shall cause notice of the proposed payment of such Defaulted Interest
and the special record date therefor to be mailed, first class postage prepaid,
to each Holder thereof at its address as it appears in the Note Register, not
less than 10 days prior to such special record date. Notice of the proposed
payment of such Defaulted Interest and the special record date therefor having
been so mailed, such Defaulted interest shall be paid to the Persons in whose
names the Registered Notes are registered at the close of business on such
special record date.
(b) The Issuers may make payment of any Defaulted Interest on the
Registered Notes in any other lawful manner not inconsistent with the
requirements of any securities
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exchange on which the Registered Notes may be listed, and upon such notice as
may be required by such exchange, if, after notice given by the Issuers to the
Trustee of the proposed payment pursuant to this paragraph, such manner of
payment shall be deemed practicable by the Trustee.
SECTION 2.15 LEGEND.
(a) All Transfer Restricted Notes shall bear the Legend upon
the original issuance thereof. Upon the transfer, exchange or
replacement of Notes bearing the Legend, the Registrar shall deliver
only Notes that bear the Legend unless, and the Trustee is hereby
authorized to deliver Notes without the Legend if, (i) there is
delivered to the Trustee an Opinion of Counsel to the effect that
neither such legend nor the related restrictions on transfer are
required in order to maintain compliance with the provisions of the
Securities Act or (ii) such Note has been sold pursuant to an effective
registration statement under the Securities Act. Upon the transfer,
exchange or replacement of Notes not bearing the Legend, the Registrar
shall deliver Notes that do not bear the Legend.
(b) Notwithstanding the provisions of the preceding paragraph
of this Section 2.15, the Legend on any Transfer Restricted Note shall
be removed upon the written request of the Holder thereof upon delivery
of such Note to the Registrar for exchange at any time after the Resale
Restriction Termination Date.
(c) By its acceptance of any Note bearing the Legend, each
Holder of such a Note acknowledges the restrictions on transfer of such
Note set forth in this Indenture and in the Legend and agrees that it
will transfer such Note only as provided in this Indenture.
ARTICLE III.
REDEMPTION AND PREPAYMENT
SECTION 3.1 OPTIONAL REDEMPTION. The Notes shall not be subject to
optional redemption by the Issuers.
SECTION 3.2 MANDATORY REDEMPTION. Except as set forth in Section 5.14
and 5.19 hereof, the Issuers shall not be required to make mandatory redemption
or sinking fund payments with respect to the Notes.
SECTION 3.3 OFFER TO PURCHASE BY APPLICATION OF EXCESS PROCEEDS. In the
event that, pursuant to Section 5.14 hereof, the Issuers shall be required to
commence an Asset Sale Offer to all Holders to purchase Notes, the Issuers shall
follow the procedures specified below.
The Asset Sale Offer shall remain open for a period of 20 business days
following its commencement and no longer, except to the extent that a longer
period is required by
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applicable law (the "OFFER PERIOD"). No later than five business days after the
termination of the Offer period ( the "PURCHASE DATE"), the Issuers shall
purchase the principal amount of Notes required to be purchased pursuant to
Section 5.14 hereof ( the "OFFER AMOUNT") or, if less than the Offer Amount has
been tendered, all Notes tendered in response to the Asset Sale Offer. Payment
for any Notes so purchased shall be made in the same manner as interest payments
are made.
If the Purchase Date is on or after an interest record date and on or
before the related Interest Payment Date, any accrued and unpaid interest shall
be paid to the Person in whose name a Note is registered at the close of
business on such record date, and no additional interest shall be payable to
Holders who tender Notes pursuant to the Asset Sale Offer.
Upon the commencement of an Asset Sale Offer, the Issuers shall send,
by first class mail, a notice to the Trustee and each of the Holders. The notice
shall contain all instructions and material necessary to enable such Holders to
tender Notes pursuant to the Asset Sale Offer. The Asset Sale Offer shall be
made to all Holders. The notice, which shall govern the terms of the Asset Sale
Offer shall state:
(a) that the Asset Sale Offer is being made pursuant to this
Section 3.3 and Section 5.14 hereof and the length of time the Asset
Sale Offer shall remain open;
(b) the Offer Amount, the purchase price and the Purchase
Date;
(c) that any Note not tendered or accepted for payment shall
continue to accrete or accrue interest;
(d) that, unless the Issuers default in making such payment,
any Note accepted for payment pursuant to the Asset Sale Offer shall
cease to accrue interest after the Purchase Date;
(e) that Holders electing to have a Note purchased pursuant to
an Asset Sale Offer may only elect to have all of such Note purchased
and may not elect to have only a portion of such Note purchased;
(f) that Holders electing to have a Note purchased pursuant to
any Asset Sale Offer shall be required to surrender the note, with the
form entitled "Option of Holder to Elect Purchase" on the reverse of
the Note completed, or transfer by book-entry transfer, to the Issuers,
a Depository, if appointed by the Issuers, or a Paying Agent at the
address specified in the notice at least three days before the Purchase
Date;
(g) that Holders shall be entitled to withdraw their election
if the Issuers, the Depository or any Paying Agent, as the case may be,
receive, not later than the expiration of the Offer Period, a telegram,
telex, facsimile transmission or
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letter setting forth the name of the Holder, the principal amount of
the Note the Holder delivered for purchase and a statement that such
Holder is withdrawing his election to have such Note purchased;
(h) that, if the aggregate principal amount of Notes
surrendered by Holders exceeds the Offer Amount, the Trustee shall
select the Notes to be purchased on a pro rata basis (with such
adjustments as may be deemed appropriate by the Issuers so that only
Notes in denominations of $1.00, or integral multiples thereof, shall
be purchased); and
(i) that Holders whose Notes were purchased only in part shall
be issued new Notes equal in principal amount to the unpurchased
portion of the Notes surrendered (or transferred by book-entry
transfer).
On or before the Purchase Date, the Issuers shall, to the extent
lawful, accept for payment, on a pro rata basis to the extent necessary, the
Offer Amount of Notes or portions thereof tendered pursuant to the Asset Sale
Offer, or if less than the Offer Amount has been tendered, all Notes tendered,
and shall deliver to the Trustee an Officers' Certificate stating that such
Notes or portions thereof were accepted for payment by the Issuers in accordance
with the terms of this Section 3.3. The Issuers, the Depository or any Paying
Agent, as the case may be, shall promptly (but in any case not later than five
days after the Purchase Date) mail or deliver to each tendering Holder an amount
equal to the purchase price of the Notes tendered by such Holder and accepted by
the Issuers for purchase, and the Issuers shall promptly issue a new Note, and
the Trustee, upon receipt of a Company Order shall authenticate and mail or
deliver such new Note to such Holder, in a principal amount equal to any
unpurchased portion of the Note surrendered. Any Note not so accepted shall be
promptly mailed or delivered by the Issuers to the Holder thereof. The Issuers
shall publicly announce the results of the Asset Sale Offer on the Purchase
Date.
Notwithstanding the foregoing, if the Notes are held as a Global Note
by the Depository Trust Company or a nominee thereof, and the Notes are eligible
for purchase pursuant to the Automated Tender Offer Program ("ATOP"), the
Issuers may comply with the ATOP procedures rather than the procedures set forth
above. In addition, the Issuers shall comply with applicable laws, including
Section 14(e) of the Exchange Act.
ARTICLE IV.
SUCCESSORS
SECTION 4.1 MERGER, CONSOLIDATION, OR SALE OF ASSETS. (a) Neither of
the Issuers shall, directly or indirectly, consolidate or merge with or into
another Person (whether or not such Issuer is the survivor) or sell, assign,
transfer, lease, convey or otherwise dispose of all or substantially all of its
properties or assets, in one or more related transactions, to another Person
unless: (i) either (A) such Issuer is the surviving entity of such transaction;
or (B) the Person formed by or surviving any such consolidation or merger (if
other than such Issuer) or to which such sale, assignment, transfer, lease,
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conveyance or other disposition shall have been made (the "SUCCESSOR COMPANY")
is an entity organized or existing under the laws of the United States, any
state thereof or the District of Columbia, provided that EOTT Finance may not
consolidate or merge with or into any entity other than a corporation satisfying
such requirement for so long as the Company remains a limited liability company;
(ii) the Person formed by or surviving any such consolidation or merger (if
other than such Issuer) or the Person to which such sale, assignment, transfer,
lease, conveyance or other disposition shall have been made assumes all the
obligations of such Issuer under the Notes and this Indenture pursuant to
supplemental indentures in forms reasonably satisfactory to the Trustee; (iii)
immediately after giving pro forma effect to such transaction, no Default or
Event of Default exists; (iv) immediately after giving pro forma effect to such
transaction, such Issuer or the Person formed by or surviving any such
consolidation or merger (if other than such Issuer), except in the case of such
a transaction involving EOTT Finance, will, on the date of such transaction
after giving pro forma effect thereto and any related financing transactions as
if such transaction had occurred at the beginning of the applicable four-quarter
period, be permitted to Incur at least $1.00 of additional Indebtedness pursuant
to the Fixed Charge Coverage Ratio test set forth in the first paragraph of
Section 5.12 hereof; and (v) such Issuer has delivered to the Trustee an
Officers' Certificate and an Opinion of Counsel, each stating that such
consolidation, merger or transfer and, if a supplemental indenture is required,
such supplemental indenture complies with this Indenture and all conditions
precedent therein relating to such transaction has been satisfied.
(b) Notwithstanding the foregoing paragraph, the Company is permitted
to reorganize as any other form of entity in accordance with the procedures
established in this Indenture; provided that (i) the reorganization involves the
conversion (by merger, sale, contribution or exchange of assets or otherwise) of
the Company into a form of entity other than a limited liability company formed
under Delaware law; (ii) the entity so formed by or resulting from such
reorganization is an entity organized or existing under the law of the United
States, any state thereof or the District of Columbia; (iii) the entity so
formed by or resulting from such reorganization assumes all the obligations of
the Company under the Notes and this Indenture pursuant to supplemental
indentures in forms reasonably satisfactory to the Trustee; (iv) immediately
after such reorganization no Default or Event of Default exists; (v) such
reorganization is not materially adverse to the Holders of the Notes (for
purposes of this clause (v) a reorganization shall not be considered materially
adverse to the Holders of the Notes (A) solely because the successor or survivor
of such reorganization (x) is subject to federal or state income taxation as an
entity or (y) is considered to be an "includible corporation" of an affiliated
group of corporations within the meaning of Section 1504(b)(i) of the Code or
any similar state or local law or (B) because there is a Rating Decline due
solely to factors other than the reorganization); and (vi) such issuer has
delivered to the Trustee an Officers' Certificate and an Opinion of Counsel,
each stating that such reorganization and, if a supplemental indenture is
required, such supplemental indenture complies with this Indenture and all
conditions precedent therein relating to such transaction have been satisfied.
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(c) The provisions of Section 4.1 will not apply to a merger or
consolidation, or any sale, assignment, transfer, lease, conveyance or other
disposition of assets, between or among the Company and any of its Wholly-Owned
Restricted Subsidiaries.
(d) No Subsidiary Guarantor shall consolidate with or merge with or
into (whether or not such Subsidiary Guarantor is the surviving Person) another
Person, whether or not affiliated with such Subsidiary Guarantor, other than the
Company or a Wholly-Owned Restricted Subsidiary, unless (i) subject to the
provisions of Section 4.1(e), the Person formed by or surviving any such
consolidation or merger (if other than such Subsidiary Guarantor) shall be an
entity organized or existing under the laws of the United States, any state
thereof or the District of Columbia or the laws of the jurisdiction under which
such Subsidiary Guarantor was organized and assumes all the obligations of such
Subsidiary Guarantor pursuant to the Subsidiary Guarantor's Subsidiary Guarantee
of the Notes and this Indenture pursuant to a supplemental indenture in form
reasonably satisfactory to the Trustee, (ii) immediately after giving effect to
such transaction, no Default or Event of Default exists and (iii) the Company
has delivered to the Trustee an Officers' Certificate and an Opinion of Counsel,
each stating such consolidation or merger and, if a supplemental indenture is
required, such supplemental indenture complies with this Indenture and all
conditions precedent therein relating to such transaction have been satisfied.
(e) In the event of a sale or other disposition of all the assets of
any Subsidiary Guarantor, by way of merger, consolidation or otherwise, or a
sale or other disposition of all the Equity Interests of any Subsidiary
Guarantor, then such Subsidiary Guarantor (in the event of a sale or other
disposition, by way of such a merger, consolidation or otherwise, of all of the
Equity Interests of such Subsidiary Guarantor) or the Person acquiring the
property (in the event of a sale or other disposition of all the assets of such
Subsidiary Guarantor) will be released and relieved of any obligations under its
Subsidiary Guarantee; provided that the transaction complies with the provisions
of Section 5.14 hereof.
SECTION 4.2 SUCCESSOR CORPORATION SUBSTITUTED. Upon any consolidation
or merger, or any sale, assignment, transfer, lease, conveyance or other
disposition of all or substantially all of the assets of an Issuer or a
Subsidiary Guarantor in accordance with Section 4.1 hereof, the Person formed by
or surviving any such consolidation or merger of an Issuer or a Subsidiary
Guarantor (if other than such Issuer or Subsidiary Guarantor, as the case may
be) or to which any such sale, assignment, transfer, lease, conveyance or other
disposition shall have been made, will succeed to, and be substituted for, and
may exercise every right and power of such Issuer under this Indenture (or of
such Subsidiary Guarantor under the Subsidiary Guarantee, as the case may be),
but the predecessor company in the case of: (a) a sale, assignment, transfer,
conveyance or other disposition (unless such sale, assignment, transfer,
conveyance or other disposition is of all the assets of the Issuer (or the
Subsidiary Guarantor, as the case may be) as an entirety), or (b) a lease, will
not be released from any of the obligations or covenants under this Indenture
(or the Subsidiary Guarantee, as the case may be), including with respect to the
payment of the Notes.
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ARTICLE V.
COVENANTS
SECTION 5.1 PAYMENT OF PRINCIPAL OF, AND PREMIUM, IF ANY, AND INTEREST
ON, THE NOTES. The Issuers, for the benefit of the Holders of Notes, will duly
and punctually pay or cause to be paid the principal of, and premium, if any,
and interest on, each Note at the place, at the respective times and in the
manner provided herein and in the Notes. Each installment of interest on the
Notes may at the Issuers' option be paid by mailing checks for such interest
payable to the Person entitled thereto to the address of such Person as it
appears on the Note Register maintained pursuant to Section 2.5(a).
Principal, premium and interest of Notes shall be considered paid on
the date due if on such date the Trustee or any Paying Agent holds in accordance
with this Indenture money sufficient to pay all principal, premium and interest
then due.
The Issuers shall pay interest on overdue principal at the rate
specified therefore in the Notes and they shall pay interest on overdue
installments of interest at the same rate to the extent lawful.
SECTION 5.2 MAINTENANCE OF OFFICES OR AGENCIES FOR REGISTRATION OF
TRANSFER, EXCHANGE AND PAYMENT OF THE NOTES. The Issuers will maintain an office
or agency where the Notes may be presented or surrendered for payment, where the
Notes may be surrendered for transfer or exchange and where notices and demands
to or upon the Issuers in respect of the Notes and this Indenture may be served.
The Issuers will 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 Issuers
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, and the Issuers hereby appoint the Trustee as their agent to receive
all presentations, surrenders, notices and demands.
The Issuers may also from time to time designate different or
additional offices or agencies to be maintained for such purposes, and may from
time to time rescind any such designation; provided, however, that no such
designation or rescission shall in any manner relieve the Issuers of their
obligations described in the preceding paragraph. Further, if at any time there
shall be no such office or agency in The City of
New York where the Notes may be
presented or surrendered for payment, the Company shall forthwith designate and
maintain such an office or agency in The City of New York, in order that the
Notes shall at all times be payable in The City of New York. (The office of the
Trustee, located at ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, is hereby
designated as such agency). The Issuers will give prompt written notice to the
Trustee of any such additional designation or rescission of designation and any
change in the location of any such different or additional office or agency.
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SECTION 5.3 APPOINTMENT TO FILL A VACANCY IN THE OFFICE OF TRUSTEE. The
Issuers, whenever necessary to avoid or fill a vacancy in the office of Trustee,
will appoint, in the manner provided in Section 8.8, a Trustee, so that there
shall at all times be a Trustee hereunder with respect to the Notes.
SECTION 5.4 DUTIES OF PAYING AGENTS, ETC. (a) The Issuers may from time
to time appoint one or more Persons to act as Paying Agent hereunder. The
Issuers shall cause each Paying Agent, if any, other than the Trustee, to
execute and deliver to the Trustee an instrument in which such agent shall agree
with the Trustee, subject to the provisions of this Section 5.4,
(i) that it will hold all sums held by it as such agent for
the payment of the principal of, and premium, if any, or interest on,
the Notes (whether such sums have been paid to it by the Issuers or by
any other obligor on the Note) in trust for the benefit of the Holders
of the Notes;
(ii) that it will give the Trustee notice of any failure by
the Issuers (or by any other obligor on the Notes) to make payment of
the principal of and premium, if any, or interest on, the Notes when
the same shall be due and payable; and
(iii) that it will at any time during the continuance of an
Event of Default, upon the written request of the Trustee, forthwith
pay to the Trustee all sums so held by it as Paying Agent.
(b) If either of the Issuers shall act as its own Paying Agent, it
will, on or before each due date of the principal of, and premium, if any, or
interest on, the Notes, set aside, segregate and hold in trust for the benefit
of the Holders of the Notes a sum sufficient to pay such principal, premium, if
any, or interest so becoming due. The Issuers will promptly notify the Trustee
of any failure by the Issuers to take such action or the failure by any other
obligor on such Notes to make any payment of the principal of, and premium, if
any, or interest on, such Notes when the same shall be due and payable.
(c) Anything in this Section 5.4 to the contrary notwithstanding,
either of the Issuers may, at any time, for the purpose of obtaining a
satisfaction and discharge of this Indenture, or for any other reason, pay or
cause to be paid to the Trustee all sums held in trust by it or any Paying
Agent, as required by this Section 5.4, such sums to be held by the Trustee upon
the same terms as those upon which such sums were held by the Issuers or such
Paying Agent.
(d) Whenever the Issuers shall have one or more Paying Agents with
respect to the Notes, they will, prior to each due date of the principal of, and
premium, if any, or interest on, any Notes, deposit with any such Paying Agent a
sum sufficient to pay the principal, premium or interest so becoming due, such
sum to be held in trust for the benefit of the Persons entitled thereto, and
(unless any such Paying Agent is the Trustee) the Issuers will promptly notify
the Trustee of their action or failure so to act.
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(e) Anything in this Section 5.4 to the contrary notwithstanding, the
agreement to hold sums in trust as provided in this Section 5.4 is subject to
the provisions of Section 11.6.
SECTION 5.5 FURTHER INSTRUMENTS AND ACTS. The Issuers will, upon the
request of the Trustee, execute and deliver such further instruments and do such
further acts as may reasonably be necessary or proper to carry out the purposes
of this Indenture.
SECTION 5.6 MAINTENANCE OF PROPERTIES. The Company shall cause all
material properties owned by the Company or any of its Subsidiaries or used or
held for use in the conduct of its business or the business of any of its
Subsidiaries to be maintained and kept in good condition, repair and working
order (ordinary wear and tear excepted) and supplied with all necessary
equipment and will cause to be made all necessary repairs, renewals,
replacements, betterments and improvements thereof, all as in the reasonable
judgment of the Company may be consistent with sound business practice and
necessary so that the business carried on in connection therewith may be
properly conducted at all times; provided, however, that nothing in this Section
shall prevent the Company from discontinuing the maintenance of any of such
properties if such discontinuance is, in the reasonable judgment of the Company,
desirable in the conduct of its business or the business of any of its
Subsidiaries and not reasonably expected to have a material adverse effect on
the ability of the Issuers to perform their obligations hereunder.
SECTION 5.7 PAYMENT OF TAXES AND OTHER CLAIMS. The Company shall pay or
discharge or cause to be paid or discharged, on or before the date the same
shall become due and payable, (i) all taxes, assessments and governmental
charges levied or imposed upon the Company or any of its Subsidiaries or
otherwise assessed or upon the income, profits or property of the Company or any
of its Subsidiaries, if failure to pay or discharge the same could reasonably be
expected to have a material adverse effect on the ability of the Issuers to
perform their obligations hereunder and (ii) all lawful claims for labor,
materials and supplies, which, if unpaid, would by law become a Lien upon the
property of the Company or any of its Subsidiaries, except for any Lien
permitted to be incurred under the terms of this Indenture, if failure to pay or
discharge the same could reasonably be expected to have a material adverse
effect on the ability of the Issuers to perform their obligations hereunder;
provided, however, that the Company shall not be required to pay or discharge or
cause to be paid or discharged any such tax, assessment, charge or claim whose
amount, applicability or validity is being contested in good faith by
appropriate proceedings properly instituted and diligently conducted and in
respect of which appropriate reserves (in the good faith judgment of management
of the Company) are being maintained in accordance with GAAP.
SECTION 5.8 CORPORATE OR COMPANY EXISTENCE. Subject to Article IV
hereof, the Company shall do or cause to be done all things necessary to
preserve and keep in full force and effect (i) its limited liability company
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
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franchises of the Company and its Subsidiaries; provided, however, that the
Company shall not be required to preserve any such right, license or franchise,
or the corporate, partnership or other existence of any of its Subsidiaries, if
the Board of Directors shall determine that the preservation thereof is no
longer desirable in the conduct of the business of the Company and its
Subsidiaries, taken as a whole, and that the loss thereof is not adverse in any
material respect to the Holders of the Notes.
SECTION 5.9 COMPLIANCE CERTIFICATE. The Issuers shall deliver to the
Trustee, within 90 days after the end of each fiscal year, an Officers'
Certificate stating that a review of the activities of the Company and its
Subsidiaries during the preceding fiscal year has been made under the
supervision of the signing officers with a view to determining whether the
Issuers have kept, observed, performed and fulfilled their obligations under
this Indenture, and further stating, as to each such officer signing such
certificate, that to the best of his or her knowledge the Issuers have kept,
observed, performed and fulfilled each and every covenant contained in this
Indenture and are not in Default in the performance or observance of any of the
terms, provisions and conditions of this Indenture (or, if a Default or Event of
Default shall have occurred, describing all such Defaults or Events of Default
of which he or she may have knowledge and what action the Issuers are taking or
propose 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 Issuers are taking or propose 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 reports delivered
pursuant to Section 6.3(a) shall be accompanied by a written statement of the
Issuers' independent public accountants (who shall be a firm of established
national reputation) that in connection with the audit for certification of the
financial statements contained in such reports, nothing has come to their
attention that would lead them to believe that the Issuers have failed to comply
with provisions of this Article V or Article IV or Section 6.3 hereof insofar as
the provisions relate to accounting matters 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 Issuers shall, so long as any of the Notes are outstanding,
deliver to the Trustee, forthwith and in any event within five days upon any
Officer becoming aware of any Default or Event of Default or an event which,
with notice or the lapse of time or both, would constitute an Event of Default,
an Officers' Certificate specifying such Default or Event of Default and what
action the Issuers are taking or propose to take with respect thereto.
SECTION 5.10 STAY, EXTENSION AND USURY LAWS. Each of the Issuers
covenant (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
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law wherever enacted, now or at any time hereafter in force, that may affect the
covenants or the performance of this Indenture; and each of the Issuers hereby
expressly waives all benefit or advantage of any such law, and covenants that it
shall not, by resort to any such law, hinder, delay or impede the execution of
any power herein granted to the Trustee, but shall suffer and permit the
execution of every such power as though no such law has been enacted.
SECTION 5.11 RESTRICTED PAYMENTS. (a) The Issuers will not, and will
not permit any of their Restricted Subsidiaries to, directly or indirectly; (i)
declare or pay any dividend or make any other payment or distribution on account
of the Company's or any Restricted Subsidiary's Equity Interests (including,
without limitation, any payment in connection with any merger or consolidation
involving the Company or any Restricted Subsidiary) or to the direct or indirect
holders of the Company's or any Restricted Subsidiary's Equity Interests in
their capacity as such (other than distributions or dividends payable in Equity
Interests (other than Disqualified Equity) of the Company and other than
distributions or dividends payable to the Company or to a Wholly-Owned
Restricted Subsidiary); (ii) purchase, redeem or otherwise acquire or retire for
value (including, without limitation, in connection with any merger or
consolidation involving the Company or EOTT Finance) any Equity Interests of the
Company or any of its Restricted Subsidiaries or any Affiliate of the Company
(other than any such Equity Interests owned by the Company or by any of its
Wholly-Owned Restricted Subsidiaries); (iii) make any payment on or with respect
to, or purchase, redeem, defease or otherwise acquire or retire for value, any
Indebtedness that is subordinated to the Notes or the Subsidiary Guarantees,
except (A) a payment of principal at the Stated Maturity thereof and (B) any
such Indebtedness of the Company or a Restricted Subsidiary, which Indebtedness
is owned by the Company or a Wholly-Owned Restricted Subsidiary; or (iv) make
any Investment other than a Permitted Investment (all such payments and other
actions set forth in the clauses above being collectively referred to as
"RESTRICTED PAYMENTS"), unless, at the time of and after giving effect to such
Restricted Payment, (I) no Default shall have occurred and be continuing or
would occur as a consequence thereof, (II) the Fixed Charge Coverage Ratio for
the Company's four most recent fiscal quarters for which internal financial
statements are available is at least 2.25 to 1.0, and (III) such Restricted
Payment, together with the aggregate amount of all other Restricted Payments
declared or made by the Company and its Restricted Subsidiaries after the date
of this Indenture, is less than or equal to the sum, without duplication, of (a)
the Consolidated Distributable Cash Flow of the Company accrued on a cumulative
basis during the period beginning on January 1, 2003 and ending on the last day
of the Company's last fiscal quarter ending prior to the date of such proposed
Restricted Payment (or, if such aggregate Consolidated Distributable Cash Flow
shall be a negative, minus such amount) and (b) the aggregate net cash proceeds
of any (i) capital contribution to the Company from any Person (other than a
Restricted Subsidiary of the Company) made after the Issue Date, (ii) issuance
and sale made after the Issue Date of Equity Interests (other than Disqualified
Equity) of the Company, (iii) issuance or sale made after the Issue Date of
convertible or exchangeable Disqualified Equity or convertible or exchangeable
debt securities of the Company that have been converted into or exchanged for
such Equity Interest substantially concurrently with a Restricted Payment from
such proceeds and
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(iv) to the extent that any Restricted Investment that was made after the Issue
Date is sold for cash or Cash Equivalents or otherwise liquidated or repaid for
cash or Cash Equivalents, the lesser of the refund or return of capital or
similar payment made in cash or Cash Equivalents with respect to such Restricted
Investment (less the cost of such disposition, if any) and the initial amount of
such Restricted Investment (other than to a Restricted Subsidiary of the
Company), to the extent that, in the case of clause (b)(iv), such amounts have
not been included in (or have been fully reserved in calculating) Consolidated
Net Income for any period commencing on or after the Issue Date (clauses (b)
being referred to as "INCREMENTAL FUNDS"), less (c) the aggregate amount
calculated pursuant to clause (a) and of Incremental Funds previously expended
pursuant to this clause.
(b) so long as no Default has occurred and is continuing or would be
caused thereby, Section 5.11(a) hereof will not prohibit:
(i) the payment by the Company or any Restricted Subsidiary of
any distribution or dividend within 60 days after the declaration
thereof, if at said date of declaration such payment would have
complied with the provisions of this Indenture;
(ii) the redemption, repurchase, retirement, defeasance or
other acquisition of any Indebtedness of the Company that is
subordinated to the Notes or any Equity Interests of the Company in
exchange for, or out of the net cash proceeds of, a substantially
concurrent (A) capital contribution to the Company or such Restricted
Subsidiary from any Person (other than the Company or another
Restricted Subsidiary) or (B) sale (other than to a Restricted
Subsidiary of the Company) of Equity Interests (other than Disqualified
Equity) of the Company; provided, however, that the amount of any net
cash proceeds that are utilized for any such redemption, repurchase or
other acquisition or retirement shall be excluded or deducted from (or
reserved in calculating) the calculation of Incremental Funds;
(iii) The defeasance, redemption, repurchase or other
acquisition of Indebtedness of the Company that is subordinated to the
Notes with the net cash proceeds from an Incurrence of Permitted
Refinancing Indebtedness;
(iv) the payment of any distribution or dividend by a
Restricted Subsidiary to the Company or to the holders of such
Restricted Subsidiary's Equity Interest (other than Disqualified
Equity) so long as the Company or any Restricted Subsidiary holding
such Equity Interest receives its pro rata share of such dividend or
distribution in accordance with its Equity Interests; or
(v) the purchase, redemption or other acquisition or
retirement for value of any Equity Interests of the Company or any
Restricted Subsidiary of the Company held by any member of the
Company's or any Restricted Subsidiary's management pursuant to any
management equity subscription agreement or stock
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option agreement or to satisfy obligations under any Equity Interests
appreciation rights or option plan or similar arrangement; provided
that the aggregate price paid for all such repurchased, redeemed,
acquired or retired Equity Interests shall not exceed $2.0 million in
any 12-month period without the consent of the holders of a majority
principal amount of the Outstanding Notes.
(c) In computing the amount of Restricted Payments previously made for
purposes of Section 5.11(b) hereof, Restricted Payments made under clauses (i)
(but only if the declaration of such dividend or other distribution has not been
counted in a prior period) and, to the extent of amounts paid to holders other
than the Company or a Restricted Subsidiary, (iv) and (v) shall be included, and
Restricted Payments made under clauses (ii) and (iii) and, except to the extent
noted above, (iv) shall not be included. The amount of all Restricted Payments
(other than cash) shall be the fair market value on the date of the Restricted
Payment of the asset(s) or securities proposed to be transferred or issued by
the Company or such Restricted Subsidiary, as the case may be, pursuant to the
Restricted Payment. The fair market value of any assets or securities that are
required to be valued by this Section 5.11 shall be determined by the Board of
Directors whose Board Resolution with respect thereto shall be delivered to the
Trustee; provided, however, that the fair market value of any assets or
securities that are required to be valued by this Section 5.11 involving
aggregate consideration in excess of $10.0 million shall be determined by a
written appraisal from a nationally recognized appraiser showing the assets have
a fair market value not less than the consideration to be paid (provided that if
the fair market value determined by such appraiser is a range of values or
otherwise inexact, the Board of Directors shall determine the exact fair market
value, provided that it shall be within the range so determined by the
appraiser). For the purpose of Sections 5.11(a) and (b) hereof, one transaction
is "substantially concurrent" with another transaction if the first transaction
occurred on or after the 270th day immediately preceding the last day of the
fiscal quarter in which the second transaction occurs.
SECTION 5.12 INCURRENCE OF INDEBTEDNESS AND ISSUANCE OF DISQUALIFIED
EQUITY. The Company will not, and will not permit any of its Restricted
Subsidiaries to, Incur any Indebtedness (including Acquired Debt), and the
Company will not issue any Disqualified Equity and will not permit any of its
Restricted Subsidiaries to issue any Disqualified Equity; provided, however,
that the Company or any Restricted Subsidiary may Incur Indebtedness (including
Acquired Debt), and the Company or any Restricted Subsidiaries may issue
Disqualified Equity, if the Fixed Charge Coverage Ratio for the Company's four
most recent fiscal quarters for which internal financial statements are
available immediately preceding the date on which such additional Indebtedness
is Incurred or such Disqualified Equity is issued would have been at least 2.25
to 1.0 determined on a pro forma basis (including a pro forma application of the
net proceeds therefrom), as if the additional Indebtedness had been Incurred, or
the Disqualified Equity had been issued, as the case may be, at the beginning of
such four-quarter period.
So long as no Default shall have occurred and be continuing or would be
caused thereby, the first paragraph of this Section 5.12 will not prohibit the
Incurrence of any of the following items of Indebtedness (collectively,
"PERMITTED DEBT"):
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(1) the Incurrence by the Company and any Restricted
Subsidiary of additional Indebtedness under Credit Facilities and the
guarantees thereof; provided that the aggregate principal amount of all
Indebtedness of the Company and the Restricted Subsidiaries Incurred
under this clause outstanding under all Credit Facilities after giving
effect to such Incurrence does not exceed the greater of (a) $600
million less the aggregate amount of all repayments of Indebtedness
under Credit Facilities that have been made by the Company and its
Restricted Subsidiaries in respect of Asset Sales to the extent such
repayments constitute a permanent reduction of commitments under such
Credit Facilities and (b) the Consolidated Borrowing Base Amount;
(2) the Incurrence by the Company and its Restricted
Subsidiaries of Existing Indebtedness;
(3) the Incurrence by the Company of $104.0 million in
aggregate principal amount of Indebtedness represented by the Notes
(plus up to $10,660,000 in aggregate principal amount of PIK Notes),
and the Subsidiary Guarantees thereof by the Subsidiary Guarantors;
(4) the Incurrence by the Company or any of its Restricted
Subsidiaries of Permitted Refinancing Indebtedness in exchange for, or
the net proceeds of which are used to refund, refinance or replace,
Indebtedness (other than intercompany Indebtedness) Incurred pursuant
to the first paragraph of this Section 5.12 and clauses (1) and (2)
above;
(5) Indebtedness owed to and held by the Company or a
Restricted Subsidiary; provided, however, that (a) any subsequent
issuance or transfer of any Equity Interests which results in any such
Restricted Subsidiary ceasing to be a Restricted Subsidiary or any
subsequent transfer of such Indebtedness (other than to the Company or
a Restricted Subsidiary) shall be deemed, in each case, to constitute
the Incurrence of such Indebtedness by the obligor thereon and (b) if
the Company is the obligor on such Indebtedness, such Indebtedness is
expressly subordinated to the prior payment in full in cash of all
obligations with respect to the Notes;
(6) the Incurrence by the Company or any of its Restricted
Subsidiaries of obligations under (a) Interest Rate Agreements that are
Incurred for the purpose of fixing or hedging interest rate risk with
respect to any floating rate Indebtedness that is permitted by the
terms of this Indenture to be Incurred and (b) Currency Agreements that
are Incurred for the purpose of hedging currency exchange rate risks
with respect to any Indebtedness that is permitted by the terms of this
Indenture to be Incurred, in either case that do not increase the
Indebtedness of the Company and its Restricted Subsidiaries outstanding
at any time other than as a result of fluctuations in foreign currency
exchange rates or interest rates or by reason of fees, indemnities and
compensation payable thereunder;
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(7) the Incurrence by the Company's Unrestricted Subsidiaries
of Non-Recourse Debt; provided, however, that, if any such Indebtedness
ceases to be Non-Recourse Debt of an Unrestricted Subsidiary, such
event shall be deemed to constitute an Incurrence of Indebtedness by a
Restricted Subsidiary of the Company that was not permitted by this
clause (7); or
(8) the Incurrence by the Company or any of its Restricted
Subsidiaries of additional Indebtedness in an aggregate principal
amount (or accreted value, as applicable) at any time outstanding not
to exceed $20.0 million.
For purposes of determining compliance with this Section 5.12, in the
event that an item of proposed Indebtedness meets the criteria of more than one
of the categories of Permitted Debt described in clauses (1) through (8) above,
or is entitled to be Incurred pursuant to the first paragraph of this Section
5.12, the Company shall be permitted to classify (or later reclassify in whole
or in part, in its sole discretion) such item of Indebtedness in any manner that
complies with this Section 5.12. Any items of Indebtedness may be divided and
classified (or later reclassified in whole or in part, in the Company's sole
discretion) in one or more of the types of Permitted Indebtedness.
SECTION 5.13 SALE AND LEASE-BACK TRANSACTIONS. The Company will not,
and will not permit any of its Restricted Subsidiaries to, enter into any Sale
and Lease-Back Transaction; provided that the Company or any Restricted
Subsidiary may enter into a Sale and Lease-Back Transaction if:
(1) the Company or that Restricted Subsidiary, as applicable,
could have (a) Incurred Indebtedness in an amount equal to the
Attributable Debt relating to such Sale and Lease-Back Transaction
pursuant to Section 5.12 hereof and (b) Incurred a Lien to secure such
Indebtedness pursuant to Section 5.15 hereof;
(2) the gross cash proceeds of such Sale and Lease-Back
Transaction are at least equal to the fair market value, as determined
in good faith by the Board of Directors as set forth in an Officers'
Certificate delivered to the Trustee, of the property that is the
subject of such Sale and Lease-Back Transaction; and
(3) the transfer of assets in such Sale and Lease-Back
Transaction is permitted by, and the Company applies the proceeds of
such transaction in compliance with, Section 5.14 hereof.
SECTION 5.14 ASSET SALES. The Issuers will not, and will not permit any
Restricted Subsidiary to, consummate an Asset Sale unless: (1) the Company (or
the Restricted Subsidiary, as the case may be) receives consideration at the
time of such Asset Sale at least equal to the fair market value of the assets or
Equity Interests issued or sold or otherwise disposed of; (2) such fair market
value is determined by (a) an Officer if the value is less than $5.0 million, as
evidenced by an Officers' Certificate delivered to the Trustee or (b) the Board
of Directors if the value is $5.0 million or more, as evidenced by
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a Board Resolution delivered to the Trustee; provided that if the transaction
closes more than 90 days after the date hereof and the value is greater than $25
million, the Board of Directors shall have received a fairness opinion from a
nationally recognized investment banking firm that the transaction is fair to
the Company from a financial point of view; and (3) at least 75% of the
consideration therefore received by the Company or the Restricted Subsidiary is
in the form of cash, Cash Equivalents, a controlling interest in a Permitted
Business, long-term assets used or useful in a Permitted Business, or any
combination thereof. For purposes of this Section 5.14, each of the following
shall be deemed to be cash: (1) any liabilities (as shown on the Company's or
the Restricted Subsidiary's most recent balance sheet) of the Company or any
Restricted Subsidiary (other than contingent liabilities and liabilities that
are by their terms subordinated to the Notes or any Subsidiary Guarantee) that
are assumed by the transferee of any such assets pursuant to a customary
novation agreement that releases the Company or the Restricted Subsidiary from
further liability; and (2) any securities, notes or other obligations received
by the Company or the Restricted Subsidiary from such transferee that are
converted by such issuer or the Company or the Restricted Subsidiary into cash
within 45 days after the Asset Sale (subject to ordinary settlement periods) to
the extent of the cash received in such conversion.
Within 360 days after the receipt of any Net Proceeds from an Asset
Sale, the Company or a Restricted Subsidiary may apply such Net Proceeds at its
option (1) to repay Senior Debt of the Company and/or its Restricted
Subsidiaries (or to make an offer to repurchase or redeem Senior Debt, provided
that such repurchase or redemption closes within 45 days after the end of such
360-day period) with a permanent reduction in availability for any revolving
credit Indebtedness; (2) to make a capital expenditure in a Permitted Business;
(3) to acquire other long-term assets that are used or useful in a Permitted
Business; or (4) to acquire at least 51% of the Equity Interests in a Permitted
Business. Pending the final application of any such Net Proceeds, the Issuers or
such Restricted Subsidiary may temporarily reduce revolving credit borrowings or
otherwise invest such Net Proceeds in any manner that is not prohibited by this
Indenture. Any Net Proceeds from Asset Sales that are not applied or invested as
provided in the first sentence of this paragraph will constitute "EXCESS
PROCEEDS." When the aggregate amount of Excess Proceeds exceeds $10.0 million,
the Issuer will make a pro rata offer (an "ASSET SALE OFFER") to all Holders of
Notes and all holders of other Indebtedness that is pari passu with the Notes
containing provisions similar to those set forth in this Indenture with respect
to offers to purchase or redeem with the proceeds of sales of assets to purchase
the maximum principal amount of Notes and such other pari passu Indebtedness
that may be purchased out of the Excess Proceeds. The offer price in any Asset
Sale Offer will be equal to 100% of principal amount plus accrued and unpaid
interest, if any, and premium, if any, to the date of purchase, and will be
payable in cash. If any Excess Proceeds remain after consummation of an Asset
Sale Offer, the Company may use such Excess Proceeds for any purpose not
otherwise prohibited by this Indenture. If the aggregate principal amount of
Notes and such other pari passu Indebtedness tendered into such Asset Sale Offer
exceeds the amount of Excess Proceeds allocated for repurchases of Notes
pursuant to the Asset Sale Offer for Notes, the Trustee shall select the Notes
and such other pari passu Indebtedness to be purchased on a pro
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rata basis. Upon completion of each Asset Sale Offer, the amount of Excess
Proceeds shall be reset at zero.
To the extent that the provisions of any securities laws or regulations
conflict with provisions of this covenant or Section 3.3, each of the Issuers
will comply with the applicable securities laws and regulations and will not be
deemed to have breached their obligations under this covenant by virtue thereof.
SECTION 5.15 LIENS. The Company will not, and will not permit any of
its Restricted Subsidiaries to, directly or indirectly, create, Incur, assume or
suffer to exist any Lien of any kind securing Indebtedness, Attributable Debt or
trade payables on any asset now owned or hereafter acquired (including Equity
Interests of a Restricted Subsidiary), except Permitted Liens, without making
effective provision whereby all Obligations due under the Notes and this
Indenture or any Subsidiary Guarantee, as applicable, will be secured by a Lien
equally and ratably with any and all Obligations thereby secured for so long as
any such Obligations shall be so secured.
SECTION 5.16 DIVIDEND AND OTHER PAYMENT RESTRICTIONS AFFECTING
SUBSIDIARIES. The Company will not, and will not permit any of its Restricted
Subsidiaries to, directly or indirectly, create or permit to exist or become
effective any encumbrance or restriction on the ability of any Restricted
Subsidiary to:
(1) pay dividends or make any other distributions on its
Equity Interests to the Company or to any of the Company's Restricted
Subsidiaries, or with respect to any other interest or participation
in, or measured by, its profits, or pay any indebtedness owed to the
Company or any of the other Restricted Subsidiaries;
(2) make loans or advances to or make other investments in the
Company or any of its Restricted Subsidiaries; or
(3) transfer any of its properties or assets to the Company or
to any of the other Restricted Subsidiaries (other than rights of first
refusal granted in the ordinary course of business).
However, the preceding restrictions will not apply to encumbrances or
restrictions existing under or by reason of:
(1) any Credit Facility;
(2) any Instrument governing Indebtedness or Equity Interests
of a Person acquired by the Company or any of its Restricted
Subsidiaries as in effect at the time of such acquisition (except to
the extent such Indebtedness was Incurred in connection with or in
contemplation of such acquisition), which encumbrance or restriction is
not applicable to any Person, or the properties or assets of any
Person, other than such Person, or the property or assets of such
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Person, so acquired, provided that, in the case of Indebtedness, such
Indebtedness was permitted by the terms of this Indenture to be
Incurred;
(3) customary non-assignment provisions in licenses, easements
and leases (and in contracts, such provisions relating to the
non-assignability of such contracts) entered into in the ordinary
course of business and consistent with past practices;
(4) purchase money obligations for property acquired in the
ordinary course of business that impose restrictions on the property so
acquired of the nature described in clause (3) of the preceding
paragraph;
(5) any agreement for the sale or other disposition of a
Restricted Subsidiary that contains any one or more of the restrictions
described in clauses (1) through (3) of the preceding paragraph by such
Restricted Subsidiary pending its sale or other disposition, provided
that such sale or disposition is consummated, or such restrictions are
canceled or terminated or lapse, within 90 days;
(6) Permitted Refinancing Indebtedness, provided that the
restrictions contained in the agreements governing such Permitted
Refinancing Indebtedness are no more restrictive, taken as a whole,
than those contained in the agreement governing the Indebtedness being
refinanced;
(7) Liens securing Indebtedness otherwise permitted to be
Incurred pursuant to Section 5.15 hereof that limit the right of the
Company or any of its Restricted Subsidiaries to dispose of the assets
subject to such Lien;
(8) any agreement or instrument relating to any property or
assets acquired after the Issue Date, so long as such encumbrance or
restriction relates only to the property or assets so acquired and is
not and was not created in anticipation of such acquisitions; or
(9) any agreement or instrument relating to any Acquired Debt
of any Restricted Subsidiary at the date on which such Restricted
Subsidiary was acquired by the Company or any of its Restricted
Subsidiaries (other than Indebtedness Incurred in anticipation of such
acquisitions and provided such encumbrances or restrictions extend only
to property of such acquired Restricted Subsidiary).
SECTION 5.17 LIMITATION ON THE SALE OR ISSUANCE OF EQUITY INTERESTS OF
RESTRICTED SUBSIDIARIES. The Company (1) will not, and will not permit any
Restricted Subsidiary to sell, lease, transfer or otherwise dispose of any
Equity Interest of any Restricted Subsidiary to any Person (other than to the
Company or a Wholly-Owned Restricted Subsidiary or to the general partner of
such Restricted Subsidiary to preserve such general partner's proportionate
interest), and (2) will not permit any Restricted
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Subsidiary to issue any of its Equity Interests (other than, if necessary,
shares of its Equity Interests constituting directors' or other legally required
qualifying shares) to any Person (other than to the Company or a Wholly-Owned
Restricted Subsidiary), unless (a) immediately after giving effect to such
issuance, sale or other disposition, neither the Company nor any of its
Subsidiaries own any Equity Interest of such Restricted Subsidiary; or (b)
immediately after giving effect to such issuance, sale or other disposition,
such Restricted Subsidiary would no longer constitute a Restricted Subsidiary
and any Investment in such Person remaining after giving effect thereto would
have been permitted to be made under Section 5.11 hereof if made on the date of
such issuance, sale or other disposition.
SECTION 5.18 TRANSACTION WITH AFFILIATES. The Company will not, and
will not permit any of its Restricted Subsidiaries to, directly or indirectly,
make any payment to, or sell, lease, transfer or otherwise dispose of any of its
properties or assets to, or purchase any property or assets from, or enter into
or make or amend any transaction, contract, agreement, understanding, loan,
advance or guarantee with, or for the benefit of, any Affiliate (each an
"AFFILIATE TRANSACTION"), unless:
(1) 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 arm's length
transaction by the Company or such Restricted Subsidiary with an
unrelated Person; and
(2) the Company delivers to the Trustee: (a) with respect to
any Affiliate Transaction or series of related Affiliate Transactions
involving aggregate consideration in excess of $5.0 million, a Board
Resolution and an Officers' Certificate certifying that such Affiliate
Transaction complies with this Section 5.18 and that such Affiliate
Transaction has been approved by a majority of the Disinterested
Directors; and (b) with respect to any Affiliate Transaction or series
of related Affiliate Transactions, involving aggregate consideration in
excess of $15.0 million, either (i) an opinion as to the fairness to
the Company of such Affiliate Transaction from a financial point of
view issued by an accounting appraisal or investment banking firm of
national standing recognized as an expert in rendering fairness
opinions on transactions such as those proposed; (ii) with respect to
assets classified, in accordance with GAAP, as property, plant and
equipment on the Company's or such Restricted Subsidiary's balance
sheet, a written appraisal from a nationally recognized appraiser
showing that the assets have a fair market value not less than the
consideration to be paid (provided that if the fair market value
determinedly by such appraiser is a range of values or otherwise
inexact, the Board of Directors shall determine the exact fair market
value, provided that it shall be within the range so determined by the
appraiser) or (iii) in the case of gathering, transportation,
marketing, hedging, production handling, operating, construction,
storage or other operational contracts, any such contracts are entered
into in the ordinary course of business on terms substantially similar
to those contained in similar contracts entered into by the Company or
any Restricted Subsidiary and third parties or, if none of the Company
or any
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Restricted Subsidiary has entered into a similar contract with a third
party, that the terms are no less favorable than those available from
third parties on an arm's-length basis, as determined by the Board of
Directors. Even though a particular Affiliate Transaction or series of
Affiliate Transactions may be covered by more than one of clauses (i)
through (iii) above, the compliance with any of such applicable clauses
shall be satisfactory.
The following items shall not be deemed to be Affiliate Transactions
and, therefore, will not be subject to the provisions of the prior paragraph:
(1) transactions pursuant to the Credit Facilities;
(2) payment of principal of, or interest on, any Indebtedness
of the Company or any of its Restricted Subsidiaries owed to and held
by any Affiliate of the Company or any of its Restricted Subsidiaries;
(3) any employment, equity option or equity appreciation
agreement or plan entered into by the Company or any of its Restricted
Subsidiaries in the ordinary course of business and, as applicable,
consistent with the past practice of the Company or such Restricted
Subsidiary;
(4) transactions between the Company or a Restricted
Subsidiary and another Restricted Subsidiary;
(5) any Restricted Payment permitted to be made pursuant to
Section 5.12 hereof;
(6) customary compensation, indemnification and other benefits
made available to officers, directors or employees of the Company or a
Restricted Subsidiary, including reimbursement or advancement of
out-of-pocket expenses and provisions of officers' and directors'
liability insurance; and
(7) loans to officers and employees made in the ordinary
course of business in an aggregate amount not to exceed $1 million at
any one time outstanding.
SECTION 5.19 OFFER TO REPURCHASE UPON CHANGE OF CONTROL. (a) Upon the
occurrence of a Change of Control, the Issuers shall make an offer (a "CHANGE OF
CONTROL OFFER") to each Holder of Notes to repurchase all or any part (equal to
$1.00 or an integral multiple thereof) of such Holders' Notes at an offer price
in cash equal to 101% of the aggregate principal amount thereof plus accrued and
unpaid interest thereon, if any, to the date of purchase (the "CHANGE OF CONTROL
PAYMENT"). Within 30 days following any Change of Control, the Issuers shall
mail a notice to each Holder describing the transaction or transactions that
constitute the Change of Control and stating: (i) that the Change of Control
Offer is being made pursuant to this Section 5.19 and that Notes tendered will
be accepted for payment; (ii) the purchase price and the purchase date,
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which shall be no later than 30 business days from the date such notice is
mailed (the "CHANGE OF CONTROL PAYMENT DATE"); (iii) that any Note not tendered
will continue to accrue interest; (iv) that, unless the Issuers default in the
payment of the Change of Control Payment, all Notes accepted for payment
pursuant to the Change of Control Offer shall cease to accrue interest after the
Change of Control Payment Date; (v) that Holders electing to have any Notes
purchased pursuant to a Change of Control Offer will be required to surrender
the Notes, with the form entitled "OPTION OF HOLDER TO ELECT PURCHASE" on the
reverse of the Notes completed, to the Paying Agent at the address specified in
the notice prior to the close of business on the third business day preceding
the Change of Control Payment Date; (vi) that Holders will be entitled to
withdraw their election if the Paying Agent receives, not later than the close
of business on the second business day preceding the Change of Control Payment
Date, a telegram, telex, facsimile transmission or letter setting forth the name
of the Holder, the principal amount of Notes delivered for purchase, and a
statement that such Holder is withdrawing his election to have the Notes
purchased (provided that if the Notes are held as Global Notes with the
Depository Trust Company and are eligible for ATOP, such withdrawal shall comply
with the ATOP procedures); and (vii) that Holders whose Notes are being
purchased only in part will be issued new Notes equal in principal amount to the
unpurchased portion of the Notes surrendered, which unpurchased portion must be
equal to $1.00 in principal amount or an integral multiple thereof. The Issuers
will comply with the requirements of Rule 14e-1 under the Exchange Act and any
other securities laws and regulations thereunder to the extent such laws and
regulations are applicable in connection with the repurchase of the Notes as a
result of a Change of Control.
(b) On the Change of Control Payment Date, the Issuers will, to the
extent lawful, (i) accept for payment all Notes or portions thereof properly
tendered pursuant to the Change of Control Offer, (ii) deposit with the Paying
Agent an amount equal to the Change of Control Payment in respect of all Notes
or portions thereof so tendered and (iii) deliver or cause to be delivered to
the Trustee, the Notes so accepted together with an Officers' Certificate
stating the aggregate principal amount of Notes or portions thereof being
purchased by the Issuers. The Paying Agent will promptly mail to each Holder of
Notes so tendered the Change of Control Payment for such Notes, and the Trustee
will promptly authenticate (upon receipt of a Company Order) and mail (or cause
to be transferred by book entry) to each Holder a new Note equal in principal
amount to any unpurchased portion of the Notes surrendered, if any; provided
that each such new Note will be in a principal amount of $1.00 or an integral
multiple thereof. The Issuers will publicly announce the results of the Change
of Control Offer on or as soon as practicable after the Change of Control
Payment Date.
Notwithstanding the foregoing, if the Notes are held as a Global Note
by the Depository Trust Company or a nominee thereof, and the Notes are eligible
for purchase pursuant to ATOP, the Issuers may comply with the ATOP procedures
rather than the procedures set forth above. In addition, to the extent that the
provisions of any securities laws or regulations conflict with provisions of
this Section 5.19, the Issuers will comply with the applicable securities laws
and regulations and will not be deemed to have breached their obligations under
this Section 5.19 by virtue thereof.
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SECTION 5.20 ADDITIONAL SUBSIDIARY GUARANTEES. If the Company or any of
its Restricted Subsidiaries acquires or creates another Restricted Subsidiary
after the date of this Indenture, the Company shall (a) cause such newly
acquired or created Restricted Subsidiary to execute and deliver to the Trustee
a supplemental indenture in the form of Exhibit E hereto, pursuant to which such
Restricted Subsidiary shall guarantee payment of the Notes as provided in
Article XII hereof and (b) deliver an Opinion of Counsel to the Trustee within
10 business days of the date on which such Restricted Subsidiary was acquired or
created.
SECTION 5.21 DESIGNATION OF RESTRICTED AND UNRESTRICTED SUBSIDIARIES.
The Company may designate any Restricted Subsidiary to be an Unrestricted
Subsidiary if that designation would not cause a Default under this Indenture;
provided, however, that OLP and EOTT Finance may not be designated as
Unrestricted Subsidiaries and each of OLP and EOTT Finance shall at all times
continue to be direct or indirect wholly-owned Subsidiaries of the Company. If a
Restricted Subsidiary is designated as an Unrestricted Subsidiary pursuant to
this Section 5.21, all outstanding Investments owned by the Company and its
Restricted Subsidiaries in the Subsidiary so designated will be deemed to be an
Investment made as of the time of such designation and will reduce the amount
available for Restricted Payments under clause (I) of Section 5.11 hereof or for
Permitted Investments, as applicable. All such outstanding Investments shall be
valued at their fair market value at the time of such designation as determined
by the Board of Directors as set forth in an Officers' Certificate delivered to
the Trustee. Such designation will only be permitted if such Restricted Payment
or Permitted Investment would be permitted at such time and such Restricted
Subsidiary otherwise meets the definition of an Unrestricted Subsidiary herein.
All Subsidiaries of an Unrestricted Subsidiary shall be also Unrestricted
Subsidiaries. The Board of Directors may redesignate any Unrestricted Subsidiary
to be a Restricted Subsidiary if (1) a Default is not continuing under this
Indenture, (2) the redesignation would not cause a Default under this Indenture,
(3) such Subsidiary becomes a Subsidiary Guarantor pursuant to Section 5.20
hereof and (4) provided that, after giving effect to such designation, the
Company and its remaining Restricted Subsidiaries could Incur at least $1.00 of
additional Indebtedness under the first paragraph of Section 5.12 hereof. A
subsidiary may not be designated as an Unrestricted Subsidiary unless at the
time of such designation, (1) it has no Indebtedness other than Non-Recourse
Debt; (2) no portion of the Indebtedness or any other obligation of such
Subsidiary (whether contingent or otherwise and whether pursuant to the terms of
such Indebtedness or the terms governing the organization and operation of such
Subsidiary or by law) (a) is guaranteed by the Company or any other Restricted
Subsidiary, except as such Indebtedness is permitted by Section 5.11 and 5.12
hereof, (b) is recourse to or obligates the Company or any Restricted Subsidiary
in any way (including any "claw-back," "keep-well" or "make-well" agreements or
other agreements, arrangements or understandings to maintain the financial
performance or results of operations of such Subsidiary, except as such
Indebtedness or Investment is permitted by Sections 5.12 and 5.13 hereof) or (c)
subjects any property or assets of the Company or any Restricted Subsidiary,
directly or indirectly, contingently or otherwise, to the satisfaction thereof;
and (3) no Equity Interests of a Restricted Subsidiary are held by
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such Subsidiary, directly or indirectly. Upon the designation of a Restricted
Subsidiary that is a Subsidiary Guarantor as an Unrestricted Subsidiary, the
Subsidiary Guarantee of such entity shall be released.
SECTION 5.22 BUSINESS ACTIVITIES. The Company will not, and will not
permit any Restricted Subsidiary to, engage in any business that is not a
Permitted Business.
SECTION 5.23 RESTRICTIONS ON NATURE OF INDEBTEDNESS AND ACTIVITIES OF
EOTT FINANCE. In addition to the restrictions set forth in Section 5.12 hereof,
EOTT Finance shall not Incur any Indebtedness unless (a) the Company is a
co-obligor or guarantor of such Indebtedness or (b) the net proceeds of such
Indebtedness are lent to the Company, used to acquire Outstanding Notes issued
by the Company or used directly or indirectly to refinance or discharge
Indebtedness permitted under the limitations of this Section 5.23. EOTT Finance
shall not engage in any business not related directly or indirectly to obtaining
money or arranging financing for the Company.
SECTION 5.24 PAYMENTS FOR CONSENT. The Company will not, and will not
permit any of its Subsidiaries to, directly or indirectly, pay or cause to be
paid any consideration to or for the benefit of any Holder of Notes for or as an
inducement to any consent, waiver or amendment of any of the terms or provisions
of this Indenture or the Notes unless such consideration is offered to be paid
and is paid to all Holders of the Notes that consent, waive or agree to amend in
the time frame set forth in the solicitation documents relating to such consent,
waiver or amendment.
ARTICLE VI.
HOLDERS' LISTS AND REPORTS
BY THE ISSUERS AND THE TRUSTEE
SECTION 6.1 ISSUERS TO FURNISH TRUSTEE INFORMATION AS TO NAMES AND
ADDRESSES OF HOLDERS; PRESERVATION OF INFORMATION. The Issuers covenant and
agree that they will furnish or cause to be furnished to the Trustee with
respect to the Registered Notes:
(a) not more than 15 days after each record date with respect
to the payment of interest, if any, a list, in such form as the Trustee
may reasonably require, of the names and addresses of the Registered
Holders as of such record date, and
(b) at such other times as the Trustee may request in writing,
within 30 days after the receipt by the Issuers of any such request, a
list as of a date not more than 15 days prior to the time such list is
furnished;
provided, however, that so long as the Trustee shall be the Registrar, such
lists shall not be required to be furnished.
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The Trustee shall preserve, in as current a form as is reasonably
practicable, all information as to the names and addresses of the Holders (i)
contained in the most recent list furnished to it as provided in this Section
6.1 or (ii) received by it in the capacity of Paying Agent or Registrar (if so
acting) hereunder.
The Trustee may destroy any list furnished to it as provided in this
Section 6.1 upon receipt of a new list so furnished.
SECTION 6.2 COMMUNICATIONS TO HOLDERS. Holders may communicate pursuant
to Section 312(b) of the Trust Indenture Act with other Holders with respect to
their rights under this Indenture or the Notes. The Issuers, the Trustee, the
Registrar and anyone else shall have the protection of Section 312(c) of the
Trust Indenture Act.
SECTION 6.3 REPORTS BY ISSUERS. (a) The Issuers covenant and agree, and
any obligor hereunder shall covenant and agree, to file with the Trustee, within
15 days after the Issuers or such obligor, as the case may be, is required to
file the same with the SEC, copies of the annual reports and of the information,
documents and other reports (or copies of such portions of any of the foregoing
as the SEC may from time to time by rules and regulations prescribe) which the
Issuers or such obligor, as the case may be, may be required to file with the
SEC pursuant to Section 13 or Section 15(d) of the Exchange Act; or, if either
of the Issuers or such obligor, as the case may be, is not required to file
information, documents or reports pursuant to either of such Sections, then to
file with the Trustee and the SEC in accordance with rules and regulations
prescribed from time to time by the SEC, such of the supplementary and periodic
information, documents and reports which may be required pursuant to Section 13
of the Exchange Act in respect of a security listed and registered on a national
securities exchange as may be prescribed from time to time in such rules and
regulations.
(b) The Issuers covenant and agree, and any obligor hereunder shall
covenant and agree, to file with the Trustee and the SEC, in accordance with the
rules and regulations prescribed from time to time by the SEC, such additional
information, documents, and reports with respect to compliance by the Issuers or
such obligor, as the case may be, with the conditions and covenants provided for
in this Indenture as may be required from time to time by such rules and
regulations.
SECTION 6.4 REPORTS BY TRUSTEE. The Trustee shall transmit to Holders
such reports concerning the Trustee and its actions under this Indenture as may
be required pursuant to the Trust Indenture Act at the time and in the manner
provided pursuant thereto.
Reports pursuant to this Section 6.4 shall be transmitted by mail:
(1) to all Registered Holders, as the names and addresses of
such Holders appear in the Note Register;
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(2) except in the cases of reports under Section 313(b)(2) of
the Trust Indenture Act, to each holder of a Note whose name and
address appear in the information preserved at the time by the Trustee
in accordance with Section 6.2.
A copy of each report at the time of its mailing to Holders shall be
filed with the SEC and each stock exchange (if any) on which the Notes are
listed. The Issuers agree to promptly notify the Trustee in writing whenever the
Notes become listed on any stock exchange and of any delisting thereof.
SECTION 6.5 RECORD DATES FOR ACTION BY HOLDERS. If the Issuers shall
solicit from the Holders of Notes any action (including the making of any demand
or request, the giving of any direction, notice, consent or waiver or the taking
of any other action), the Issuers may, at their option, by resolution of the
Board of Directors, fix in advance a record date for the determination of
Holders of Notes entitled to take such action, but the Issuers shall have no
obligation to do so. Any such record date shall be fixed at the Issuers'
discretion. If such a record date is fixed, such action may be sought or given
before or after the record date, but only the Holders of Notes of record at the
close of business on such record date shall be deemed to be Holders of Notes for
the purpose of determining whether Holders of the requisite proportion of
Outstanding Notes have authorized or agreed or consented to such action, and for
that purpose the Outstanding Notes shall be computed as of such record date.
ARTICLE VII.
DEFAULTS AND REMEDIES
SECTION 7.1 EVENTS OF DEFAULT. An "EVENT OF DEFAULT" occurs if:
(a) the Issuers default in the payment when due of interest on the
Notes and such default continues for a period of 30 days;
(b) the Issuers default in the payment when due of principal of or
premium, if any, on the Notes when the same becomes due and payable at maturity,
upon redemption (including in connection with an offer to purchase) or
otherwise;
(c) the Company or any of its Subsidiaries fails to comply with any of
the provisions of Section 5.14 or 5.19 or Article IV hereof;
(d) the Company or any of its Restricted Subsidiaries fails to comply
for 30 days after notice to the Issuers by the Trustee or the Holders of at
least 25% in aggregate principal amount of the Notes then outstanding voting as
a single class, with any of the provisions of Section 5.12 hereof;
(e) the Company or any of its Restricted Subsidiaries fails to observe
or perform any other covenant, representation, warranty or other agreement in
this Indenture
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or the Notes for 60 days after notice to the Issuers by the Trustee or the
Holders of at least 25% in aggregate principal amount of the Notes;
(f) an Issuer or any of the Company's Restricted Subsidiaries defaults
under any mortgage, indenture or instrument under which there may be issued or
by which there may be secured or evidenced any Indebtedness for money borrowed
by an Issuer or by any of the Company's Restricted Subsidiaries (or the payment
of which is guaranteed by the Company or any of its Restricted Subsidiaries),
whether such Indebtedness or guarantee now exists or is created after the date
of this Indenture, if that default: (i) is caused by a failure to pay principal
of or premium, if any, or interest on such Indebtedness prior to the expiration
of the grace period provided in such Indebtedness on the date of such default (a
"PAYMENT DEFAULT"); or (ii) results in the acceleration of such Indebtedness
prior to its express maturity, and, in each case, the principal amount of any
such Indebtedness, together with the principal amount of any other such
Indebtedness under which there has been a Payment Default or the maturity of
which has been so accelerated, aggregates $10.0 million or more;
(g) a final judgment or final judgments for the payment of money are
entered by a court or courts of competent jurisdiction against an Issuer or any
of the Company's Restricted Subsidiaries and such judgment or judgments are not
paid, discharged or stayed for a period (during which execution shall not be
effectively stayed) of 60 days, provided that the aggregate of all such
undischarged judgments exceeds $10.0 million.
(h) except as permitted by this Indenture, any Subsidiary Guarantee
shall be held in any judicial proceeding to be unenforceable or invalid or shall
cease for any reason to be in full force and effect or any Subsidiary Guarantor,
or any Person acting on behalf of any Subsidiary Guarantor, shall deny or
disaffirm its obligations under this Indenture or any Subsidiary Guarantee;
(i) the Company or any Restricted Subsidiary that constitutes a
Significant Subsidiary or any group of Restricted Subsidiaries that, taken as a
whole, would constitute a Significant Subsidiary pursuant to or within the
meaning of Bankruptcy Law:
(1) commences a voluntary case,
(2) consents to the entry of an order for relief against it in
an involuntary case,
(3) consents to the appointment of a Custodian of it or for
all or substantially all of its property,
(4) makes a general assignment for the benefit of its
creditors, or
(5) generally is not paying its debts as they become due; or
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(j) a court of competent jurisdiction enters an order or decree under
any Bankruptcy Law that:
(1) is for relief against the Company or any Restricted
Subsidiary that constitutes a Significant Subsidiary or any group of
Restricted Subsidiaries that, taken as a whole, would constitute a
Significant Subsidiary in an involuntary case;
(2) appoints a Custodian of the Company or any Restricted
Subsidiary that constitutes a Significant Subsidiary or any group of
Restricted Subsidiaries that, taken as a whole, would constitute a
Significant Subsidiary or for all or substantially all of the property
of the Company or any Restricted Subsidiary that constitutes a
Significant Subsidiary or any group of Restricted Subsidiaries that,
taken as a whole, would constitute a Significant Subsidiary; or
(3) orders the liquidation of the Company or any Restricted
Subsidiary that constitutes a Significant Subsidiary or any group of
Restricted Subsidiaries that, taken as a whole, would constitute a
Significant Subsidiary;
and the order or decree remains unstayed and in effect for 60
consecutive days.
SECTION 7.2 ACCELERATION. If any Event of Default (other than an Event
Default specified in clause (i) or (j) of Section 7.1 hereof with respect to the
Company, any Restricted Subsidiary that constitutes a Significant Subsidiary or
any group of Restricted Subsidiaries that, taken as a whole, would constitute a
Significant Subsidiary) occurs and is continuing, either the Trustee or the
Holders of at least 25% in principal amount of the then Outstanding Notes may
declare all the Notes to be due and payable immediately. Upon any such
declaration, the Notes shall become due and payable immediately. Notwithstanding
the foregoing, if an Event of Default specified in clause (i) or (j) of Section
7.1 hereof occurs with respect to the Company, any Restricted Subsidiary that
constitutes a Significant Subsidiary or any group of Restricted Subsidiaries
that, taken as a whole, would constitute a Significant Subsidiary, all
Outstanding Notes shall become due and payable without further action or notice.
The Holders of a majority in aggregate principal amount of the then Outstanding
Notes by written notice to the Trustee may on behalf of all of the Holders
rescind an acceleration and its consequences if the rescission would not
conflict with any judgment or decree and if all existing Events of Default
(except nonpayment of principal, interest or premium that has become due solely
because of the acceleration) have been cured or waived.
SECTION 7.3 OTHER REMEDIES.
(a) Subject to Sections 7.3 and 7.5 hereof, if an Event of Default
occurs and is continuing, the Trustee may pursue any available remedy to collect
the payment of principal, premium, if any, and interest on the Notes or to
enforce the performance of any provision of the Notes of this Indenture.
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(b) Subject to Sections 7.4 and 7.5 hereof, the Trustee may maintain a
proceeding even if it does not possess any of the Notes or does not produce any
of them in the proceeding. A delay or omission by the Trustee or any Holder of a
Note in exercising any right or remedy accruing upon an Event of Default shall
not impair the right or remedy or constitute a waiver of or acquiescence in the
Event of Default. All remedies are cumulative to the extent permitted by law.
SECTION 7.4 WAIVER OF PAST DEFAULTS. Holders of not less than a
majority in aggregate principal amount of the Outstanding Notes by written
notice to the Trustee may on behalf of the Holders of all of the Notes waive any
existing Default or Event of Default and its consequences hereunder, except a
continuing Default or Event of Default in the payment of the principal of,
premium, if any, or interest on, the Notes (including in connection with an
offer to purchase) (provided, however, that the Holders of a majority in
aggregate principal amount of the 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 Indenture; but no such waiver shall extend to any
subsequent or other Default or impair any right consequent thereon.
SECTION 7.5 CONTROL BY MAJORITY. Holders of a majority in principal
amount of the 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 Indenture, 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.
SECTION 7.6 LIMITATION ON SUITS. A Holder of a Note may pursue a remedy
with respect to this Indenture or the Notes 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 principal amount of the
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 the offer and, if requested, the
provision of indemnity; and
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(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 Indenture to prejudice the rights
of another Holder of a Note or to obtain a preference or priority over another
Holder of a Note.
SECTION 7.7 RIGHTS OF HOLDERS OF NOTES TO RECEIVE PAYMENT.
Notwithstanding any other provision of this Indenture, the right of any Holder
of a Note to receive payment of principal, premium, if any, and interest on the
Note, on or after the respective due dates expressed in the Note (including in
connection with an offer to purchase), or to bring suit for the enforcement of
any such payment on or after such respective dates, shall not be impaired or
affected without the consent of such Holder.
SECTION 7.8 COLLECTION SUIT BY TRUSTEE. If an Event of Default
specified in Section 7.1(a) or (b) hereof occurs and is continuing, the Trustee
is authorized to recover judgment in its own name and as trustee of an express
trust against the Issuers for the whole amount of principal of, premium on, 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.
SECTION 7.9 TRUSTEE MAY FILE PROOFS OF CLAIM. The Trustee is authorized
to file such proofs of claim and other papers or documents as may be necessary
or advisable in order to have the claims of the Trustee (including any claim for
the reasonable compensation, expenses, disbursements and advances of the
Trustee, its agents and counsel) and the Holders of the Notes allowed in any
judicial proceedings relative to the Issuers (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 8.6. 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 8.6 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 or 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.
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SECTION 7.10 PRIORITIES. If the Trustee collects any money pursuant to
this Article, it shall pay out the money in the following order:
First: to the Trustee, its agents and attorneys for amounts
due under Section 8.6, including payment of all compensation, expense
and liabilities incurred, and all advances made, by the Trustee and the
costs and expense of collection;
Second: to Holders of Notes for amounts due and unpaid on the
Notes for principal, premium, if any, and interest, ratably, without
preference or priority of any kind, according to the amounts due and
payable on the Notes for principal, premium, if any, and interest,
respectively; and
Third: to the Issuers 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 7.10.
SECTION 7.11 UNDERTAKING FOR COSTS. In any suit for the enforcement of
any right or remedy under this Indenture or in any suit against the Trustee for
any action taken or omitted by it as a Trustee, a court in its discretion may
require the filing by any party litigant in the suit of an undertaking to pay
the costs of the suit, and the court in its discretion may assess reasonable
costs, including reasonable attorneys' fees and expenses, against any party
litigant in the suit, having due regarding to the merits and good faith of the
claims or defenses made by the party litigant. This Section does not apply to a
suit by the Trustee, a suit by a Holder of a Note pursuant to Section 7.7
hereof, or a suit by Holders of more than 10% in principal amount of the
Outstanding Notes.
ARTICLE VIII.
CONCERNING THE TRUSTEE
SECTION 8.1 CERTAIN DUTIES AND RESPONSIBILITIES. The Trustee, prior to
the occurrence of an Event of Default and after the curing or waiving of all
Events of Default which may have occurred, undertakes to perform such duties and
only such duties as are specifically set forth in this Indenture. In case an
Event of Default has occurred (which has not been cured or waived), the Trustee
shall exercise such of the rights and powers vested in it by this Indenture, and
use the same degree of care and skill in their exercise, as a prudent man would
exercise or use under the circumstances in the conduct of his own affairs.
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No provision of this Indenture shall be construed to relieve the
Trustee from liability for its own negligent action, its own negligent failure
to act, or its own willful misconduct, except that:
(a) this subsection shall not be construed to limit the effect
of the first paragraph of this Section 8.1;
(b) prior to the occurrence of an Event of Default and after
the curing or waiving of all Events of Default which may have occurred:
(1) the duties and obligations of the Trustee with
respect to the Notes shall be determined solely by the express
provisions of this Indenture, and the Trustee shall not be
liable except for the performance of such duties and
obligations with respect to the Notes as are specifically set
forth in this Indenture, and no implied covenants or
obligations with respect to the Notes shall be read into this
Indenture against the Trustee; and
(2) in the absence of bad faith on the part of the
Trustee, the Trustee may conclusively rely, as to the truth of
the statements and the correctness of the opinions expressed
therein, upon any certificates or opinions furnished to the
Trustee and conforming to the requirements of this Indenture;
but in the case of any such certificates or opinions which by
any provision hereof are specifically required to be furnished
to the Trustee, the Trustee shall be under a duty to examine
the same to determine whether or not they conform to the
requirements of this Indenture;
(c) the Trustee shall not be liable for an error of judgment
made in good faith by a Responsible Officer, unless it shall be
conclusively determined by a court of competent jurisdiction that the
Trustee was negligent in ascertaining the pertinent facts; and
(d) the Trustee shall not be liable with respect to any action
taken or omitted to be taken by it with respect to the Notes in good
faith in accordance with the direction of the Holders of not less than
a majority in aggregate principal amount of the Outstanding Notes
relating to the time, method and place of conducting any proceeding for
any remedy available to the Trustee, or exercising any trust or power
conferred upon the Trustee, under this Indenture with respect to the
Notes.
None of the provisions of this Indenture shall require the Trustee to
expend or risk its own funds or otherwise incur any personal financial liability
in the performance of any of its duties hereunder, or in the exercise of any of
its rights or powers, if there shall be reasonable grounds for believing that
repayment of such funds or adequate indemnity against such risk or liability is
not reasonably assured to it.
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Whether or not therein expressly so provided, every provision of this
Indenture relating to the conduct or affecting the liability of or affording
protection to the Trustee shall be subject to the provisions of this Section.
SECTION 8.2 CERTAIN RIGHTS OF TRUSTEE. Except as otherwise provided in
Section 8.1:
(a) the Trustee may conclusively rely and shall be fully
protected in acting or refraining from acting upon any resolution,
certificate, statement, instrument, opinion, report, notice, request,
direction, consent, order, bond, debenture, note or other paper or
document believed by it to be genuine and to have been signed or
presented by the proper party or parties;
(b) any request, direction, order or demand of the Issuers
mentioned herein shall be sufficiently evidenced by a Company Order
(unless other evidence in respect thereof be herein specifically
prescribed); and any resolution of the Board of Directors may be
evidenced to the Trustee by a copy thereof certified by the Secretary
or an Assistant Secretary of each of the Issuers;
(c) the Trustee may consult with counsel, and the advice of
such counsel or any Opinion of Counsel shall be full and complete
authorization and protection in respect of any action taken or suffered
or omitted by it hereunder in good faith and in accordance with such
advice or Opinion of Counsel;
(d) the Trustee shall be under no obligation to exercise any
of the rights or powers vested in it by this Indenture at the request,
order or direction of any of the Holders of Notes pursuant to the
provisions of this Indenture, unless such Holders shall have offered to
the Trustee security or indemnity satisfactory to it against the costs,
expenses and liabilities which may be Incurred therein or thereby;
(e) the Trustee shall not be liable for any action taken or
omitted by it in good faith and reasonably believed by it to be
authorized or within the discretion or rights or powers conferred upon
it by this Indenture;
(f) prior to the occurrence of an Event of Default and after
the curing of all Events of Default which may have occurred, 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, approval
or other paper or document, unless requested in writing to do so by the
Holders of a majority in aggregate principal amount of the Outstanding
Notes affected by such matter; provided, however, that if the payment
within a reasonable time to the Trustee of the costs, expenses or
liabilities likely to be Incurred by it in the making of such
investigation is not, in the opinion of the Trustee, reasonably assured
to the Trustee by the security afforded to it by the terms of this
Indenture, the Trustee may require indemnity satisfactory to it
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against such costs, expenses or liabilities as a condition to so
proceeding. The expense of every such investigation shall be paid by
the Issuers or, if paid by the Trustee, shall be repaid by the Issuers
upon demand;
(g) the Trustee may execute any of the trusts or powers
hereunder or perform any duties hereunder either directly or by or
through agents, attorneys, custodians or nominees and the Trustee shall
not be responsible for any misconduct or negligence on the part of any
agent, attorney, custodian or nominee appointed by it with due care
hereunder; and
(h) if any property other than cash shall at any time be
subject to a Lien in favor of the Holders, the Trustee, if and to the
extent authorized by a receivership or bankruptcy court of competent
jurisdiction or by the supplemental instrument subjecting such property
to such lien, shall be entitled to make advances for the purpose of
preserving such property or of discharging tax Liens or other prior
Liens or encumbrances thereon.
SECTION 8.3 TRUSTEE NOT LIABLE FOR RECITALS IN INDENTURE OR IN THE
NOTES. The recitals contained herein and in the Notes (except the Trustee's
certificate of authentication) shall be taken as the statements of the Issuers,
and the Trustee assumes no responsibility for the correctness of the same. The
Trustee makes no representations as to the validity or sufficiency of this
Indenture or of the Notes, except that the Trustee represents that it is duly
authorized to execute and deliver this Indenture, authenticate the Notes and
perform its obligations hereunder, and that the statements made by it or to be
made by it in a Statement of Eligibility and Qualification on Form T-1 supplied
to the Issuers are true and accurate. The Trustee shall not be accountable for
the use or application by the Issuers of any of the Notes or of the proceeds
thereof.
SECTION 8.4 TRUSTEE, PAYING AGENT OR REGISTRAR MAY OWN NOTES. The
Trustee or any Paying Agent or Registrar, in its individual or any other
capacity, may become the owner or pledgee of Notes and subject to the provisions
of the Trust Indenture Act relating to conflicts of interest and preferential
claims may otherwise deal with the Issuers with the same rights it would have if
it were not Trustee, Paying Agent or Registrar.
SECTION 8.5 MONEYS RECEIVED BY TRUSTEE TO BE HELD IN TRUST. Subject to
the provisions of Section 11.6, all moneys received by the Trustee shall, until
used or applied as herein provided, be held in trust for the purposes for which
they were received, but need not be segregated from other funds except to the
extent required by law. The Trustee shall be under no liability for interest on
any moneys received by it hereunder. So long as no Event of Default shall have
occurred and be continuing, all interest allowed on any such moneys shall be
paid from time to time to the Issuers upon a Company Order.
SECTION 8.6 COMPENSATION AND REIMBURSEMENT. The Issuers covenant and
agree to pay to the Trustee from time to time, and the Trustee shall be entitled
to, compensation
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for all services rendered by it hereunder as agreed to in writing (which shall
not be limited by any provision of law in regard to the compensation of a
trustee of an express trust), and, except as otherwise expressly provided
herein, the Issuers will pay or reimburse the Trustee upon its request for all
reasonable expenses, disbursements and advances incurred or made by the Trustee
in accordance with any of the provisions of this Indenture (including the
reasonable compensation and the expenses and disbursements of its agents,
attorneys and counsel and of all Persons not regularly in its employ) except any
such expense, disbursement or advances as may arise from its negligence or bad
faith. The Issuers also covenant to indemnify, and to hold the Trustee and its
officers, directors employees and agents harmless against, any loss, liability
or expense Incurred without negligence, willful misconduct or bad faith on the
part of the Trustee, arising out of or in connection with the acceptance or
administration of this trust or trusts hereunder, including the reasonable costs
and expenses of defending itself against any claim of liability in connection
with the exercise or performance of any of its powers or duties hereunder. The
obligations of the Issuers under this Section 8.6 to compensate and indemnify
the Trustee and to pay or reimburse the Trustee for expenses, disbursements and
advances shall constitute additional Indebtedness hereunder and shall survive
the satisfaction and discharge of this Indenture or the earlier resignation or
removal of the Trustee. The Issuers and the Holders agree that such additional
Indebtedness shall be secured by a Lien prior to that of the Notes upon all
property and funds held or collected by the Trustee, as such, except funds held
in trust for the payment of principal of, and premium, if any, or interest on,
particular Notes.
When the Trustee incurs expenses or renders services after an
Event of Default specified in Section 7.1(i) or (j) occurs, the expenses and the
compensation for the services are intended to constitute expenses of
administration under any bankruptcy, insolvency, reorganization or other similar
law.
SECTION 8.7 RIGHT OF TRUSTEE TO RELY ON AN OFFICERS' CERTIFICATE WHERE
NO OTHER EVIDENCE SPECIFICALLY PRESCRIBED. Except as otherwise provided in
Section 8.1, whenever in the administration of the provisions of this Indenture
the Trustee shall deem it necessary or desirable that a matter be proved or
established prior to taking or suffering or omitting any action hereunder, such
matter (unless other evidence in respect thereof be herein specifically
prescribed) may, in the absence of negligence or bad faith on the part of the
Trustee, be deemed to be conclusively proved and established by an Officers'
Certificate delivered to the Trustee and such certificate, in the absence of
negligence or bad faith on the part of the Trustee, shall be full warrant to the
Trustee for any action taken, suffered or omitted by it under the provisions of
this Indenture upon the faith thereof.
SECTION 8.8 SEPARATE TRUSTEE; REPLACEMENT OF TRUSTEE. The Trustee may
resign at any time by giving notice to the Issuers. The Holders of a majority in
principal amount of the Outstanding Notes may remove the Trustee by so notifying
the Trustee in writing and may appoint a successor Trustee. The Issuers shall
remove the Trustee if:
(1) the Trustee fails to comply with Section 8.10;
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(2) the Trustee is adjudged bankrupt or insolvent;
(3) a receiver or other public officer takes charge of the
Trustee or its property; or
(4) the Trustee otherwise becomes incapable of acting.
If the Trustee resigns, is removed by the Issuers or by the Holders of
a majority in principal amount of the Notes and such Holders do not reasonably
promptly appoint a successor Trustee, or if a vacancy exists in the office of
Trustee for any reason (the Trustee in such event being referred to herein as
the retiring Trustee), the Issuers shall promptly appoint a successor Trustee.
No resignation or removal of the Trustee and no appointment of a successor
Trustee shall become effective until the acceptance of appointment by the
successor Trustee in accordance with the applicable requirements of this Section
8.8.
A successor Trustee shall deliver a written acceptance of its
appointment to the retiring Trustee and to the Issuers. Thereupon the
resignation or removal of the retiring Trustee shall become effective, and the
successor Trustee shall have all the rights, powers and duties of the Trustee
under this Indenture. The successor Trustee shall mail a notice of its
succession to Holders of Notes. The retiring Trustee shall promptly transfer all
property held by it as Trustee to the successor Trustee, subject to the Lien
provided for in Section 8.6.
If a successor Trustee does not take office within 60 days after the
retiring Trustee gives notice of resignation or is removed, the retiring Trustee
or the Holders of 25% in principal amount of the Outstanding Notes may petition
any court of competent jurisdiction for the appointment of a successor Trustee
for the Notes.
If the Trustee fails to comply with Section 8.10, any Holder of Notes
may petition any court of competent jurisdiction for the removal of the Trustee
and the appointment of a successor Trustee for the Notes.
Notwithstanding the replacement of the Trustee pursuant to this Section
8.8, the Issuers' obligations under Section 8.6 shall continue for the benefit
of the retiring Trustee.
SECTION 8.9 SUCCESSOR TRUSTEE BY MERGER. If the Trustee consolidates
with, merges or converts into, or transfers all or substantially all of its
corporate trust business or assets to, another corporation or banking
association, the resulting, surviving or transferee corporation or banking
association without any further act shall be the successor Trustee.
In case at the time such successor or successors by merger, conversion
or consolidation to the Trustee shall succeed to the trusts created by this
Indenture any of
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the Notes shall have been authenticated but not delivered, any such successor to
the Trustee may adopt the certificate of authentication of any predecessor
trustee, and deliver such Notes so authenticated; and in case at that time any
of the Notes shall not have been authenticated, any successor to the Trustee may
authenticate such Notes either in the name of the predecessor hereunder or in
the name of the successor to the Trustee; and in all such cases such
certificates shall have the full force which it is anywhere in the Notes or in
this Indenture provided that the certificate of the Trustee shall have.
SECTION 8.10 ELIGIBILITY; DISQUALIFICATION. The Trustee shall at all
times satisfy the requirements of Section 310(a) of the Trust Indenture Act. The
Trustee shall have a combined capital and surplus of at least $50,000,000 as set
forth in its most recent published annual report of condition. No obligor upon
the Notes or Person directly or indirectly controlling, controlled by or under
common control with such obligor shall serve as Trustee upon the Notes. The
Trustee shall comply with Section 310(b) of the Trust Indenture Act; provided,
however, that there shall be excluded from the operation of Section 310(b)(1) of
the Trust Indenture Act this Indenture or any indenture or indentures under
which other securities or certificates of interest or participation in other
securities of the Issuers are outstanding if the requirements for such exclusion
set forth in Section 310(b)(1) of the Trust Indenture Act are met.
SECTION 8.11 PREFERENTIAL COLLECTION OF CLAIMS AGAINST ISSUERS. The
Trustee shall comply with Section 311(a) of the Trust Indenture Act, excluding
any creditor relationship listed in Section 311(b) of the Trust Indenture Act. A
Trustee who has resigned or been removed shall be subject to Section 311(a) of
the Trust Indenture Act to the extent indicated therein.
SECTION 8.12 COMPLIANCE WITH TAX LAWS. The Trustee hereby agrees to
comply with all U.S. Federal income tax information reporting and withholding
requirements applicable to it with respect to payments of premium (if any) and
interest on the Notes, whether acting as Trustee, Registrar, Paying Agent or
otherwise with respect to the Notes.
ARTICLE IX.
CONCERNING THE HOLDERS
SECTION 9.1 EVIDENCE OF ACTION BY HOLDERS. Whenever in this Indenture
it is provided that the Holders of a specified percentage in aggregate principal
amount of the Notes may take action (including the making of any demand or
request, the giving of any direction, notice, consent or waiver or the taking of
any other action) the fact that at the time of taking any such action the
Holders of such specified percentage have joined therein may be evidenced (a) by
any instrument or any number of instruments of similar tenor executed by Holders
in person or by agent or proxy appointed in writing, (b) by the record of the
Holders voting in favor thereof at any meeting of Holders duly called and held
in accordance with the provisions of Section 6.2 or (c) by a combination of such
instrument or instruments and any such record of such a meeting of Holders.
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SECTION 9.2 PROOF OF EXECUTION OF INSTRUMENTS AND OF HOLDING OF NOTES.
Subject to the provisions of Sections 8.1, 8.2 and 13.9, proof of the execution
of any instrument by a Holder or his agent or proxy shall be sufficient if made
in accordance with such reasonable rules and regulations as may be prescribed by
the Trustee or in such manner as shall be satisfactory to the Trustee.
The ownership of Registered Notes shall be proved by the Note Register
or by a certificate of the Registrar. The Trustee may require such additional
proof of any matter referred to in this Section 9.2 as it shall deem necessary.
SECTION 9.3 WHO MAY BE DEEMED OWNER OF NOTES. Prior to due presentment
for registration of transfer of any Registered Note, the Issuers, the Trustee,
any Paying Agent and any Registrar may deem and treat the Person in whose name
any Registered Note shall be registered upon the books of the Issuers as the
absolute owner of such Registered Note (whether or not such Registered Note
shall be overdue and notwithstanding any notation of ownership or other writing
thereon) for the purpose of receiving payment of or on account of the principal
of and premium, if any, and interest on such Registered Note and for all other
purposes, and neither the Issuers nor the Trustee nor any Paying Agent nor any
Registrar shall be affected by any notice to the contrary; and all such payments
so made to any such Holder for the time being, or upon his order, shall be valid
and, to the extent of the sum or sums so paid, effectual to satisfy and
discharge the liability for moneys payable upon any such Registered Note.
None of the Issuers, the Trustee, any Paying Agent or the Registrar
will have any responsibility or liability for any aspect of the records relating
to or payments made on account of beneficial ownership interests in a Global
Note or for maintaining, supervising or reviewing any records relating to such
beneficial ownership interests.
SECTION 9.4 INSTRUMENTS EXECUTED BY HOLDERS BIND FUTURE ORDERS. At any
time prior to (but not after) the evidencing to the Trustee, as provided in
Section 9.1, of the taking of any action by the Holders of the percentage in
aggregate principal amount of the Notes specified in this Indenture in
connection with such action and subject to the following paragraph, any Holder
of a Note which is shown by the evidence to be included in the Notes the Holders
of which have consented to such action may, by filing written notice with the
Trustee at its Corporate Trust Office and upon proof of holding as provided in
Section 9.2, revoke such action so far as concerns such Note. Except as
aforesaid any such action taken by the Holder of any Note shall be conclusive
and binding upon such Holder and upon all future Holders and owners of such Note
and of any Note issued upon transfer thereof or in exchange or substitution
therefor, irrespective of whether or not any notation in regard thereto is made
upon such Note or such other Notes. Any action taken by the Holders of the
percentage in aggregate principal amount of the Notes specified in this
Indenture in connection with such action shall be conclusively binding upon the
Issuers, the Trustee and the Holders of all the Notes.
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The Issuers may, but shall not be obligated to, fix a record date for
the purpose of determining the Holders of Registered Notes entitled to give
their consent or take any other action required or permitted to be taken
pursuant to this Indenture. If a record date is fixed, then notwithstanding the
immediately preceding paragraph, those Persons who were Holders of Registered
Notes at such record date (or their duly designated proxies), and only those
Persons, shall be entitled to give such consent or to revoke any consent
previously given or to take any such action, whether or not such Persons
continue to be Holders of Registered Notes after such record date. No such
consent shall be valid or effective for more than 120 days after such record
date unless the consent of the Holders of the percentage in aggregate principal
amount of the Notes specified in this Indenture shall have been received within
such 120-day period.
ARTICLE X.
SUPPLEMENTAL INDENTURES
SECTION 10.1 PURPOSES FOR WHICH SUPPLEMENTAL INDENTURE MAY BE ENTERED
INTO WITHOUT CONSENT OF HOLDERS. The Issuers, when authorized by a resolution of
the Board of Directors, and the Trustee may from time to time and at any time,
without the consent of Holders, enter into an Indenture or Indentures
supplemental hereto (which shall conform to the provisions of the Trust
Indenture Act as in force at the date of the execution thereof) for one or more
of the following purposes:
(a) to evidence the succession pursuant to Article IV of
another Person to either of the Issuers, or successive successions, and
the assumption by the Successor Company (as defined in Section 4.1) of
the covenants, agreements and obligations of the Company or EOTT
Finance, as the case may be, in this Indenture and in the Notes;
(b) to surrender any right or power herein conferred upon the
Issuers, to add to the covenants of the Issuers such further covenants,
restrictions, conditions or provisions for the protection of the
Holders of all or any Notes as the Board of Directors shall consider to
be for the protection of the Holders of such Notes, and to make the
occurrence, or the occurrence and continuance, of a Default in any of
such additional covenants, restrictions, conditions or provisions a
Default or an Event of Default permitting the enforcement of all or any
of the several remedies provided in this Indenture; provided, that in
respect of any such additional covenant, restriction, condition or
provision such supplemental indenture may provide for a particular
period of grace after Default (which period may be shorter or longer
than that allowed in the case of other Defaults) or may provide for an
immediate enforcement upon such Default or may limit the remedies
available to the Trustee upon such Default or may limit the right of
the Holders of a majority in aggregate principal amount of Notes to
waive such default;
(c) to cure any ambiguity or to correct or supplement any
provision contained herein, in any supplemental Indenture or in any
Notes that may be defective or inconsistent with any other provision
contained herein, in any
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supplemental Indenture or in the Notes; to convey, transfer, assign,
mortgage or pledge any property to or with the Trustee, or to make such
other provisions in regard to matters or questions arising under this
Indenture as shall not adversely affect the interests of any Holders of
Notes;
(d) to modify or amend this Indenture in such a manner as to
permit the qualification of this Indenture or any Indenture
supplemental hereto under the Trust Indenture Act as then in effect,
except that nothing herein contained shall permit or authorize the
inclusion in any Indenture supplemental hereto of the provisions
referred to in Section 316(a)(2) of the Trust Indenture Act;
(e) to add to or change any of the provisions of this
Indenture to change or eliminate any restrictions on the payment of
principal of, or premium, if any, or interest on, Registered Notes;
provided that any such action shall not adversely affect the holders of
the Notes in any material respect;
(f) to comply with Article IV;
(g) to provide for the issuance of PIK Notes;
(h) to add Subsidiary Guarantees with respect to the Notes or
to secure the Notes; and
(i) to evidence and provide for the acceptance of appointment
hereunder by a successor Trustee with respect to the Notes.
The Trustee is hereby authorized to join with the Issuers in the
execution of any such supplemental Indenture, to make any further appropriate
agreements and stipulations which may be therein contained and to accept the
conveyance, transfer, assignment, mortgage or pledge of any property thereunder,
but the Trustee shall not be obligated to enter into any such supplemental
Indenture which affects the Trustee's own rights, duties or immunities under
this Indenture or otherwise.
Any supplemental Indenture authorized by the provisions of this Section
10.1 may be executed by the Issuers and the Trustee without the consent of the
Holders of Notes at the time Outstanding, notwithstanding any of the provisions
of Section 10.2.
After an amendment under this Section 10.1 becomes effective, the
Issuers shall mail to Holders of Notes affected thereby a notice briefly
describing such amendment. The failure to give such notice to all such Holders,
or any defect therein, shall not impair or affect the validity of an amendment
under this Section 10.1.
SECTION 10.2 MODIFICATION OF INDENTURE WITH CONSENT OF HOLDERS OF
NOTES. Without notice to any Holder but with the consent (evidenced as provided
in Section 9.1) of the Holders of not less than a majority in aggregate
principal amount of the Outstanding Notes, the Issuers, when authorized by a
resolution of their respective Board of Directors,
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and the Trustee, may from time to time and at any time enter into an Indenture
or Indentures supplemental hereto (which shall conform to the provisions of the
Trust Indenture Act as in force at the date of execution thereof) for the
purpose of adding any provisions to or changing in any manner or eliminating any
of the provisions of this Indenture or of any supplemental Indenture or of
modifying in any manner the rights of the Holders of the Notes; provided, that
no such supplemental Indenture, without the consent of the Holders of each Note
so affected, shall (i) reduce the percentage in principal amount of Notes whose
Holders must consent to an amendment; (ii) reduce the rate of or extend the time
for payment of interest on any Note; (iii) reduce the principal of or extend the
Stated Maturity of any Note; (iv) reduce the premium payable upon the redemption
of any Note or change the time at which any Note may or shall be redeemed in
accordance with Article III; (v) make any Note payable in currency other than
that stated in the Note; (vi) release any security that may have been granted in
respect of the Notes; or (vii) make any change in Section 7.4 or this Section
10.2.
Upon the request of the Issuers, accompanied by a copy of a resolution
of the Board of Directors authorizing the execution of any such supplemental
Indenture, and upon the filing with the Trustee of evidence of the consent of
Holders as aforesaid, the Trustee shall join with the Issuers in the execution
of such supplemental Indenture unless such supplemental Indenture affects the
Trustee's own rights, duties or immunities under this Indenture or otherwise, in
which case the Trustee may in its discretion but shall not be obligated to enter
into such supplemental Indenture.
It shall not be necessary for the consent of the Holders under this
Section 10.2 to approve the particular form of any proposed supplemental
indenture, but it shall be sufficient if such consent shall approve the
substance thereof.
After an amendment under this Section 10.2 becomes effective, the
Issuers shall mail to Holders of Notes a notice briefly describing such
amendment. The failure to give such notice to all such Holders, or any defect
therein, shall not impair or affect the validity of an amendment under this
Section 10.2.
SECTION 10.3 EFFECT OF SUPPLEMENTAL INDENTURES. Upon the execution of
any supplemental Indenture pursuant to the provisions of this Article X, this
Indenture shall be and be deemed to be modified and amended in accordance
therewith and the respective rights, limitations of rights, obligations, duties
and immunities under this Indenture of the Trustee, the Issuers and the Holders
shall thereafter be determined, exercised and enforced hereunder subject in all
respects to such modifications and amendments, and all the terms and conditions
of any such supplemental Indenture shall be and be deemed to be part of the
terms and conditions of this Indenture for any and all purposes.
The Trustee, subject to the provisions of Sections 8.1 and 8.2, may
receive an Officers' Certificate and an Opinion of Counsel as conclusive
evidence that any such supplemental Indenture complies with the provisions of
this Article X and that all conditions precedent have been satisfied.
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SECTION 10.4 NOTES MAY BEAR NOTATION OF CHANGES BY SUPPLEMENTAL
INDENTURES. Notes authenticated and delivered after the execution of any
supplemental indenture pursuant to the provisions of this Article X may, and
shall if required by the Trustee, bear a notation in form approved by the
Trustee as to any matter provided for in such supplemental Indenture. New Notes
so modified as to conform, in the opinion of the Trustee and the Board of
Directors, to any modification of this Indenture contained in any such
supplemental indenture may be prepared and executed by the Issuers,
authenticated by the Trustee and delivered in exchange for the Notes then
outstanding. Failure to make the appropriate notation or to issue a new Note
shall not affect the validity of such amendment.
ARTICLE XI.
LEGAL DEFEASANCE AND COVENANT DEFEASANCE
SECTION 11.1 OPTION TO EFFECT LEGAL DEFEASANCE OR COVENANT DEFEASANCE.
The Issuers may, at the option of the Board of Directors of the Issuers
evidenced by resolutions set forth in an Officers' Certificate, at any time,
elect to have either Section 11.2 or 11.3 hereof be applied to all Outstanding
Notes and Subsidiary Guarantees upon compliance with the conditions set forth
below in this Article XI.
SECTION 11.2 LEGAL DEFEASANCE AND DISCHARGE. Upon the Issuers' exercise
under Section 11.1 hereof of the option applicable to this Section 11.2, each of
the Issuers and the Subsidiary Guarantors shall, subject to the satisfaction of
the conditions set forth in Section 11.4 hereof, be deemed to have been
discharged from its obligations with respect to all Outstanding Notes and
Subsidiary Guarantees on the date the conditions set forth below are satisfied
(hereinafter, "LEGAL DEFEASANCE"). For this purpose, Legal Defeasance means that
each of the Issuers shall be deemed to have paid and discharged the entire
Indebtedness represented by the Outstanding Notes, which shall thereafter be
deemed to be "outstanding" only for the purpose of Section 11.5 hereof and the
other Sections of this Indenture referred to in (a) and (b) below, and to have
satisfied all its other obligations under such Notes and this Indenture, and
each of the Subsidiary Guarantors shall be deemed to have discharged its
obligations under its Subsidiary Guarantee (and the Trustee, on demand of and at
the expense of the Issuers, 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 11.4 hereof,
and as more fully set forth in such Section, payments in respect of the
principal of, premium on, if any, and interest on such Notes when such payments
are due, (b) the Issuers' obligations with respect to such Notes under Article
II and Section 5.2, (c) the rights, powers, trusts, duties and immunities of the
Trustee hereunder and the Issuers' obligations in connection therewith and (d)
this Article XI. Subject to compliance with this Article XI, the Issuers may
exercise their option under this Section 11.2 notwithstanding the prior exercise
of their option under Section 11.3 hereof.
A
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SECTION 11.3 COVENANT DEFEASANCE. Upon the Issuers' exercise under
Section 11.1 hereof of the option applicable to this Section 11.3, each if the
Issuers shall, subject to the satisfaction of the conditions set forth in
Section 11.4 hereof, be released from its obligations under the covenants
contained in Sections 5.11, 5.12, 5.13, 5.14, 5.15, 5.16, 5.17, 5.18, 5.19,
5.20, 5.21, 5.22, 5.23 and 5.24 hereof with respect to the Outstanding Notes on
and after the date the conditions set forth in Section 11.4 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 thereto) 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 Issuers may
omit to comply with and shall have no liability in respect of any term,
condition or limitation set forth in any such covenant, whether directly or
indirectly, by reason of any reference elsewhere herein to any such covenant or
by reason of any reference in any such covenant to any other provision herein or
in any other document and such omission to comply shall not constitute a Default
or an Event of Default under Section 7.1 hereof, but, except as specified above,
the remainder of this Indenture, the Subsidiary Guarantees and such Notes shall
be unaffected thereby. In addition, upon the Issuers' exercise under Section
11.1 hereof of the option applicable to this Section 11.3 hereof, subject to the
satisfaction of the conditions set forth in Section 11.4 hereof, Sections 7.1(e)
through 7.1(g) hereof shall not constitute Events of Default.
SECTION 11.4 CONDITIONS TO LEGAL OR COVENANT DEFEASANCE. The following
shall be the conditions to the application of either Section 11.2 or 11.3 hereof
to the Outstanding Notes:
In order to exercise either Legal Defeasance or Covenant Defeasance:
(a) the Issuers must irrevocably deposit with the Trustee, in trust,
for the benefit of the Holders, cash in United States dollars, non-callable U.S.
Government Obligations, or a combination thereof, in such amounts as will be
sufficient, in the opinion of a nationally recognized firm of independent public
accounts, to pay the principal of, premium on, if any, and interest on the
Outstanding Notes on the stated date for payment thereof or on the applicable
redemption date, as the case may be, and the Company shall specify whether the
Notes are being defeased to maturity or to a particular redemption date;
(b) in the case of an election under Section 11.2 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 Indenture, there has been a change in the
applicable federal income tax law, in either case to the effect that, and based
thereon such Opinion of Counsel shall confirm that, the Holders of the
Outstanding Notes will not recognize income, gain or loss for federal
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income tax purposes as a result of such Legal Defeasance and will be subject to
federal income tax on the same amounts, in the same manner and at the same times
as would have been the case if such Legal Defeasance had not occurred;
(c) in the case of an election under Section 11.3 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 or Event of Default shall have occurred and be
continuing on the date of such deposit (other than a Default or Event of Default
resulting from the Incurrence of Indebtedness all or a portion of the proceeds
of which will be used to defease the Notes pursuant to this Article XI
concurrently with such Incurrence) or insofar as Sections 7.01(i) or 7.01(j)
hereof is concerned, at any time in the period ending on the 91st day after the
date of deposit;
(e) such Legal Defeasance or covenant Defeasance shall not result in a
breach or violation of, or constitute a default under, any material agreement or
instrument (other than this Indenture) to which the Company or any of its
Restricted Subsidiaries is a party or by which the Company or any of its
Restricted Subsidiaries is bound;
(f) the Company shall have delivered to the Trustee an Opinion of
Counsel (which may be subject to customary exceptions) to the effect that on the
91st day following the deposit, the trust funds will not be subject to the
effect of any applicable bankruptcy, insolvency, reorganization or similar laws
affecting creditors' rights generally;
(g) the Company shall have delivered to the Trustee an Officers'
Certificate stating that the deposit was not made by the Company with the intent
of preferring the Holders over any other creditors of the Company or with the
intent of defeating, hindering, delaying or defrauding any other creditors of
the Company; and
(h) the Company shall have delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that all conditions
precedent provided for or relating to the Legal Defeasance or the Covenant
Defeasance have been complied with.
SECTION 11.5 DEPOSITED MONEY AND U.S. GOVERNMENT OBLIGATIONS TO BE HELD
IN TRUST; OTHER MISCELLANEOUS PROVISIONS. Subject to Section 11.6 hereof, all
money and non-callable U.S. Government Obligations (including the proceeds
thereof) deposited with the Trustee (or other qualifying trustee, collectively
for purposes of this Section 11.5, the "TRUSTEE") pursuant to Section 11.4
hereof in respect of the Outstanding Notes shall be held in trust and applied by
the Trustee, in accordance with the provisions of such Notes and this Indenture,
to the payment, either directly or through any Paying
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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 on, of any, and interest, but such
money need not be segregated from other funds except to the extent required by
law.
The Issuers shall pay and indemnify the Trustee against any tax, fee or
other charge imposed on or assessed against the cash or non-callable U.S.
Government Obligations deposited pursuant to Section 11.4 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 XI to the contrary notwithstanding, the
Trustee shall deliver or pay to the Company from time to time upon the written
request of the Company any money or non-callable U.S. Government Obligations
held by it as provided in Section 11.4 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 11.4(a) hereof), are in excess of the amount thereof
that would then be required to be deposited to effect an equivalent Legal
Defeasance or Covenant Defeasance.
SECTION 11.6 REPAYMENT TO ISSUERS. Any money deposited with the Trustee
or any Paying Agent, or then held by the Issuers, in trust for the payment of
the principal of, premium on, 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 written request
or (if then held by the Company) shall be discharged from such trust, and the
Holder of such Note shall thereafter, as a secured creditor, look only to the
Issuers for payment thereof, and all liability of the Trustee or such Paying
Agent with respect to such trust money, and all liability of the Company as
trustee thereof, shall thereupon cease; provided, however, that the Trustee or
such Paying Agent, before being required to make any such repayment, may at the
expense of the Issuers cause to be published once, in the New York Times and The
Wall Street Journal (national edition), notice that such money remains unclaimed
and that, after a date specified therein, which shall not be less than 30 days
from the date of such notification or publication, any unclaimed balance of such
money then remaining will be repaid to the Company.
SECTION 11.7 REINSTATEMENT. If the Trustee or Paying Agent is unable to
apply any United States dollars or non-callable U.S. Government Obligations in
accordance with Section 11.2 or 11.3 hereof, as the case may be, by reason of
any order or judgment of any court or governmental authority enjoining,
restraining or otherwise prohibiting such application, then the Issuers'
obligations under this Indenture and the Notes and the Subsidiary Guarantors'
obligations under the Subsidiary Guarantees shall be revived and reinstated as
though no deposit had occurred pursuant to Section 11.2 or 11.3 hereof until
such time as the Trustee or Paying Agent is permitted to apply such money in
accordance with Section 11.2 or 11.3 hereof, as the case may be; provided,
however, that, if the Issuers make any payment of principal of, premium on, if
any, or interest on any Note
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following the reinstatement of their obligations, the Issuers 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 XII.
SUBSIDIARY GUARANTEES
SECTION 12.1 SUBSIDIARY GUARANTEES. Each Subsidiary Guarantor hereby
jointly and severally unconditionally and irrevocably guarantees (the
"SUBSIDIARY GUARANTEES") to each Holder and to the Trustee and its successors
and assigns (a) the full and punctual payment of principal of and interest on
the Notes when due, whether at maturity, by acceleration, by redemption or
otherwise, and all other monetary obligations of the Issuers under this
Indenture (including obligations to the Trustee) and the Notes and (b) the full
and punctual performance within applicable grace periods of all other
obligations of the Issuers under this Indenture and the Notes (all the foregoing
being hereinafter collectively called the "NOTE OBLIGATIONS"). Each Subsidiary
Guarantor further agrees that the Note Obligations may be extended or renewed,
in whole or in part, without notice or further assent from each such Subsidiary
Guarantor, and that each such Subsidiary Guarantor shall remain bound under this
Article XII notwithstanding any extension or renewal of any Note Obligation.
Each Subsidiary Guarantor waives presentation to, demand of, payment
from and protest to the Issuers of any of the Note Obligations and also waives
notice of protest for nonpayment. Each Subsidiary Guarantor waives notice of any
default under the Notes or the Note Obligations. The obligations of each
Subsidiary Guarantor hereunder shall not be affected by (a) the failure of any
Holder or the Trustee to assert any claim or demand or to enforce any right or
remedy against the Issuers or any other Person under this Indenture, the Notes
or any other agreement or otherwise; (b) any extension or renewal of any
thereof; (c) any rescission, waiver, amendment or modification of any of the
terms or provisions of this Indenture, the Notes or any other agreement; (d) the
release of any Note held by any Holder or the Trustee for the Note Obligations
or any of them; (e) the failure of any Holder or Trustee to exercise any right
or remedy against any other guarantor of the Note Obligations; or (f) any change
in the ownership of such Subsidiary Guarantor, except as provided in Section
12.2(b) hereof.
Each Subsidiary Guarantor further agrees that its Subsidiary Guarantee
herein constitutes a guarantee of payment, performance and compliance when due
(and not a guarantee of collection) and waives any right to require that any
resort be had by any Holder or the Trustee to any Note held for payment of the
Note Obligations.
The obligations of each Subsidiary Guarantor hereunder shall not be
subject to any reduction, limitation, impairment or termination for any reason,
including any claim of waiver, release, surrender, alteration or compromise, and
shall not be subject to any defense of setoff, counterclaim, recoupment or
termination whatsoever or by reason of the invalidity, illegality or
unenforceability of the Note Obligation or otherwise. Without
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limiting the generality of the foregoing, the obligations of each Subsidiary
Guarantor herein shall not be discharged or impaired or otherwise affected by
the failure of any Holder or the Trustee to assert any claim or demand or to
enforce any remedy under this Indenture, the Note or any other agreement, by any
waiver or modification of any thereof, by any default, failure or delay, willful
or otherwise, in the performance of the obligations, or by any other act or
thing or omission or delay to do any other act or thing which may or might in
any manner or to any extent vary the risk of any Subsidiary Guarantor or would
otherwise operate as a discharge of any Subsidiary Guarantor as a matter of law
or equity.
Each Subsidiary Guarantor further agrees that its Subsidiary Guarantee
herein shall continue to be effective or be reinstated, as the case may be, if
at any time payment, or any part thereof, of principal of or interest on any
Note Obligation is rescinded or must otherwise be restored by any Holder or the
Trustee upon the bankruptcy or reorganization of either of the Issuers or
otherwise.
In furtherance of the foregoing and not in limitation of any other
right which any Holder or the Trustee has at law or in equity against any
Subsidiary Guarantor by virtue hereof, upon the failure of the Issuers to pay
the principal of or interest on any Note Obligation when and as the same shall
become due, whether at maturity, by acceleration, by redemption or otherwise, or
to perform or comply with any other Note Obligation, each Subsidiary Guarantor
hereby promises to and shall forthwith pay, or cause to be paid, in cash, to the
Holders or the Trustee an amount equal to the sum of (i) the unpaid principal
amount of such Note Obligations, (ii) accrued and unpaid interest on such Note
Obligations (but only to the extent not prohibited by law) and (iii) all other
monetary Note Obligations of the Issuers to the Holders and the Trustee.
Each Subsidiary Guarantor agrees that it shall not be entitled to any
right of subrogation in relation to the Holders in respect of any Note
Obligations guaranteed hereby until payment in full of all Note Obligations.
Each Subsidiary Guarantor further agrees that, as between it, on the one hand,
and the Holders and the Trustee, on the other hand, (x) the maturity of the Note
Obligations guaranteed hereby may be accelerated as provided in Article VII
hereof for the purposes of any Subsidiary Guarantor's Subsidiary Guarantee
herein, notwithstanding any stay, injunction or other prohibition preventing
such acceleration in respect of the Note Obligations guaranteed hereby, and (y)
in the event of any declaration of acceleration of such obligations as provided
in Article VII hereof, such Note Obligations (whether or not due and payable)
shall forthwith become due and payable by such Subsidiary Guarantor for the
purposes of this Section.
Each Subsidiary Guarantor also agrees to pay any and all costs and
expenses (including reasonable attorneys' fees and expenses) incurred by the
Trustee or any Holder in enforcing any rights under this Section.
SECTION 12.2 LIMITATION ON LIABILITY. (a) any term or provision of this
Indenture to the contrary notwithstanding, the maximum, aggregate amount of the
Note Obligations guaranteed hereunder by any Subsidiary Guarantor shall not
exceed the maximum amount
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that can be hereby guaranteed without rendering this Indenture, as it relates to
any Subsidiary Guarantor, voidable under applicable law relating to fraudulent
conveyance or fraudulent transfer.
(b) This Subsidiary Guarantee as to any Subsidiary Guarantor
shall terminate and be of no further force or effect upon the sale or
other transfer (i) by such Subsidiary Guarantor of all of its assets or
(ii) by the Company, directly or indirectly of all of its Equity
Interests in such Subsidiary Guarantor, to a Person that is not an
Affiliate of the Issuers, in each case in accordance with the
provisions of Article IV hereof, provided, however, that such sale or
transfer shall be deemed to constitute an Asset Sale and the Issuer
shall comply with their obligations under Section 5.14 hereof.
SECTION 12.3 SUCCESSORS AND ASSIGNS. This Article XII shall be binding
upon each Subsidiary Guarantor and, except as provided in Section 12.2(b), its
successors and assigns and shall enure to the benefit of the successors and
assigns of the Trustee and the Holders and, in the event of any transfer or
assignment of rights by any Holder or the Trustee, the rights and privileges
conferred upon that party in this Indenture and in the Notes shall automatically
extend to and be vested in such transferee or assignee, all subject to the terms
and conditions of this Indenture.
SECTION 12.4 NO WAIVER. Neither a failure nor a delay on the part of
either the Trustee or the Holders in exercising any right, power or privilege
under this Article XII shall operate as a waiver thereof, nor shall a single or
partial exercise thereof preclude any other or further exercise of any right,
power or privilege. The rights, remedies and benefits of the Trustee and the
Holders herein expressly specified are cumulative and not exclusive of any other
rights, remedies or benefits which either may have under this Article XII at
law, in equity, by statute or otherwise.
SECTION 12.5 MODIFICATION. No modification, amendment or waiver of any
provision of this Article XII, nor the consent to any departure by any
Subsidiary Guarantor therefrom, shall in any event be effective unless the same
shall be in writing and signed by the Trustee, and then such waiver or consent
shall be effective only in the specific instance and for the purpose for which
given. No notice to or demand on any Subsidiary Guarantor in any case shall
entitle such Subsidiary Guarantor to any other or further notice or demand in
the same, similar or other circumstances.
SECTION 12.6 EXECUTION OF SUPPLEMENTAL INDENTURE FOR FUTURE SUBSIDIARY
GUARANTORS. Each Subsidiary which is required to become a Subsidiary Guarantor
pursuant to Section 5.20 hereof shall promptly execute and deliver to the
Trustee a supplemental indenture in the form of Exhibit E hereto pursuant to
which such Subsidiary shall become a Subsidiary Guarantor under this Article XII
and shall guarantee the Note Obligations. Concurrently with the execution and
delivery of such supplemental indenture, the Issuers shall deliver to the
Trustee an Opinion of Counsel to the effect that such supplemental indenture has
been duly authorized, executed and delivered by such Subsidiary and that,
subject to the application of bankruptcy, insolvency, moratorium,
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fraudulent conveyance or transfer and other similar laws relating to creditors'
rights generally and to the principals of equity, whether considered in a
proceeding at law or in equity, the Subsidiary Guarantee of such Subsidiary
Guarantor is a legal, valid and binding obligation of such Subsidiary Guarantor,
enforceable against such Subsidiary Guarantor in accordance with its terms.
ARTICLE XIII.
MISCELLANEOUS PROVISIONS
SECTION 13.1 SUCCESSORS AND ASSIGNS OF ISSUERS BOUND BY INDENTURE. All
the covenants, stipulations, promises and agreements in this Indenture contained
by or in behalf of the Company, EOTT Finance or the Trustee shall bind its
successors and assigns, whether so expressed or not.
SECTION 13.2 ACTS OF BOARD, COMMITTEE OR OFFICER OF SUCCESSOR COMPANY
VALID. Any act or proceeding by any provision of this Indenture authorized or
required to be done or performed by any board, committee or officer of the
Issuers shall and may be done and performed with like force and effect by the
like board, committee or officer of any Successor Company.
SECTION 13.3 REQUIRED NOTICES OR DEMANDS. Except as otherwise expressly
provided in this Indenture, any notice or demand which by any provision of this
Indenture is required or permitted to be given or served by the Trustee or by
the Holders to or on the Issuers may be given or served by being deposited
postage prepaid in a post office letter box in the United States addressed
(until another address is filed by the Issuers with the Trustee) as follows:
EOTT Energy LLC, ▇▇▇▇ ▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇, ▇▇
▇▇▇▇▇, Attention: Chief Financial Officer. Except as otherwise expressly
provided in this Indenture, any notice, direction, request or demand by the
Issuers or by any Holder to or upon the Trustee may be given or made, for all
purposes, by being deposited, postage prepaid, in a post office letter box in
the United States addressed to the Corporate Trust Office of the Trustee. The
Issuers or the Trustee by written notice to the other may designate additional
or different addresses for subsequent notices or communications.
Any notice required or permitted to a Registered Holder by the Issuers
or the Trustee pursuant to the provisions of this Indenture shall be deemed to
be properly mailed by being deposited postage prepaid in a post office letter
box in the United States addressed to such Holder at the address of such Holder
as shown on the Note Register. Any report pursuant to Section 313 of the Trust
Indenture Act shall be transmitted in compliance with subsection (c) therein.
In the event of suspension of regular mail service or by reason of any
other cause it shall be impracticable to give notice by mail, then such
notification as shall be given with the approval of the Trustee shall constitute
sufficient notice for every purpose thereunder.
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Failure to mail a notice or communication to a Holder or any defect in
it or any defect in any notice by publication as to a Holder shall not affect
the sufficiency of such notice with respect to other Holders. If a notice or
communication is mailed or published in the manner provided above, it is
conclusively presumed duly given.
SECTION 13.4 INDENTURE AND NOTES TO BE CONSTRUED IN ACCORDANCE WITH THE
LAWS OF THE STATE OF NEW YORK. This Indenture and each Note shall be deemed to
be New York contracts, and for all purposes shall be construed in accordance
with the laws of said State (without reference to principles of conflicts of
law).
SECTION 13.5 OFFICERS' CERTIFICATE AND OPINION OF COUNSEL TO BE
FURNISHED UPON APPLICATION OR DEMAND BY THE ISSUERS. Upon any application or
demand by the Issuers to the Trustee to take any action under any of the
provisions of this Indenture, the Issuers shall furnish to the Trustee an
Officers' Certificate stating that all conditions precedent provided for in this
Indenture relating to the proposed action have been complied with and an Opinion
of Counsel stating that, in the opinion of such counsel, all such conditions
precedent have been complied with, except that in the case of any such
application or demand as to which the furnishing of such document is
specifically required by any provision of this Indenture relating to such
particular application or demand, no additional certificate or opinion need be
furnished.
Each certificate or opinion provided for in this Indenture and
delivered to the Trustee with respect to compliance with a condition or covenant
provided for in this Indenture shall include (1) a statement that the Person
making such certificate or opinion has read such covenant or condition, (2) a
brief statement as to the nature and scope of the examination or investigation
upon which the statements or opinions contained in such certificate or opinion
are based, (3) a statement that, in the opinion of such Person, he has made such
examination or investigation as is necessary to enable him to express an
informed opinion as to whether or not such covenant or condition has been
complied with and (4) a statement as to whether or not, in the opinion of such
Person, such condition or covenant has been complied with.
SECTION 13.6 PAYMENTS DUE ON LEGAL HOLIDAYS. In any case where the date
of maturity of interest on or principal of and premium, if any, on the Notes or
the date fixed for redemption or repayment of any Note shall not be a business
day then payment of interest or principal and premium, if any, need not be made
on such date but may be made on the next succeeding business day with the same
force and effect as if made on the date of maturity or the date fixed for
redemption, and no interest shall accrue for the period after such date. If a
record date is not a business day, the record date shall not be affected.
SECTION 13.7 PROVISIONS REQUIRED BY TRUST INDENTURE ACT TO CONTROL. If
and to the extent that any provision of this Indenture limits, qualifies or
conflicts with another provision included in this Indenture which is required to
be included in this Indenture by
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any of Sections 310 to 318, inclusive, of the Trust Indenture Act, such required
provision shall control.
SECTION 13.8 COMPUTATION OF INTEREST ON NOTES. Interest, if any, on the
Notes shall be computed on the basis of a 360-day year of twelve 30-day months.
SECTION 13.9 RULES BY TRUSTEE, PAYING AGENT AND REGISTRAR. The Trustee
may make reasonable rules for action by or a meeting of Holders. The Registrar
and any Paying Agent may make reasonable rules for their functions.
SECTION 13.10 NO RECOURSE AGAINST OTHERS. An incorporator or any past,
present or future director, officer, partner, employee, stockholder, unitholder
or member, as such, of the Issuers or any Subsidiary Guarantor shall not have
any liability for any obligations of the Issuers under the Notes, this Indenture
or any Subsidiary Guarantees or for any claim based on, in respect of, or by
reason of, such obligations or their creation. By accepting a Note, each Holder
shall waive and release all such liability. The waiver and release shall be part
of the consideration for the issue of the Notes.
SECTION 13.11 SEVERABILITY. In case any provision in this Indenture or
the Notes shall be invalid, illegal or unenforceable, the validity, legality and
enforceability of the remaining provisions shall not in any way be affected or
impaired thereby.
SECTION 13.12 EFFECT OF HEADINGS. The article and section headings
herein and in the Table of Contents are for convenience only and shall not
affect the construction hereof.
SECTION 13.13 INDENTURE MAY BE EXECUTED IN COUNTERPARTS. This Indenture
may be executed in any number of counterparts, each of which shall be an
original; but such counterparts shall together constitute but one and the same
instrument.
The Trustee hereby accepts the trusts in this Indenture upon the terms and
conditions herein set forth.
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IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be
duly executed, all as of the day and year first above written.
ISSUERS:
EOTT ENERGY LLC
By:
---------------------------------------
Name:
--------------------------------
Title:
-------------------------------
EOTT ENERGY FINANCE CORP.
By:
---------------------------------------
Name:
--------------------------------
Title:
-------------------------------
TRUSTEE:
THE BANK OF NEW YORK
By:
---------------------------------------
Name:
--------------------------------
Title:
-------------------------------
SUBSIDIARY GUARANTORS
EOTT ENERGY PARTNERS, L.P.
By: EOTT Energy General Partner, L.L.C.,
its general partner
By:
---------------------------------------
Name:
--------------------------------
Title:
-------------------------------
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EOTT ENERGY GENERAL PARTNER, L.L.C.
By:
---------------------------------------
Name:
--------------------------------
Title:
-------------------------------
EOTT ENERGY OPERATING LIMITED PARTNERSHIP
By: EOTT Energy General Partner, L.L.C.,
its general partner
By:
---------------------------------------
Name:
--------------------------------
Title:
-------------------------------
EOTT ENERGY PIPELINE LIMITED PARTNERSHIP
By: EOTT Energy General Partner, L.L.C.,
its general partner
By:
---------------------------------------
Name:
--------------------------------
Title:
-------------------------------
EOTT ENERGY CANADA LIMITED PARTNERSHIP
By: EOTT Energy General Partner, L.L.C.,
its general partner
By:
---------------------------------------
Name:
--------------------------------
Title:
-------------------------------
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EOTT ENERGY LIQUIDS L.P.
By: EOTT Energy General Partner, L.L.C.,
its general partner
By:
---------------------------------------
Name:
--------------------------------
Title:
-------------------------------
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EXHIBIT A
(Face of Note)
================================================================================
CUSIP _______________ No. 1
9% Senior Notes due 2010 $104,000,000
EOTT ENERGY LLC
EOTT ENERGY FINANCE CORP.
jointly and severally promises to pay to
Cede & Co., or registered assigns,
the principal sum of
One Hundred Four Million Dollars
on March 1, 2010.
Interest Payment Dates: September 1st and March 1st
Record Dates: August 15th and February 15th
EOTT ENERGY LLC
By:
---------------------------------
Name:
-------------------------------
Title:
------------------------------
By:
---------------------------------
Name:
-------------------------------
Title:
------------------------------
This is one of the
EOTT ENERGY FINANCE CORP.
Notes referred to in the
within-mentioned Indenture:
By:
---------------------------------
Dated: March 1, 2003 Name:
-------------------------------
Title:
------------------------------
The Bank of New York,
as Trustee
By:
---------------------------------
Name:
-------------------------------
By: Title:
------------------------------ ------------------------------
Authorized Signatory
================================================================================
A-1
(Back of Note)
9% Senior Notes due 2009
Capitalized terms used herein shall have the meanings assigned to them in the
Indenture referred to below unless otherwise indicated.
1. Interest. Each of EOTT Energy LLC, a Delaware limited liability
company (the "COMPANY"), and
EOTT Energy Finance Corp., a Delaware corporation
("EOTT FINANCE" and together with the Company, the "ISSUERS"), jointly and
severally promises to pay interest on the principal amount of this Note at 9%
per annum from March 1, 2003 until maturity. The Issuers will pay interest
semi-annually on September 1st and March 1st of each such year, or if any such
day is not a business day, on the next succeeding business day (each an
"INTEREST PAYMENT DATE"). The Company, in its sole discretion, may pay up to
$10,660,000 in interest due on the first two Interest Payment Dates in kind by
issuing PIK Notes in lieu of paying cash. Payments of interest in kind (rather
than cash) by issuance of PIK Notes shall be at an assumed interest rate of 10%
per annum. For the avoidance of doubt, for example, the Company may issue $5.2
million in aggregate principal amount of PIK Notes in lieu of paying $4.68
million of interest in cash on the first Interest Payment Date and $5.46 million
in aggregate principal amount of PIK Notes in lieu of paying $4.914 million of
interest in cash on the second 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
September 1, 2003. The Issuers 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. In addition, the Issuers shall pay interest
(including post-petition interest in any proceeding under any Bankruptcy Law) on
overdue installments of interest (without regard to any applicable grace
periods) from time to time on demand at the same rate to the extent lawful.
Interest will be computed on the basis of a 360-day year of twelve 30-day
months.
2. Method of Payment. The Issuers will pay interest on the Notes
(except Defaulted Interest) to the Persons who are registered Holders of Notes
at the close of business on August 15th or February 15th 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 2.14
of the Indenture with respect to Defaulted Interest. The Notes will be payable
as to principal, premium, if any, and interest at the office or agency of the
Issuers maintained for such purpose within or without The City and State of New
York, or, at the option of the Issuers, payment of 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
A-2
with respect to principal of and interest, premium on, the Global Note and all
other Notes the Holders of which shall have provided wire transfer instructions
to the Issuers or the Paying Agent on or prior to the applicable record 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.
3. Paying Agent and Registrar. Initially, The Bank of New York, the
Trustee under the Indenture, will act as Paying Agent and Registrar. The Issuers
may change any Paying Agent or Registrar without notice to any Holder. The
Issuers or any of their Subsidiaries may act in any such capacity.
4. Indenture. The Issuers issued the Notes under an Indenture dated as
of March 1, 2003 (the "INDENTURE"), between the Trustee, the Issuers, EOTT
Energy Partners, L.P., a Delaware limited partnership ("EPLP"), EOTT Energy
General Partner, L.L.C., a Delaware limited liability company ("EOTT GP LLC"),
EOTT Energy Operating Limited Partnership, a Delaware limited partnership
("OLP"), EOTT Energy Pipeline Limited Partnership, a Delaware limited
partnership ("PLP"), EOTT Energy Canada Limited Partnership, a Delaware limited
partnership ("CLP"), EOTT Energy Liquids, L.P. ("ELP" and, together with EPLP,
EOTT GP LLC, OLP, PLP and CLP, the "SUBSIDIARY GUARANTORS"). 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 77 aaa-77bbbb). The Notes are subject to all such terms, and Holders
are referred to the Indenture and such Act for a statement of such terms. To the
extent any provision of this Note conflicts with the express provisions of the
Indenture, the provisions of the Indenture shall govern and be controlling. The
Notes are joint and several obligations of the Issuers initially in aggregate
principal amount of $104.0 million. The Issuers are permitted to issue up to an
additional $10.25 million in aggregate principal amount of PIK Notes under the
Indenture to pay interest due on the first two Interest Payment Dates. Any such
PIK Notes that are actually issued will be treated as issued and outstanding
Notes (and as the same class as the Notes initially issued hereunder) for all
purposes of the Indenture, unless the context clearly indicates otherwise. To
secure the due and punctual payment of the principal and interest on the Notes
and all other accounts payable by the Issuers under the Indenture and the Notes
when and as the same shall be due and payable, whether at maturity, by
acceleration or otherwise, according to the terms of the Notes and the
Indenture, the Subsidiary Guarantors have unconditionally guaranteed the Note
Obligations under the Indenture and the Notes pursuant to the terms of the
Indenture.
5. Optional Redemption. The Issuers shall not have the option to redeem
the Notes prior to maturity.
6. Mandatory Redemption. Except as set forth in paragraph 7 below, the
Issuers shall not be required to make mandatory redemption or sinking fund
payments with respect to the Notes.
▇-▇
▇. ▇▇▇▇▇▇▇▇▇▇ at Option of Holder. (a) If there is a Change of Control,
the Issuers shall be required to make an offer (a "CHANGE OF CONTROL OFFER") to
repurchase all or any part (equal to $1.00 or an integral multiple thereof) of
each Holder's Notes at a purchase price equal to 101% of the aggregate principal
amount thereof plus accrued and unpaid interest thereon, if any, to the date of
purchase (the "CHANGE OF CONTROL PAYMENT"). Within 30 days following any Change
of Control, the Issuers shall mail a notice to each Holder setting forth the
procedures governing the Change of Control Offer as required by the Indenture.
(b) If either of the Issuers or a Restricted Subsidiary of the Company
consummates any Asset Sales, when the aggregate amount of Excess Proceeds
exceeds $10.0 million, the Issuers shall commence an offer to all Holders of
Notes and all holders of other Indebtedness that is pari passu with the Notes
containing similar asset sale provisions (as "ASSET SALE OFFER") pursuant to
Section 3.3 of the Indenture to purchase the maximum principal amount of Notes
and such other pari passu Indebtedness that may be purchased out of the Excess
Proceeds at an offer price in cash in an amount equal to 100% of the principal
amount thereof plus accrued and unpaid interest thereon, if any, to the date
fixed for the closing of such offer, in accordance with the procedures set forth
in the Indenture. To the extent that the aggregate amount of Notes tendered
pursuant to an Asset Sale Offer is less than the Excess Proceeds, the Company
may use such deficiency for any purpose not otherwise prohibited by the
Indenture. If the aggregate amount of Notes and other pari passu Indebtedness
surrendered by Holders thereof exceeds the amount of Excess Proceeds, the
Trustee shall select the Notes and such other pari passu Indebtedness to be
purchased on a pro rata basis. Holders of Notes that are the subject of an offer
to purchase will receive an Asset Sale Offer from the Issuers prior to any
related purchase date and may elect to have such Notes purchased by completing
the form entitled "OPTION OF HOLDER TO ELECT PURCHASE" on the reverse of the
Notes.
8. Notice of Redemption. Notice of redemption will be mailed at least
30 days but not more than 60 days before the redemption date to each Holder
whose Notes are to be redeemed at its registered address. Notes in denominations
larger than $1.00 may be redeemed in part but only in whole multiples of $1.00,
unless all of the Notes held by a Holder are to be redeemed. On and after the
redemption date interest ceases to accrue on Notes or portions thereof called
for redemption.
9. Denominations, Transfer, Exchange. The Notes are in registered form
without coupons in denominations of $1.00 and integral multiples of $1.00. 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
Issuers may require a Holder to pay any taxes and fees required by law or
permitted by the Indenture. The Issuers 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 Issuers
need not exchange or register the transfer of any Notes for a period of 15 days
before a selection of Notes to be redeemed or during the period between a record
date and the corresponding Interest Payment Date.
A-4
10. Persons Deemed Owners. The registered Holder of a Note may be
treated as its owner for all purposes.
11. Amendment, Supplement and Waiver. Subject to certain exceptions,
the Indenture or the Notes may be amended or supplemented with the consent of
the Holders of at least a majority in principal amount of the then outstanding
Notes, and any existing default or compliance with any provision of the
Indenture or the Notes may be waived with the consent of the Holders of a
majority in aggregate principal amount of the then outstanding Notes. Without
the consent of any Holder of a Note, the Indenture or the Notes may be amended
or supplemented to evidence the succession of another Person to either of the
Issuers or otherwise comply with Article IV of the Indenture, to surrender any
right or power conferred upon the Issuers or add to the covenants of the Issuers
for the protection of the Holders, to cure any ambiguity, defect, or
inconsistency, to make such other provisions in regard to matters or questions
arising under this Indenture as shall not adversely affect the interests of any
Holders of Notes, to effect or maintain the qualification of the Indenture under
the Trust Indenture Act, to change or eliminate any restrictions on the payment
of principal of, or premium, if any, or interest on, Registered Notes, to
provide for the issuance of PIK Notes, to add Subsidiary Guarantees with respect
to the Notes or to secure the Notes, or to evidence or provide for the
acceptance of appointment under the Indenture of a successor Trustee.
12. Defaults and Remedies. Events of Default include: (i) default for
30 days in the payment when due of interest 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 (including in connection
with an offer to purchase) or otherwise, (iii) failure by the Company or any of
its Subsidiaries to comply with any of the provisions of Section 5.14 or 5.19 or
Article IV of the Indenture; (iv) failure by the Company or any of its
Restricted Subsidiaries to comply for 30 days after notice to the Issuers by the
Trustee or the Holders of at least 25% in aggregate principal amount of the
Notes then outstanding voting as a single class with any of the provisions of
Section 5.12 of the Indenture; (v) failure by the Company or any of its
Restricted Subsidiaries to comply for 60 days after notice to the Issuers by the
Trustee or the Holders of at least 25% in aggregate principal amount of the
Notes then outstanding with any other agreements in the Indenture or the Notes;
(vi) default under certain other agreements relating to Indebtedness of an
Issuer or any of the Company's Restricted Subsidiaries which default results in
the acceleration of such Indebtedness prior to its express maturity; (vii)
certain final judgments for the payment of money that remain undischarged for a
period of 60 days; (viii) except as permitted by the Indenture, any Subsidiary
Guarantee shall be held in any judicial proceedings to be unenforceable or
invalid or shall cease for any reason to be in full force and effect or any
Subsidiary Guarantor, or any Person acting on behalf of any Subsidiary
Guarantor, shall deny or disaffirm its obligations under the Indenture or any
Subsidiary Guarantee and (ix) certain events of bankruptcy or insolvency with
respect to the Company or any of its Restricted Subsidiaries. If any Event of
Default occurs and is continuing, the Trustee or the Holders
A-5
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 become due and payable without further action or notice.
Holders may not enforce the Indenture or the Notes except as provided in the
Indenture. Subject to certain limitations, Holders of a majority in principal
amount of the then outstanding Notes may direct the Trustee in its exercise of
any trust or power. The Trustee may withhold from Holders of the Notes notice of
any continuing Default or Event of Default (except a Default or Event of Default
relating to the payment of principal or interest) if it determines that
withholding notice is in their interest. The Holders of a majority in aggregate
principal amount of the Notes then outstanding by notice to the Trustee may on
behalf of the Holders of all of the Notes waive any existing Default or Event of
Default and its consequences under the Indenture except a continuing Default or
Event of Default in the payment of interest on, or the principal of, the Notes.
The Issuers and the Subsidiary Guarantors are required to deliver to the Trustee
annually a statement regarding compliance with the Indenture, and the Issuers
are required upon becoming aware of any Default or Event of Default, to deliver
to the Trustee a statement specifying such Default or Event of Default.
13. Trustee Dealings with Issuers. The Trustee, in its individual or
any other capacity, may make loans to, accept deposits from, and perform
services for the Issuers or their Affiliates, and may otherwise deal with the
Issuers or their Affiliates, as if it were not the Trustee.
14. No Recourse Against Others. A past, present or future director,
officer, partner, employee, incorporator, stockholder, unitholder or member of
the Issuers or any Subsidiary Guarantor, as such, shall not have any liability
for any obligations of the Issuers or the Subsidiary Guarantors under the Notes,
the Indenture, the Subsidiary Guarantees or for any claim based on, in respect
of, or by reason of, such obligations or their creation. Each Holder of 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.
15. Authentication. This Note shall not be valid until authenticated by
the manual signature of the Trustee or an authenticating agent.
16. Abbreviations. Customary abbreviations may be used in the name of a
Holder or an assignee, such as: TEN COM (= tenants in common), TEN NET (=
tenants by the entireties), JT TEN (= joint tenants with right of survivorship
and not as tenants in common), CUST (= Custodian), and U/G/M/A (= Uniform Gifts
to Minors Act).
17. CUSIP Numbers. Pursuant to a recommendation promulgated by the
Committee on Uniform Security Identification Procedures, the Issuers have 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
A-6
redemption and reliance may be placed only on the other identification numbers
placed thereon.
The Issuers will furnish to any Holder upon written request and without
charge a copy of the Indenture. Requests may be made to:
EOTT Energy LLC
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Attention: Corporate Secretary
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ASSIGNMENT FORM
To assign this Note, fill in the form below: (I) or (we) assign and transfer
this Note to
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(Insert assignee's soc. sec. or tax I.D. no.)
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(Print or type assignee's name, address and zip code)
and irrevocably appoint ______________________________________________________
to transfer this Note on the books of the Issuers. The agent may substitute
another to act for him.
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Date:
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Your Signature:
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(Sign exactly as your name appears on the face of the Note)
Tax Identification No:
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Signature Guarantee.
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OPTION OF HOLDER TO ELECT PURCHASE
If you want to elect to have this Note purchased by the Issuers
pursuant to Section 5.14 or 5.19 of the Indenture, check the box below:
[ ] Section 5.14 [ ] Section 5.19
If you want to elect to have only part of the Note purchased by the
Issuers pursuant to Section 5.14 or Section 5.19 of the Indenture, state the
amount you elect to have purchased: $ ____________________.
Date:
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Your Signature:
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(Sign exactly as your name appears on the face of the Note)
Tax Identification No:
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Signature Guarantee.
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SCHEDULE OF INCREASES OR DECREASES IN THE GLOBAL NOTE
The following increases or decreases in this Global Note,
have been made:
Principal Amount
Amount of Amount of of Signature of
decrease in increase in this Global Note authorized
Principal Principal Amount following such officer of
Date of Amount of of decrease Trustee or Note
Exchange this Global Note this Global Note (or increase) Custodian
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EXHIBIT B
FORM OF LEGEND FOR GLOBAL NOTES
Any Global Note authenticated and delivered hereunder shall bear a
legend in addition to the Transfer Restricted Note Legend, if required by
Section 2.15 hereof, in substantially the following form:
THIS NOTE IS A GLOBAL NOTE WITHIN THE MEANING OF THE INDENTURE
HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF A DEPOSITORY
OR A NOMINEE OF A DEPOSITORY OR A SUCCESSOR DEPOSITORY. THIS NOTE IS
NOT EXCHANGEABLE FOR NOTES REGISTERED IN THE NAME OF A PERSON OTHER
THAN THE DEPOSITORY OF ITS NOMINEE EXCEPT IN THE LIMITED CIRCUMSTANCES
DESCRIBED IN THE INDENTURE, AND NO TRANSFER OF THIS NOTE (OTHER THAN A
TRANSFER OF THIS NOTE AS A WHOLE BY THE DEPOSITORY TO A NOMINEE OF THE
DEPOSITORY OR BY A NOMINEE OF THE DEPOSITORY TO THE DEPOSITORY OR
ANOTHER NOMINEE OF THE DEPOSITORY) MAY BE REGISTERED EXCEPT IN THE
LIMITED CIRCUMSTANCES DESCRIBED IN THE INDENTURE.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED
REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION
("DTC"), TO THE ISSUER OR ITS AGENT FOR REGISTRATION OF TRANSFER,
EXCHANGE, OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE
NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN
AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO.
OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE
OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED
OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
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EXHIBIT C
TRANSFER RESTRICTED NOTES LEGEND
"THE NOTES REPRESENTED BY THIS CERTIFICATE ARE OWNED BY AN UNDERWRITER AS
DEFINED BY SECTION 1145 OF TITLE 11, U.S. CODE, AND MAY NOT BE SOLD, OFFERED FOR
SALE, TRANSFERRED, PLEDGED OR HYPOTHECATED UNLESS (I) THE SALE, TRANSFER, PLEDGE
OR HYPOTHECATION OF SUCH NOTES IS REGISTERED UNDER THE SECURITIES ACT OF 1933,
(II) THERE IS FURNISHED AN OPINION OF COUNSEL REASONABLY SATISFACTORY IN FORM
AND SUBSTANCE TO EOTT ENERGY LLC THAT REGISTRATION OF SUCH NOTES UNDER SUCH ACT
IS NOT REQUIRED, OR (III) THE HOLDER OF SUCH NOTES PROVIDES EVIDENCE REASONABLY
SATISFACTORY TO EOTT ENERGY LLC THAT AN EXEMPTION FROM REGISTRATION IS
AVAILABLE."
Such certificates shall be endorsed on the front thereof as follows:
"SEE RESTRICTIONS ON TRANSFER HEREOF ON REVERSE SIDE."
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EXHIBIT D
FORM OF CERTIFICATE TO BE
DELIVERED IN CONNECTION WITH
TRANSFERS TO INSTITUTIONAL ACCREDITED INVESTORS
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Re: EOTT Energy LLC Indenture (the "INDENTURE") relating to 9%
Senior Notes due 2010
Ladies and Gentlemen:
In connection with our proposed purchase of 9% Senior Notes due 2010
(the "NOTES"), of EOTT Energy LLC (the "COMPANY"), we confirm that:
1. We have received such information as we deem necessary in order to
make our investment decision.
2. We understand that any subsequent transfer of the Notes 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 except in compliance with, such restrictions and conditions
and the Securities Act of 1933, as amended (the "SECURITIES ACT").
3. We understand that the offer and sale of the Notes have not been
registered under the Securities Act, and that the Notes may not be offered or
sold within the United States or to, or for the account or benefit of, U.S.
persons 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 any Notes, we will do so only (A) to the Company
or any subsidiary thereof, (B) inside the United States in accordance with Rule
144A under the Securities Act to a "qualified institutional buyer" (as defined
therein), (C) inside the United States 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 the Trustee a signed letter substantially
in the form hereof, (D) outside the United States in accordance with Regulation
S under the Securities Act, (E) pursuant to the exemption from registration
provided by Rule 144 under the Securities Act (if available), or (F) pursuant to
an effective registration statement under the Securities Act, and we further
agree to provide to any person purchasing Notes from us a notice advising such
purchaser that resales of the Notes are restricted as stated herein.
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4. We understand that, on any proposed resale of Notes, we will be
required to furnish to you and the Company, such certification, 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.
5. 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 their investment, as the case may be, for an indefinite period.
6. We are acquiring the Notes purchased by us for our 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, for investment
purposes and not with a view to, or for offer or sale in connection with, any
distribution in violation of the Securities Act.
You and the Company and yours and their respective counsel 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
proceeding or official inquiry with respect to the matters covered hereby.
Very truly yours,
[Name of Transferee]
By:
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[Authorized Signatory]
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EXHIBIT E
FORM OF SUPPLEMENTAL INDENTURE
SUPPLEMENTAL INDENTURE (this "SUPPLEMENTAL INDENTURE"), dated as of
_____________, between __________ (the "SUBSIDIARY GUARANTOR"), a direct or
indirect subsidiary of EOTT Energy LLC (or its successor), a Delaware limited
liability company (the "COMPANY"), and The Bank of New York, a New York banking
corporation, as trustee under the indenture referred to below (the TRUSTEE").
WHEREAS, the Company and
EOTT Energy Finance Corp., a Delaware
corporation ("EOTT FINANCE" and, together with the Company, the "ISSUERS"), have
heretofore executed and delivered to the Trustee an indenture (the "INDENTURE"),
dated as of March 1, 2003, among the Issuers, EOTT Energy Partners, L.P., a
Delaware limited partnership, EOTT Energy General Partner, L.L.C., a Delaware
limited liability company, EOTT Energy Operating Limited Partnership, a Delaware
limited partnership, EOTT Energy Pipeline Limited Partnership, a Delaware
limited partnership, EOTT Energy Canada Limited Partnership, a Delaware limited
partnership, EOTT Energy Liquids, L.P., a Delaware limited partnership and the
Trustee, providing for the issuance of an aggregate principal amount of
$104,000,000 of 9% Senior Notes due 2010 (the "NOTES") and up to an additional
$10,660,000 in aggregate principal amount of PIK Notes (as defined in the
Indenture);
WHEREAS, Section 5.20 of the Indenture provides that under certain
circumstances the Company is required to cause the Subsidiary Guarantor to
execute and deliver to the Trustee a supplemental indenture pursuant to which
the Subsidiary Guarantor shall unconditionally guarantee all of the Issuers'
obligations under the Notes pursuant to a Guarantee on the terms and conditions
set forth herein; and
WHEREAS, pursuant to Section 10.01 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
Subsidiary Guarantor and the Trustee mutually covenant and agree for the equal
and ratable benefit of the holders of the Notes as follows:
1. Definitions. (a) Capitalized terms used herein without definition
shall have the meanings assigned to them in the Indenture.
(b) For all purposes of this Supplemental Indenture, except as
otherwise herein expressly provided or unless the context otherwise requires:
(i) the terms and expressions used herein shall have the same meanings as
corresponding terms
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and expressions used in the Indenture; and (ii) the words "herein," "hereof" and
"hereby" and other words of similar import used in this Supplemental Indenture
refer to this Supplemental Indenture as a whole and not to any particular
section hereof.
2. Agreement to Guarantee. The Subsidiary Guarantor hereby agrees,
jointly and severally with all other subsidiary Guarantors under the Indenture,
to guarantee the Issuers' obligations under the Notes on the terms and subject
to the conditions set forth in Article XII of the Indenture and to be bound by
all other applicable provisions of the Indenture. Except as expressly amended
hereby, the Indenture is in all respects ratified and confirmed and all the
terms, conditions and provisions thereof shall remain in full force and effect.
This Supplemental Indenture shall form a part of the Indenture for all purposes,
and every holder of Notes heretofore or hereafter authenticated and delivered
shall be bound hereby.
3. GOVERNING LAW. THIS SUPPLEMENTAL INDENTURE SHALL BE GOVERNED BY, AND
CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK BUT WITHOUT
GIVING EFFECT TO APPLICABLE PRINCIPLES OF CONFLICTS OF LAW TO THE EXTENT THAT
THE APPLICATION OF THE LAWS OF ANOTHER JURISDICTION WOULD BE REQUIRED THEREBY.
4. Trustee Makes No Representation. The Trustee makes no representation
as to the validity or sufficiency of this Supplemental Indenture.
5. 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.
6. Effect of Headings. The Section headings herein are for convenience
only and shall not effect the construction thereof.
[SIGNATURE PAGE FOLLOWS]
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IN WITNESS WHEREOF, the parties hereto have caused this Supplemental
Indenture to be duly executed as of the date first above written.
[SUBSIDIARY GUARANTOR],
By:
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Name:
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Title:
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THE BANK OF NEW YORK, as Trustee
By:
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Name:
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Title:
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