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NAVIOS MARITIME HOLDINGS INC.
as Company,
the GUARANTORS party hereto,
as Guarantors,
and
βββββ FARGO BANK, N.A.,
as Trustee
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INDENTURE
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Dated as of December 18, 2006
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9 1/2% Senior Notes due 2014
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CROSS-REFERENCE TABLE
Trust Indenture Act Indenture
Section Section
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310(a)(1)............................................. 7.10
(a)(2)............................................. 7.10
(a)(3)............................................. 7.10
(a)(4)............................................. N.A.
(a)(5)............................................. 7.08; 7.10
(b)................................................ 7.03; 7.08; 7.10; 11.02
(c)................................................ N.A.
311(a)................................................ 7.03; 7.11
(b)................................................ 7.03; 7.11
(c)................................................ N.A.
312(a)................................................ 2.05
(b)................................................ 11.03
(c)................................................ 11.03
313(a)................................................ 7.06
(b)(1)............................................. 7.06
(b)(2)............................................. 7.06
(c)................................................ 7.06; 11.02
(d)................................................ 7.06
314(a)................................................ 4.06; 4.17; 11.02
(b)................................................ N.A.
(c)(1)............................................. 7.02; 11.04; 11.05
(c)(2)............................................. 7.02; 11.04; 11.05
(c)(3)............................................. N.A.
(d)................................................ N.A.
(e)................................................ 11.05
(f)................................................ N.A.
315(a)................................................ 7.01(b); 7.02(a)
(b)................................................ 7.05; 11.02
(c)................................................ 7.01
(d)................................................ 6.05; 7.01(c)
(e)................................................ 6.11
316(a)(last sentence)................................. 2.09
(a)(1)(A).......................................... 6.05
(a)(1)(B).......................................... 6.04
(a)(2)............................................. 9.02
(b)................................................ 6.07
(c)................................................ 9.04
317(a)(1)............................................. 6.08
(a)(2)............................................. 6.09
(b)................................................ 2.04
318(a)................................................ 11.01
(c)................................................ 11.01
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N.A. means Not Applicable
Note: This Cross-Reference Table shall not, for any purpose, be deemed to be a
part of this Indenture.
TABLE OF CONTENTS
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ARTICLE ONE
DEFINITIONS AND INCORPORATION BY REFERENCE
SECTION 1.01. Definitions............................................... 1
SECTION 1.02. Other Definitions......................................... 31
SECTION 1.03. Incorporation by Reference of Trust Indenture Act......... 32
SECTION 1.04. Rules of Construction..................................... 32
ARTICLE TWO
THE NOTES
SECTION 2.01. Form and Dating........................................... 33
SECTION 2.02. Execution, Authentication and Denomination; Additional
Notes; Exchange Securities............................. 34
SECTION 2.03. Registrar and Paying Agent................................ 36
SECTION 2.04. Paying Agent To Hold Assets in Trust...................... 36
SECTION 2.05. Holder Lists.............................................. 37
SECTION 2.06. Transfer and Exchange..................................... 37
SECTION 2.07. Replacement Notes......................................... 38
SECTION 2.08. Outstanding Notes......................................... 38
SECTION 2.09. Treasury Notes............................................ 38
SECTION 2.10. Temporary Notes........................................... 39
SECTION 2.11. Cancellation.............................................. 39
SECTION 2.12. Defaulted Interest........................................ 39
SECTION 2.13. CUSIP and ISIN Numbers.................................... 39
SECTION 2.14. Deposit of Moneys......................................... 40
SECTION 2.15. Book-Entry Provisions for Global Notes.................... 40
SECTION 2.16. Special Transfer and Exchange Provisions.................. 41
SECTION 2.17. Persons Deemed Owners..................................... 44
ARTICLE THREE
REDEMPTION
SECTION 3.01. Notices to Trustee........................................ 44
SECTION 3.02. Selection of Notes To Be Redeemed......................... 45
SECTION 3.03. Notice of Redemption...................................... 45
SECTION 3.04. Effect of Notice of Redemption............................ 46
SECTION 3.05. Deposit of Redemption Price............................... 47
SECTION 3.06. Notes Redeemed in Part.................................... 47
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ARTICLE FOUR
COVENANTS
SECTION 4.01. Payment of Notes.......................................... 47
SECTION 4.02. Maintenance of Office or Agency........................... 48
SECTION 4.03. Corporate Existence....................................... 48
SECTION 4.04. Payment of Taxes.......................................... 48
SECTION 4.05. [RESERVED]................................................ 49
SECTION 4.06. Compliance Certificate; Notice of Default................. 49
SECTION 4.07. Payments for Consent...................................... 49
SECTION 4.08. Waiver of Stay, Extension or Usury Laws................... 49
SECTION 4.09. Change of Control......................................... 50
SECTION 4.10. Incurrence of Indebtedness and Issuance of Disqualified
Stock and Preferred Stock.............................. 52
SECTION 4.11. Limitations on Restricted Payments........................ 56
SECTION 4.12. Limitations on Liens...................................... 61
SECTION 4.13. Limitations on Asset Sales................................ 61
SECTION 4.14. Limitations on Transactions with Affiliates............... 65
SECTION 4.15. Dividend and Other Payment Restrictions Affecting
Subsidiaries........................................... 67
SECTION 4.16. Subsidiary Guarantees..................................... 69
SECTION 4.17. Reports to Holders........................................ 70
SECTION 4.18. Limitations on Designation of Restricted and Unrestricted
Subsidiaries........................................... 71
SECTION 4.19. Additional Interest Notice................................ 71
SECTION 4.20. Payment of Additional Amounts............................. 72
ARTICLE FIVE
SUCCESSOR CORPORATION
SECTION 5.01. Mergers, Consolidations, Etc.............................. 73
ARTICLE SIX
DEFAULT AND REMEDIES
SECTION 6.01. Events of Default......................................... 75
SECTION 6.02. Acceleration.............................................. 77
SECTION 6.03. Other Remedies............................................ 77
SECTION 6.04. Waiver of Past Defaults................................... 78
SECTION 6.05. Control by Majority....................................... 78
SECTION 6.06. Limitation on Suits....................................... 78
SECTION 6.07. Rights of Holders To Receive Payment...................... 79
SECTION 6.08. Collection Suit by Trustee................................ 79
SECTION 6.09. Trustee May File Proofs of Claim.......................... 79
SECTION 6.10. Priorities................................................ 80
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SECTION 6.11. Undertaking for Costs..................................... 80
ARTICLE SEVEN
TRUSTEE
SECTION 7.01. Duties of Trustee......................................... 81
SECTION 7.02. Rights of Trustee......................................... 82
SECTION 7.03. Individual Rights of Trustee.............................. 83
SECTION 7.04. Trustee's Disclaimer...................................... 84
SECTION 7.05. Notice of Default......................................... 84
SECTION 7.06. Reports by Trustee to Holders............................. 84
SECTION 7.07. Compensation and Indemnity................................ 84
SECTION 7.08. Replacement of Trustee.................................... 85
SECTION 7.09. Successor Trustee by Merger, Etc.......................... 86
SECTION 7.10. Eligibility; Disqualification............................. 86
SECTION 7.11. Preferential Collection of Claims Against the Company..... 87
ARTICLE EIGHT
SATISFACTION OR DISCHARGE OF INDENTURE; DEFEASANCE
SECTION 8.01. Termination of the Company's Obligations.................. 87
SECTION 8.02. Option to Effect Legal Defeasance or Covenant Defeasance.. 88
SECTION 8.03. Legal Defeasance.......................................... 88
SECTION 8.04. Covenant Defeasance....................................... 89
SECTION 8.05. Conditions to Legal or Covenant Defeasance................ 89
SECTION 8.06. Deposited Money and Government Securities To Be Held in
Trust; Other Miscellaneous Provisions.................. 91
SECTION 8.07. Repayment to the Company.................................. 91
SECTION 8.08. Reinstatement............................................. 92
ARTICLE NINE
AMENDMENTS, SUPPLEMENTS AND WAIVERS
SECTION 9.01. Without Consent of Holders................................ 92
SECTION 9.02. With Consent of Holders................................... 93
SECTION 9.03. Compliance with the Trust Indenture Act................... 95
SECTION 9.04. Revocation and Effect of Consents......................... 95
SECTION 9.05. Notation on or Exchange of Notes.......................... 96
SECTION 9.06. Trustee To Sign Amendments, Etc........................... 96
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ARTICLE TEN
NOTE GUARANTEE
SECTION 10.01. Unconditional Guarantee................................... 96
SECTION 10.02. Limitation on Guarantor Liability......................... 97
SECTION 10.03. Execution and Delivery of Guarantee....................... 98
SECTION 10.04. Release of a Guarantor.................................... 98
SECTION 10.05. Waiver of Subrogation..................................... 99
SECTION 10.06. Immediate Payment......................................... 99
SECTION 10.07. No Set-Off................................................ 99
SECTION 10.08. Guarantee Obligations Absolute............................ 99
SECTION 10.09. Note Guarantee Obligations Continuing..................... 100
SECTION 10.10. Note Guarantee Obligations Not Reduced.................... 100
SECTION 10.11. Note Guarantee Obligations Reinstated..................... 100
SECTION 10.12. Note Guarantee Obligations Not Affected................... 100
SECTION 10.13. Waiver.................................................... 101
SECTION 10.14. No Obligation To Take Action Against the Company.......... 102
SECTION 10.15. Dealing with the Company and Others....................... 102
SECTION 10.16. Default and Enforcement................................... 102
SECTION 10.17. Acknowledgment............................................ 103
SECTION 10.18. Costs and Expenses........................................ 103
SECTION 10.19. No Merger or Waiver; Cumulative Remedies.................. 103
SECTION 10.20. Survival of Note Guarantee Obligations.................... 103
SECTION 10.21. Note Guarantee in Addition to Other Guarantee Obligations. 103
SECTION 10.22. Severability.............................................. 103
SECTION 10.23. Successors and Assigns.................................... 104
ARTICLE ELEVEN
MISCELLANEOUS
SECTION 11.01. Trust Indenture Act Controls.............................. 104
SECTION 11.02. Notices................................................... 104
SECTION 11.03. Communications by Holders with Other Holders.............. 105
SECTION 11.04. Certificate and Opinion as to Conditions Precedent........ 106
SECTION 11.05. Statements Required in Certificate or Opinion............. 106
SECTION 11.06. Rules by Paying Agent or Registrar........................ 106
SECTION 11.07. Legal Holidays............................................ 107
SECTION 11.08. GOVERNING LAW; WAIVER OF JURY TRIAL; SUBMISSION TO
JURISDICTION........................................... 107
SECTION 11.09. No Adverse Interpretation of Other Agreements............. 107
SECTION 11.10. No Personal Liability of Directors, Officers, Employees
and Stockholders....................................... 107
SECTION 11.11. Successors................................................ 108
SECTION 11.12. Duplicate Originals....................................... 108
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SECTION 11.13. Severability.............................................. 108
SECTION 11.14. Force Majeure............................................. 108
SECTION 11.15. Agent for Service; Submission to Jurisdiction; Waiver of
Immunities............................................. 108
SECTION 11.16. Currency of Account; Conversion of Currency; Foreign
Exchange Restrictions.................................. 110
Signatures............................................................... S-1
Exhibit A - Form of Note
Exhibit B - Form of Legends
Exhibit C - Form of Certificate To Be Delivered in Connection with
Transfers Pursuant to Regulation S
Exhibit D - Form of Supplemental Indenture for Additional Guarantor(s)
Exhibit E - Form of Notation of Guarantee
Note: This Table of Contents shall not, for any purpose, be deemed to be part of
this Indenture.
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INDENTURE dated as of December 18, 2006 among Navios Maritime Holdings
Inc., a ββββββββ Islands corporation, as issuer ("NAVIOS" or the "COMPANY") and
each of the Guarantors named herein, as Guarantors, and βββββ Fargo Bank, N.A.,
a national banking association, as Trustee (the "TRUSTEE").
The Company has duly authorized the creation of an issue of 9 1/2%
Senior Notes due 2014 and, to provide therefor, the Company and the Guarantors
have duly authorized the execution and delivery of this Indenture. All things
necessary to make the Notes, when duly issued and executed by the Company and
authenticated and delivered hereunder, the valid and binding obligations of the
Company and to make this Indenture a valid and binding agreement of the Company
and the Guarantors have been done.
For and in consideration of the premises and the purchase of the Notes
by the Holders thereof, the parties hereto covenant and agree, for the equal and
proportionate benefit of all Holders, as follows:
ARTICLE ONE
DEFINITIONS AND INCORPORATION BY REFERENCE
SECTION 1.01. Definitions.
Set forth below are certain defined terms used in this Indenture.
"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 becomes a Restricted Subsidiary of such
specified Person, whether or not such Indebtedness is incurred in
connection with, or in contemplation of, such other Person merging with or
into, or becoming a Restricted Subsidiary of, such specified Person; and
(2) Indebtedness secured by a Lien encumbering any asset acquired by
such specified Person.
"ADDITIONAL INTEREST" means (i) "Additional Interest" as defined in
the Registration Rights Agreement with respect to the Notes issued on the Issue
Date and (ii) "Special Interest," "Additional Interest," "Liquidated Damages" or
similar term as such term is defined in any registration rights agreement with
respect to additional Notes issued after the Issue Date.
"AFFILIATE" of any specified Person means any other Person directly or
indirectly controlling or controlled by or under direct or indirect common
control with such specified Person. For purposes of this definition, "control,"
as used with respect to any Person, means 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. For the purposes of this definition, the terms "controlling,"
"controlled by" and "under common control with" have correlative meanings.
"AGENT" means any Registrar or Paying Agent.
"APPLICABLE PREMIUM" means, with respect to a Note at any time, the
greater of (1) 1.0% of the principal amount of such Note at such time and (2)
the excess of (A) the present value at such time of (i) the redemption price of
such Note at December 15, 2010 plus (ii) all remaining interest payments due on
such Note through and including December 15, 2010 (excluding any interest
accrued to the Make-Whole Redemption Date), discounted on a semi-annual basis
(assuming a 360-day year consisting of twelve 30-day months) from December 15,
2010 to the Make-Whole Redemption Date, computed using a discount rate equal to
the Applicable Treasury Rate plus 0.50%, over (B) the principal amount of such
Note on the Make-Whole Redemption Date.
"APPLICABLE TREASURY RATE" for any redemption date, means the yield to
maturity at the time of computation of United States Treasury securities with a
constant maturity (as compiled and published in the most recent Federal Reserve
Statistical Release H.15(519) that has become publicly available at least two
Business Days prior to the Make-Whole Redemption Date of such note (or, if such
Statistical Release is no longer published, any publicly available source of
similar market data)) most nearly equal to the period from the Make-Whole
Redemption Date to December 15, 2010; provided, however, that if the period from
the Make-Whole Redemption Date to December 15, 2010 is not equal to the constant
maturity of a United States Treasury security for which a weekly average yield
is given, the Applicable Treasury Rate shall be obtained by linear interpolation
(calculated to the nearest one-twelfth of a year) from the weekly average yields
of United States Treasury securities for which such yields are given except that
if the period from the Make-Whole Redemption Date to December 15, 2010 is less
than one year, the weekly average yield on actually traded United States
Treasury securities adjusted to a constant maturity of one year shall be used.
"ASSET SALE" means:
(1) the sale, lease, conveyance or other disposition of any assets;
provided that the sale, conveyance or other disposition of all or
substantially all of the assets of the Company and its Restricted
Subsidiaries taken as a whole shall be governed by the provisions of
Sections 4.09 and/or 5.01 and not by the provisions of Section 4.13; and
(2) the issuance by any of the Company's Restricted Subsidiaries of
any Equity Interest of such Restricted Subsidiary or the sale by the
Company or any Restricted Subsidiary of Equity Interests in any Restricted
Subsidiaries (other than directors' qualifying shares or shares required by
applicable law to be held by a Person other than the Company or any of its
Subsidiaries).
Notwithstanding the foregoing, none of the following items shall be
deemed to be an Asset Sale:
(1) any single transaction or series of related transactions that
involves assets having a fair market value of less than $10.0 million;
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(2) a sale, lease, conveyance, transfer or other disposition of assets
between or among the Company and/or its Restricted Subsidiaries;
(3) an issuance, sale, transfer or other disposition of Equity
Interests by a Restricted Subsidiary of the Company to the Company or to
another Restricted Subsidiary of the Company;
(4) the sale or other disposition of damaged, worn-out or obsolete
assets;
(5) the sale or other disposition of cash or Cash Equivalents;
(6) (i) a Restricted Payment that does not violate Section 4.11 or a
Permitted Investment; and (ii) any issuance, sale, transfer or other
disposition of Capital Stock of an Unrestricted Subsidiary;
(7) sales of accounts receivable and inventory (other than Vessels and
Related Assets) in the ordinary course of business for cash or Cash
Equivalents;
(8) a Permitted Asset Swap;
(9) sales and/or contributions of Securitization Assets to a
Securitization Subsidiary in a Qualified Securitization Transaction for the
fair market value thereof including cash in an amount at least equal to 75%
of the fair market value thereof (for the purposes of this clause (9),
Purchase Money Notes shall be deemed to be cash); and
(10) any transfer of Securitization Assets or a fractional undivided
interest therein, by a Securitization Subsidiary in a Qualified
Securitization Transaction.
"ATTRIBUTABLE INDEBTEDNESS" in respect of a Sale/Leaseback Transaction
means, as at the time of determination, the present value (discounted at the
interest rate equal to the rate implicit in such transaction for the relevant
lease period, determined in accordance with GAAP) of the total obligations of
the lessee for net rental payments during the remaining term of the lease
included in such Sale/Leaseback Transaction (including any period for which such
lease has been extended); provided, however, that if such Sale/Leaseback
Transaction results in a Capital Lease Obligation, the amount of Indebtedness
required thereby shall be determined in accordance with the definition of
"Capital Lease Obligation."
"BANKRUPTCY LAW" means Title 11 of the United States Code, as amended,
or any applicable United States federal, state or foreign law for the relief of
debtors, or bankruptcy, insolvency, reorganization or other similar law.
"BENEFICIAL OWNER" has the meaning assigned to such term in Rule 13d-3
and Rule 13d-5 under the Exchange Act, except that in calculating the beneficial
ownership of any particular "person" (as that term is used in Section 13(d)(3)
of the Exchange Act), such "person" shall be deemed to have beneficial ownership
of all securities that such "person" has the right to acquire by conversion or
exercise of other securities, whether such right is currently exercisable or is
exercisable only after the passage of time; provided that, notwithstanding the
foregoing, the holders of the Company's warrants outstanding on the Issue Date
shall not be deemed to beneficially own the underlying shares
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until such warrants have been exercised. The terms "BENEFICIALLY OWNS,"
"BENEFICIALLY OWNED" and "BENEFICIAL OWNERSHIP" shall have correlative meanings.
"BOARD OF DIRECTORS" means:
(1) with respect to a corporation, the board of directors of the
corporation or, other than for purposes of the definition of "Change of
Control," any committee thereof duly authorized to act on behalf of such
board; and
(2) with respect to any other Person, the functional equivalent of a
board of directors of a corporation or, other than for purposes of the
definition of "Change of Control," any committee thereof duly authorized to
act on behalf thereof.
"BUSINESS DAY" means a day other than a Saturday, Sunday or other day
on which banking institutions in New York, the location of the office of the
Paying Agent or the location of the Corporate Trust Office of the Trustee are
authorized or required by law to close.
"CAPITAL LEASE OBLIGATION" means, at the time of determination, the
amount of the liability in respect of a capital lease that would at that time be
required to be capitalized on a balance sheet in accordance with GAAP.
"CAPITAL STOCK" means:
(1) in the case of a corporation, corporate stock;
(2) in the case of an association or business entity, any and all
shares, interests, participations, rights or other equivalents (however
designated) in the equity of such association or entity;
(3) in the case of a partnership or limited liability company,
partnership interests (whether general or limited) or membership interests;
and
(4) any other interest or participation that confers on a Person the
right to receive a share of the profits and losses of, or distributions of
assets of, the issuing Person, but excluding from all of the foregoing any
debt securities convertible into Capital Stock, whether or not such debt
securities include any right of participation with Capital Stock.
"CASH EQUIVALENTS" means:
(1) United States dollars or Euro or other currency of a member of the
Organization for Economic Cooperation and Development (including such
currencies as are held as overnight bank deposits and demand deposits with
banks);
(2) securities issued or directly and fully guaranteed or insured by
the government of the United States or any Member State of the European
Union or any other country whose sovereign debt has a rating of at least A3
from βββββ'β and at least A- from S&P or any agency or instrumentality
thereof having maturities of not more than one year from the date of
acquisition;
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(3) demand and time deposits and eurodollar time deposits and
certificates of deposit or bankers' acceptances with maturities of one year
or less from the date of acquisition, in each case, with any financial
institution organized under the laws of any country that is a member of the
Organization for Economic Cooperation and Development having capital and
surplus and undivided profits in excess of US$500.0 million;
(4) repurchase obligations with a term of not more than 60 days for
underlying securities of the types described in clauses (2) above entered
into with any financial institution meeting the qualifications specified in
clause (3) above;
(5) commercial paper and variable or fixed rate Notes rated P-1 or
higher by βββββ'β or A-1 or higher by S&P and, in each case, maturing
within one year after the date of acquisition; and
(6) money market funds that invest primarily in 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), other than one or more Permitted Holders,
is or becomes the Beneficial Owner, directly or indirectly, of Voting Stock
representing more than 35% of the voting power of the total outstanding
Voting Stock of the Company; provided, however, that such event shall not
be deemed to be a Change of Control so long as the Permitted Holders own
Voting Stock representing in the aggregate a greater percentage of the
total voting power of the Voting Stock of the Company than such other
person or group;
(2) during any period of two consecutive years, individuals who at the
beginning of such period constituted the Board of Directors (together with
any new directors whose election to such Board of Directors or whose
nomination for election by the stockholders of the Company was approved by
a vote of the majority of the directors of the Company then still in office
who were either directors at the beginning of such period or whose election
or nomination for election was previously so approved) cease for any reason
to constitute a majority of the Board of Directors of the Company;
(3) (a) all or substantially all of the assets of the Company and the
Restricted Subsidiaries are sold or otherwise transferred to any Person
other than a Wholly Owned Restricted Subsidiary or one or more Permitted
Holders or (b) the Company consolidates or merges with or into another
Person or any Person consolidates or merges with or into the Company, in
either case under this clause (3), in one transaction or a series of
related transactions in which immediately after the consummation thereof
Persons Beneficially Owning, directly or indirectly, Voting Stock
representing in the aggregate a majority of the total voting power of the
Voting Stock of the Company immediately prior to such consummation do not
Beneficially Own, directly or indirectly, Voting Stock representing a
majority of the total voting power of the Voting Stock of the Company or
the surviving or transferee Person; or
-5-
(4) the Company shall adopt a plan of liquidation or dissolution or
any such plan shall be approved by the stockholders of the Company.
"CONSOLIDATED CASH FLOW" means, for any period, for any Person, an
amount determined for such Person and its Restricted Subsidiaries on a
consolidated basis equal to:
(1) Consolidated Net Income for such period; plus
(2) the sum, without duplication, of the amounts for such Person and
its Restricted Subsidiaries for such period (in each case to the extent
reducing such Consolidated Net Income) of:
(a) Fixed Charges;
(b) provision for taxes based on income;
(c) total depreciation expenses;
(d) total amortization expenses (including, without limitation,
the amoritization of capitalized drydocking expenses);
(e) other non-cash items reducing such Consolidated Net Income
(excluding any such non-cash item to the extent that it represents an
accrual or reserve for potential cash items in any future period or
amortization of a prepaid cash item that was paid in a prior period);
and
(f) to the extent any Attributable Indebtedness is outstanding
and is not a Capital Lease Obligation, the amount of any payments
therefor less the amount of interest implicit in such payments; minus
(3) the amount for such period (to the extent increasing such
Consolidated Net Income) of non-cash items increasing such Consolidated Net
Income (other than any such non-cash item to the extent it represents the
reversal of an accrual or reserve for potential cash items in any prior
period);
provided that the items listed in clauses (2)(a) through (f) of a Restricted
Subsidiary shall be included in Consolidated Cash Flow only to the extent (and
in the same proportion) that the net income of such Subsidiary was included in
calculating Consolidated Net Income for such period.
"CONSOLIDATED NET INCOME" means, for any period, the net income (or
net loss) of the Company and its Restricted Subsidiaries for such period as
determined on a consolidated basis in accordance with GAAP, adjusted to the
extent included in calculating such net income or loss by excluding (without
duplication):
(1) any net after-tax extraordinary or nonrecurring gains or losses
(less all fees and expenses relating thereto);
-6-
(2) any net after-tax gains or losses (less all fees and expenses
relating thereto) attributable to Asset Sales or dispositions of
securities;
(3) the portion of net income (or loss) of any Person (other than the
Company or a Restricted Subsidiary) in which the Company or any Restricted
Subsidiary has an ownership interest, except to the extent of the amount of
dividends or other distributions actually paid to the Company or any
Restricted Subsidiary in cash during such period;
(4) the net income (but not the net loss) of any Restricted Subsidiary
to the extent that the declaration or payment of dividends or similar
distributions by such Restricted Subsidiary is at the date of determination
restricted, directly or indirectly, except to the extent that such net
income is actually, or permitted to be, paid to the Company or a Restricted
Subsidiary thereof by loans, advances, intercompany transfers, principal
repayments or otherwise; provided that with respect to a Guarantor (or a
Securitization Subsidiary this clause (4) shall be applicable solely for
purpose of calculating Consolidated Net Income to determine the amount of
Restricted Payments permitted under Section 4.11;
(5) any non-cash expenses or charges resulting from the stock, stock
options or other equity-based awards;
(6) the cumulative effect of a change in accounting principles;
(7) any impairment charge or asset write-off or write-down, in each
case, pursuant to GAAP, and the amoritization of intangibles arising
pursuant to GAAP;
(8) the net after-tax effects of adjustments in the inventory,
property and equipment, goodwill, intangible assets, deferred revenue and
debt line items in such Person's consolidated financial statements pursuant
to GAAP resulting from the application of purchase accounting or the
amortization or write-off of any amounts thereof; and
(9) any fees and expenses incurred during such period, or any
amortization thereof for such period, in connection with any acquisition,
Investment, Asset Sale, issuance or repayment of Indebtedness, issuance of
Equity Interests, refinancing transaction or amendment or modification of
any debt instrument (including without limitation any such transaction
undertaken but not completed);
provided, however, that Consolidated Net Income shall be reduced by the amount
of all dividends on Designated Preferred Stock (other than dividends paid in
Qualified Equity Interests) paid, accrued or scheduled to be paid or accrued
during such period.
"CORPORATE TRUST OFFICE" means the corporate trust office of the
Trustee located at Sixth and Marquette, MAC βββββ-βββ, βββββββββββ, ββ βββββ, or
such other office, designated by the Trustee by written notice to the Company,
at which at any particular time its corporate trust business shall be
principally administered.
-7-
"CREDIT AGREEMENT" means that certain Facilities Agreement, dated as
of December 21, 2005, among the Company, HSH Nordbank AG as lead arranger, agent
and security agent and the lenders party thereto, including any related notes,
guarantees, collateral documents, instruments and agreements executed in
connection therewith, and in each case, as amended, restated, modified, renewed,
refunded, replaced (whether upon termination or otherwise), increased or
refinanced (including by means of sales of debt securities to institutional
investors) including by means of a Qualified Securitization Transaction in whole
or in part from time to time (and without limitation as to amount, terms,
conditions, covenants and other provisions, including increasing the amount of
available borrowings thereunder, changing or replacing agent banks and lenders
thereunder or adding, removing or reclassifying Subsidiaries of the Company as
borrowers or guarantors thereunder), including, without limitation, pursuant to
the Amendment and Consent dated as of November 29, 2006, among the Company and
HSH Nordbank AG.
"CREDIT FACILITIES" means one or more debt facilities or agreements
(including, without limitation, the Credit Agreement) or commercial paper
facilities, in each case, with banks, other institutional lenders, commercial
finance companies or other lenders providing for revolving credit loans, term
loans, bonds, debentures, securitization financing (including through the
transfer of Securitization Assets to special purpose entities formed to borrow
from such lenders against, or sell undivided interests in, such assets in a
Qualified Securitization Transaction) or letters of credit, pursuant to
agreements or indentures, in each case, as amended, restated, modified, renewed,
refunded, replaced, increased or refinanced (including by means of sales of debt
securities to institutional investors) in whole or in part from time to time
(and without limitation as to amount, terms, conditions, covenants and other
provisions, including increasing the amount of available borrowings thereunder,
changing or replacing agent banks and lenders thereunder or adding, removing or
reclassifying Subsidiaries of the Company as borrowers or guarantors
thereunder).
"CUSTODIAN" means any receiver, trustee, assignee, liquidator or
similar official under any Bankruptcy Law.
"DEFAULT" means any event that is, or with the passage of time or the
giving of notice or both would be, an Event of Default.
"DEPOSITORY" means, with respect to the Global Notes, The Depository
Trust Company, New York, New York, its nominees and any and all successors
thereto appointed as depository hereunder and having become such pursuant to the
applicable provisions of this Indenture.
"DESIGNATED NON-CASH CONSIDERATION" means the Fair Market Value of
non-cash consideration received by the Company or a Restricted Subsidiary in
connection with an Asset Sale that is so designated as Designated Non-cash
Consideration pursuant to an Officers' Certificate setting forth the basis of
such valuation executed by an authorized officer of the Company, less the amount
of cash or Cash Equivalents received in connection with a subsequent sale of
such Designated Non-cash Consideration.
-8-
"DESIGNATED PREFERRED STOCK" means preferred stock of the Company
(other than Disqualified Stock) issued and sold for cash in a bona-fide
financing transaction that is designated as Designated Preferred Stock pursuant
to an Officers' Certificate on the issuance date thereof, the net cash proceeds
of which are excluded from the calculation of Restricted Payments for purposes
of Section 4.11(a)(3) and are not used for purposes of Section 4.11(a)(3)(B).
"DISQUALIFIED STOCK" means any Capital Stock that, by its terms (or by
the terms of any security into which it is convertible, or for which it is
exchangeable), or upon the happening of any event, matures or is mandatorily
redeemable, pursuant to a sinking fund obligation or otherwise, or is redeemable
at the option of the holder of the Capital Stock, in whole or in part, on or
prior to the date that is 91 days after the date on which the Notes mature.
Notwithstanding the preceding sentence, any Capital Stock that would constitute
Disqualified Stock solely because the holders of the Capital Stock have the
right to require the issuer thereof to repurchase or redeem such Capital Stock
upon the occurrence of a change of control or an asset sale prior to the stated
maturity of the Notes shall not constitute Disqualified Stock. The amount of
Disqualified Stock deemed to be outstanding at any time for purposes of this
Indenture shall be the maximum amount that the Company and its Restricted
Subsidiaries may become obligated to pay upon the maturity of, or pursuant to
any mandatory redemption provisions of, such Disqualified Stock.
"ELIGIBLE JURISDICTION" means any of the ββββββββ Islands, the United
States of America, any State of the United States or the District of Columbia,
the Commonwealth of the Bahamas, the Republic of Liberia, the Republic of
Panama, the Commonwealth of Bermuda, the British Virgin Islands, the ββββββ
βββββββ, βββ ββββ ββ βββ, ββββββ, ββββββ, ββββββ, Hong Kong, the United Kingdom,
Malta, any Member State of the European Union and any other jurisdiction
generally acceptable to institutional lenders in the shipping industry, as
determined in good faith by the Board of Directors.
"EQUITY INTERESTS" means Capital Stock and all warrants, options or
other rights to acquire Capital Stock (but excluding any debt security that is
convertible into, or exchangeable for, Capital Stock).
"EQUITY OFFERING" means any issuance and sale by the Company of its
Qualified Equity Interests.
"EXCHANGE ACT" means the U.S. Securities Exchange Act of 1934, as
amended, or any successor statute or statutes thereto and, in each case, the
rules and regulations promulgated by the SEC thereunder.
"EXCHANGE OFFER" means an offer that may be made by the Company
pursuant to the Registration Rights Agreement to exchange Notes bearing the
Private Placement Legend for the Exchange Securities.
"EXCHANGE SECURITIES" has the meaning set forth in the Registration
Rights Agreement.
"EXERCISED VESSEL PURCHASE OPTION CONTRACT" means any Vessel Purchase
Option Contract which has been exercised by the Company or a Restricted
Subsidiary,
-9-
obligating the Company or such Restricted Subsidiary to purchase such Vessel and
any Related Assets, subject only to customary conditions precedent.
"EXISTING INDEBTEDNESS" means Indebtedness of the Company and its
Subsidiaries (other than Indebtedness under the Credit Agreement) in existence
on the date of this Indenture after giving effect to the issuance of the Notes
on the Issue Date and the use of proceeds therefrom.
"FAIR MARKET VALUE" means, with respect to any asset or property, the
value that would be paid by a willing buyer to an unaffiliated willing seller in
an arm's length transaction not involving distress or necessity of either party.
Fair Market Value shall be determined in good faith by (i) if the value of such
property or asset is less than $25 million, an officer of the Company and
evidenced by an Officers' Certificate delivered to the Trustee and (ii) if the
value of such property or asset equals or exceeds $25 million, the Board of
Directors of the Company; provided, however, that (x) if such determination is
with respect to one or more Vessels, Fair Market Value shall be based on the
written appraisal of an Independent Appraiser dated not more than 60 days prior
to the relevant date of determination and (y) if such determination relates to
the determination by the Company of compliance with clause (7) of the definition
of "Permitted Liens," such determination shall comply with clause (x) to the
extent such determination relates to one or more Vessels and in all other cases
such determination shall be based on the written opinion of an independent
investment banking firm of international standing qualified to perform the task
for which such firm has been engaged (as determined by the Company in good
faith).
"FIXED CHARGE COVERAGE RATIO" means with respect to any specified
Person for any period, the ratio of the Consolidated Cash Flow of such Person
for such period to the Fixed Charges of such Person for such period. In the
event that the specified Person or any of its Restricted Subsidiaries incurs,
assumes, guarantees, repays, repurchases, redeems, defeases or otherwise
discharges any Indebtedness (other than ordinary working capital borrowings) or
issues, repurchases or redeems Disqualified Stock or preferred stock subsequent
to the commencement of the period for which the Fixed Charge Coverage Ratio is
being calculated and on or prior to the date on which the event for which the
calculation of the Fixed Charge Coverage Ratio is made occurred (the
"CALCULATION DATE"), then the Fixed Charge Coverage Ratio shall be calculated
giving pro forma effect to such incurrence, assumption, guarantee, repayment,
repurchase, redemption, defeasance or other discharge of Indebtedness, or such
issuance, repurchase or redemption of Disqualified Stock or preferred stock, and
the use of the proceeds therefrom, as if the same had occurred at the beginning
of the applicable four-quarter reference period.
In addition, for purposes of calculating the Fixed Charge Coverage
Ratio:
(1) acquisitions (including of Vessels and Related Assets including,
without limitation, chartered-in Vessels) that have been made by the
specified Person or any of its Restricted Subsidiaries, including through
mergers or consolidations, of any other Person or any of its Subsidiaries
acquired by the specified Person or any of its Restricted Subsidiaries, and
including any related financing transactions and any prior acquisitions by
such other Person to the extent not fully reflected in the historical
results of operations of such other Person, and including increases in
ownership of Restricted Subsidiaries, during the four-quarter reference
period or subsequent to such reference period and on or
-10-
prior to the Calculation Date shall be given pro forma effect as if they
had occurred on the first day of the four-quarter reference period;
(2) the Consolidated Cash Flow attributable to operations (including
Vessels and Related Assets) or businesses (and ownership interests therein)
disposed of prior to the Calculation Date, shall be excluded;
(3) the Fixed Charges attributable to operations (including Vessels
and Related Assets) or businesses (and ownership interests therein)
disposed of prior to the Calculation Date shall be excluded, but only to
the extent that the obligations giving rise to such Fixed Charges shall not
be obligations of the specified Person or any of its Restricted
Subsidiaries following the Calculation Date;
(4) any Person that is a Restricted Subsidiary on the Calculation Date
(or would become a Restricted Subsidiary on such Calculation Date in
connection with the transaction requiring determination of such
Consolidated Cash Flow) shall be deemed to have been a Restricted
Subsidiary at all times during such four-quarter period;
(5) any Person that is not a Restricted Subsidiary on the Calculation
Date (or would cease to be a Restricted Subsidiary on such Calculation Date
in connection with the transaction requiring determination of such
Consolidated Cash Flow) shall be deemed not to have been a Restricted
Subsidiary at any time during such four-quarter period; and
(6) if any Indebtedness bears a floating rate of interest, the
interest expense on such Indebtedness shall be calculated at the actual
rate that was in effect from time to time (taking into account any Hedging
Obligation applicable to such Indebtedness if such Hedging Obligation has a
remaining term as at the Calculation Date in excess of 12 months).
For purposes of this definition, whenever pro forma effect is to be
given to an acquisition (including without limitation, the charter-in of a
Vessel) or construction of a Vessel or the Capital Stock of a Person that owns,
or charters in, one or more Vessels or the financing thereof, such Person may
(i) if a relevant Vessel is to be subject to a time charter-out with a remaining
term of twelve months or longer, apply for the period for which the Fixed Charge
Coverage Ratio is being calculated pro forma earnings (losses) for such Vessel
based upon such charter-out, (ii) if a relevant Vessel is to be subject to a
time charter-out with a remaining term of between six and twelve months, apply
for the period for which the Fixed Charge Coverage Ratio is being calculated the
annualized amount of pro forma earnings (losses) for such Vessel based upon such
charter-out, or (iii) if a relevant Vessel is not to be subject to a time
charter-out, is under time charter-out that is due to expire in six months or
less, or is to be subject to charter on a voyage charter basis (whether or not
any such charter is in place for such Vessel), then in each case, apply for the
period for which the Fixed Charge Coverage Ratio is being calculated earnings
(losses) for such Vessel based upon the average of the historical earnings of
comparable Vessels in such Person's fleet in the most recent four quarter period
(as determined in good faith by the chief financial officer of the Company) or
if there is no such comparable Vessel, then based upon industry average earnings
for comparable Vessels (as determined in good faith by the chief financial
officer of the Company).
-11-
Additionally, any pro forma calculations may include the reduction or
increase in costs for the applicable period resulting from, or in connection
with, the acquisition of assets, an asset sale or other transaction or event
which is being given pro forma effect that (a) would be permitted to be
reflected on pro forma financial statements pursuant to Regulation S-X under the
Securities Act or (b) have been realized at the time such pro forma calculation
is made or are reasonably expected to be realized within twelve months following
the consummation of the transaction to which such pro forma calculations relate,
which actions shall be certified by the chief financial officer of the Company;
provided that, in the case of adjustments pursuant to this clause (b), such
adjustments shall be set forth in a certificate signed by the Company's chief
financial officer which states in detail (i) the amount of such adjustment or
adjustments and (ii) that such adjustment or adjustments are based on the
reasonable good faith beliefs of the Company at the time of such execution. Any
such certificate shall be provided to the Trustee if the Company or any
Restricted Subsidiary incurs Indebtedness, issues Disqualified Stock or
preferred stock, makes any Restricted Payment or consummates any transaction
described under Section 5.01 necessitating the calculation of the Fixed Charge
Coverage Ratio.
"FIXED CHARGES" means, with respect to any specified Person for any
period, the sum, without duplication, of:
(1) the consolidated interest expense of such Person and its
Restricted Subsidiaries for such period, whether paid or accrued, (x)
including, without limitation, amortization of original issue discount,
non-cash interest payments, the interest component of any deferred payment
obligations, the interest component of any Securitization Fees, the
interest component of all payments associated with Capital Lease
Obligations and the net payments made pursuant to Hedging Obligations in
respect of interest rates and (y) excluding amortization of deferred
financing fees, debt issuance costs and commissions, fees and expenses
incurred in connection with the incurrence of Indebtedness and any
expensing of bridge, commitment and other financing fees; plus
(2) the consolidated interest of such Person and its Restricted
Subsidiaries that was capitalized during such period; plus
(3) any interest accruing 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) all dividends accrued paid of any series of Disqualified Stock or
Designated Preferred Stock of the Company or any Disqualified Stock or
preferred stock of any Restricted Subsidiary (other than any such
Disqualified Stock, Designated Preferred Stock or preferred stock held by
the Company or a Wholly Owned Restricted Subsidiary or to the extent paid
in Qualified Equity Interests); plus
(5) to the extent any Attributable Indebtedness is outstanding and is
not a Capital Lease Obligation, the amount of interest implicit in any
payments related to such Attributable Indebtedness during such period.
-12-
"FORWARD FREIGHT AGREEMENT" means, with respect to any Person, any
forward freight agreement or comparable swap, future or similar agreement or
arrangement relating to derivative trading in freight or similar rates.
"GAAP" means generally accepted accounting principles in the United
States of America as in effect on the Issue Date, as set forth in the opinions
and pronouncements of the Accounting Principles Board of the American Institute
of Certified Public Accountants and statements and pronouncements of the
Financial Accounting Standards Board, in each case, as in effect on the Issue
Date, or in such other statements by such other entity as have been approved by
a significant segment of the accounting profession, in each case, as in effect
on the Issue Date.
"GOVERNMENT SECURITIES" means direct obligations of, or obligations
guaranteed by, the United States of America, and the payment for which the
United States pledges its full faith and credit.
"GUARANTEE" means a guarantee other than by endorsement of negotiable
instruments for collection in the ordinary course of business, direct or
indirect, in any manner including, without limitation, through letters of credit
or reimbursement agreements in respect thereof, of all or any part of any
Indebtedness.
"GUARANTEE" or "NOTE GUARANTEE" means the guarantee by each Guarantor
of the Company's obligations under this Indenture and on the Notes, executed
pursuant to the provisions of this Indenture.
"GUARANTOR" means each Subsidiary of the Company that executes a
Guarantee in accordance with the provisions of this Indenture and its successors
and assigns, until such Subsidiary is released from its Guarantee in accordance
with the provisions of this Indenture.
"HEDGING OBLIGATIONS" means, with respect to any Person, the
obligations of such Person under swap, cap, collar, forward purchase, Forward
Freight Agreements or agreements or arrangements similar to any of the foregoing
and dealing with interest rates, currency exchange rates, commodity prices or
freight rates, either generally or under specific contingencies.
"HEIRS" of any individual means such individual's estate, spouse,
lineal relatives (including adoptive descendants), administrator, committee or
other personal representative or other estate planning vehicle and any custodian
or Trustee for the benefit of any spouse or lineal relatives (including adoptive
descendants) of such individual.
"HOLDER" means a Person in whose name a Note is registered on the
books maintained by the Registrar.
"INDEBTEDNESS" of any Person at any date means, without duplication:
(1) all liabilities, contingent or otherwise, of such Person for
borrowed money (whether or not the recourse of the lender is to the whole
of the assets of such Person or only to a portion thereof);
-13-
(2) all obligations of such Person evidenced by bonds, debentures,
notes or other similar instruments;
(3) all reimbursement obligations of such Person in respect of letters
of credit, letters of guaranty, bankers' acceptances and similar credit
transactions;
(4) all obligations of such Person representing the balance deferred
and unpaid of the purchase price of any property or services due more than
six months after such property is acquired or such services are completed
and which is treated as indebtedness under GAAP, except any such balance
that constitutes an accrued expense or trade payable, or similar
obligations to trade creditors incurred in the ordinary course of business;
(5) all Capital Lease Obligations of such Person;
(6) all Indebtedness of others secured by a Lien on any asset of such
Person, whether or not such Indebtedness is assumed by such Person;
(7) all Indebtedness of others guaranteed by such Person to the extent
of such guarantee; provided that Indebtedness of the Company or its
Subsidiaries that is guaranteed by the Company or the Company's
Subsidiaries shall only be counted once in the calculation of the amount of
Indebtedness of the Company and its Subsidiaries on a consolidated basis;
provided, further, that Standard Securitization Undertakings in connection
with a Qualified Securitization Transaction shall not be considered to be a
guarantee of Indebtedness;
(8) all Attributable Indebtedness;
(9) to the extent not otherwise included in this definition, Hedging
Obligations of such Person; and
(10) all obligations of such Person under conditional sale or other
title retention agreements relating to assets purchased by such Person.
Notwithstanding clause (4) above, the obligation of the Company or any
Restricted Subsidiary to pay the purchase price for an Exercised Vessel Purchase
Option Contract entered into and exercised in the ordinary course of business
and consistent with past practices of the Company and its Restricted
Subsidiaries shall not constitute "Indebtedness" under clause (4) above even
though the purchase price therefor may be due more than six months after
exercise thereof.
"INDENTURE" means this Indenture, as amended, supplemented or
otherwise modified from time to time in accordance with the terms hereof
including, for all purposes of this Indenture and any such supplemental
indenture, the provisions of the Trust Indenture Act that are deemed to be a
part of and govern this Indenture.
"INDEPENDENT APPRAISER" means a Person:
-14-
(1) engaged in the business of appraising vessels who is generally
acceptable to institutional lenders to the shipping industry; and
(2) who (a) is independent of the parties to the transaction in
question and their Affiliates and (b) is not connected with the Company,
any of the Restricted Subsidiaries or any of such Affiliates as an officer,
director, employee, partner or person performing similar functions.
"INITIAL PURCHASERS" means βββββββ Lynch, Pierce, ββββββ & βββββ
Incorporated, β.β. ββββββ Securities Inc., Banc of America Securities LLC and β.
βββββββ Advisors LLC.
"INTEREST" means, with respect to the Notes, interest and Additional
Interest, if any, on the Notes (regardless of whether so stated).
"INTEREST PAYMENT DATE" means each June 15 and December 15 starting
with June 15, 2007.
"INVESTMENTS" means, with respect to any Person, all direct or
indirect investments by such Person in other Persons in the forms of loans
(including guarantees or other obligations), advances or capital contributions,
purchases or other acquisitions for consideration of Indebtedness, Equity
Interests or other securities, together with all items that are or would be
classified as investments on a balance sheet prepared in accordance with GAAP
but excluding extensions of trade credit or advances, deposits and payments to
or with suppliers, lessors or utilities or for workers' compensation in the
ordinary course of business or prepaid expenses or deposits on the balance sheet
of such Person prepared in accordance with GAAP. If the Company or any
Restricted Subsidiary of the Company sells or otherwise disposes of any Equity
Interests of any 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 Company's Investments in such Subsidiary that were not sold or
disposed of in an amount determined as provided in Section 4.11(c). The
acquisition by the Company or any Restricted Subsidiary of the Company of a
Person that holds an Investment in a third Person shall be deemed to be an
Investment by the Company or such Restricted Subsidiary in such third Person in
an amount equal to the Fair Market Value of the Investments held by the acquired
Person in such third Person in an amount determined as provided in Section
4.11(c). Except as otherwise provided in this Indenture, the amount of an
Investment shall be determined at the time the Investment is made and without
giving effect to subsequent changes in value.
"ISSUE DATE" means December 18, 2006, the date of the original
issuance of the Notes under this Indenture.
"LIEN" means, with respect to any asset, any mortgage, lien, pledge,
charge, security interest or encumbrance of any kind on such asset, whether or
not filed, recorded or otherwise perfected under applicable law, including any
conditional sale or other title retention agreement, any lease in the nature
thereof, filing of or agreement to give any financing statement under the
Uniform Commercial Code (or equivalent statutes) of any jurisdiction; provided,
that in
-15-
no event shall an operating lease that is not a Capital Lease Obligation be
deemed to constitute a Lien.
"MAKE-WHOLE REDEMPTION" has the meaning given in Section 5 of the
Notes.
"MAKE-WHOLE REDEMPTION DATE" with respect to a Make-Whole Redemption,
means the date such Make-Whole Redemption is effected.
"MATURITY DATE" when used with respect to any Note, means the date on
which the principal amount of such Note becomes due and payable as therein or
herein provided.
"MOODY'S" means βββββ'β Investors Service, Inc. and its successors.
"NET FFA LOSS AMOUNT" means, for each applicable period, the amount of
net recorded losses (whether realized or unrealized), net of recorded gains
during such period (whether realized or unrealized), in respect of Forward
Freight Agreements not permitted to be entered into under clause (i) of the
definition of "Permitted Hedging Obligations" and related net recorded trading
losses (whether realized or unrealized), net of related cash trading gains for
such period (whether realized or unrealized), of the Company and its Restricted
Subsidiaries for such period.
"NET PROCEEDS" means the aggregate cash proceeds received by the
Company or any of its Restricted Subsidiaries in respect of any Asset Sale
(including, without limitation, any cash received upon the sale or other
disposition of any non-cash consideration received in any Asset Sale), net of
fees, commissions, expenses and other direct costs relating to such Asset Sale,
including, without limitation, (a) fees and expenses related to such Asset Sale
(including legal, accounting and investment banking fees, title and recording
tax fees and sales and brokerage commissions, and any relocation expenses and
severance or shutdown costs incurred as a result of such Asset Sale), (b) all
federal, state, provincial, foreign and local taxes paid or payable as a result
of the Asset Sale, (c) amounts required to be applied to the repayment of
Indebtedness, other than Indebtedness under a Credit Facility, secured by a Lien
on the asset or assets that were the subject of such Asset Sale, (d) amounts
required to be paid to any Person (other than the Company or any of its
Restricted Subsidiaries) owning a beneficial interest in the assets which are
subject to such Asset Sale and (e) any escrow or reserve for adjustment in
respect of the sale price of such assets established in accordance with GAAP and
any reserve in accordance with GAAP against any liabilities associated with such
Asset Sale and retained by the seller after such Asset Sale, including pension
and other post-employment benefit liabilities, liabilities related to
environmental matters and liabilities under any indemnification obligations
associated with such Asset Sale except to the extent that such proceeds are
released from any such escrow or to the extent such reserve is reduced or
eliminated.
"NON-RECOURSE DEBT" means Indebtedness:
(1) as to which neither the Company nor any of its Restricted
Subsidiaries (a) provides credit support of any kind (including any
undertaking, agreement or instrument that would constitute Indebtedness
(other than, with respect to a Securitization Subsidiary, pursuant to
Standard Securitization Undertakings in connection with a Qualified
Securitization Transaction)), (b) is directly or indirectly liable as a
guarantor or
-16-
otherwise (other than, with respect to a Securitization Subsidiary,
pursuant to Standard Securitization Undertaking in connection with a
Qualified Securitization Transaction), or (c) constitutes the lender; and
(2) as to which the lenders have been notified in writing or have
contractually agreed that they shall not have any recourse to the stock or
assets of the Company or any of its Restricted Subsidiaries (other than, in
the case of a Qualified Securitization Transaction, the equity interests
in, any Purchase Money Notes of and the assets of the applicable
Securitization Subsidiary).
"NON-U.S. PERSON" has the meaning assigned to such term in Regulation
S.
"NOTES" means, collectively, the Company's 9 1/2% Senior Notes due
2014 issued in accordance with Section 2.02 (whether issued on the Issue Date,
issued as Additional Notes, issued as Exchange Securities or otherwise issued
after the Issue Date) treated as a single class of securities under this
Indenture, as amended or supplemented from time to time in accordance with the
terms of this Indenture.
"OBLIGATIONS" means any principal, interest, penalties, fees, costs
and expenses, indemnifications, reimbursements, damages and other liabilities
payable under the documentation governing any Indebtedness.
"OFFERING MEMORANDUM" means the offering memorandum of the Company
relating to the Notes dated December 13, 2006.
"OFFICER" means, with respect to any Person, any of the following: the
Chairman of the Board of Directors, the Chief Executive Officer, the Chief
Financial Officer, the President, the Chief Operating Officer, any Vice
President, any Assistant Vice President, the Treasurer, any Assistant Treasurer,
the Secretary, any Assistant Secretary, the Controller or any other officer
designated by the relevant Board of Directors serving in a similar capacity.
"OFFICERS' CERTIFICATE" means a certificate signed by two Officers.
"OPINION OF COUNSEL" means a written opinion from legal counsel that
meets the requirements of Sections 11.04 and 11.05. The counsel may be an
employee of, or counsel to, the Company, a Guarantor or the Trustee. Opinions of
Counsel required to be delivered under this Indenture may have qualifications
customary for opinions of the type required and counsel delivering such Opinions
of Counsel may rely on certificates of the Company or government or other
officials customary for opinions of the type required, including certificates
certifying as to matters of fact, including that various covenants have been
complied with.
"PARI PASSU INDEBTEDNESS" means any Indebtedness of the Company or any
Guarantor that ranks pari passu in right of payment with the Notes or the Note
Guarantees, as applicable.
"PERMITTED ASSET SWAP" means the exchange of property or assets of the
Company or any Restricted Subsidiary for assets to be used by the Company or a
Restricted Subsidiary in a Permitted Business.
-17-
"PERMITTED BUSINESS" means any business conducted by the Company or
any of its Subsidiaries as described in the Offering Memorandum and any
businesses that, in the good faith judgment of the Board of Directors of the
Company, are reasonably related, ancillary, supplemental or complementary
thereto, or reasonable extensions thereof.
"PERMITTED HEDGING OBLIGATIONS" means:
(i) at any time, Hedging Obligations designed to manage interest rates
or interest rate risk or protect against fluctuations in currency exchange
rates, commodity prices or freight rates and not for speculative purposes
(all as determined by the Company on the date of entering into such Hedging
Obligation); and
(ii) obligations in respect of one or more Forward Freight Agreements
not covered by clause (i) above if at the time each such Forward Freight
Agreement is entered into either:
(x) after giving pro forma effect thereto as if such Forward
Freight Agreement had been entered into at the beginning of the
applicable four-quarter period, the Company would have been permitted
to incur at least $1.00 of additional Indebtedness pursuant to the
Fixed Charge Coverage Ratio test set forth in Section 4.10(a); or
(y) the Net FFA Loss Amount shall not have exceeded either (I)
$12.5 million for the calendar year in which such Forward Freight
Agreement is entered into, determined as of the end of the Company's
most recently ended fiscal quarter for which internal financial
statements are available at the time the applicable Forward Freight
Agreement shall be entered into, provided that, to the extent that any
portion of the Net FFA Loss Amount for any prior calendar year is less
than $12.5 million, such unused portion may be carried forward and
utilized in one or more subsequent years until so utilized or (II)
$50.0 million for the period (taken as one accounting period) from
January 1, 2007, to the end of the Company's most recently ended
fiscal quarter for which internal financial statements are available
at the time the applicable Forward Freight Agreement shall be entered
into;
provided that the restrictions set forth in this clause (ii) shall not apply
with respect to:
(I) the settling of a position in respect of an outstanding Forward
Freight Agreement in accordance with the terms thereof; or
(II) the entering into of any Forward Freight Agreement by the Company
or any Restricted Subsidiary if the sole purpose thereof is to offset, in
whole or in part, the risk of loss with respect to any then outstanding
Forward Freight Agreement.
"PERMITTED HOLDERS" each of: (i) ββββββββ βββββββ; (ii) each of her
spouse, siblings, ancestors, descendants (whether by blood, marriage or
adoption, and including stepchildren) and the spouses, siblings, ancestors and
descendants thereof (whether by blood, marriage or adoption, and including
stepchildren) of such natural persons, the beneficiaries,
-18-
estates and legal representatives of any of the foregoing, the trustee of any
bona fide trust of which any of the foregoing, individually or in the aggregate,
are the majority in interest beneficiaries or grantors, and any corporation,
partnership, limited liability company or other Person in which any of the
foregoing, individually or in the aggregate, own or control a majority in
interest; and (iii) all Affiliates controlled by the Persons named in clauses
(i) and (ii) above.
"PERMITTED INVESTMENTS" means:
(1) any Investment in cash or Cash Equivalents;
(2) any Investment in the Company or in a Guarantor;
(3) any Investment by the Company or any Restricted Subsidiary of the
Company in a Person, if as a result of such Investment:
(a) such Person becomes a Guarantor; or
(b) such Person is merged, consolidated or amalgamated with or
into, or transfers or conveys substantially all of its assets to, or
is liquidated into, the Company or a Guarantor;
(4) any Investment made as a result of the receipt of non-cash
consideration from an asset sale that was made pursuant to and in
compliance with Section 4.13;
(5) any Investment made for consideration consisting of Qualified
Equity Interests of the Company;
(6) any Investments received in compromise, settlement or resolution
of (A) obligations of trade creditors or customers, including, without
limitation, pursuant to any plan of reorganization or similar arrangement
upon the bankruptcy or insolvency of any trade creditor or customer; or (B)
litigation, arbitration or other disputes with Persons who are not
Affiliates;
(7) Investments represented by Permitted Hedging Obligations;
(8) Investments in existence on the Issue Date;
(9) Investments in prepaid expenses, negotiable instruments held for
collection and lease, endorsements for deposit or collection in the
ordinary course of business, utility or workers' compensation, performance
and similar deposits entered into as a result of the operations of the
business in the ordinary course of business;
(10) loans and advances to employees and officers of the Company and
its Restricted Subsidiaries in the ordinary course of business not to
exceed $5.0 million at any one time outstanding;
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(11) payroll, travel and similar advances made in the ordinary course
of business to cover matters that are expected at the time of such advances
to be treated as expenses in accordance with GAAP;
(12) Investments held by a Person at the time such Person becomes a
Restricted Subsidiary of the Company or is merged into the Company or a
Restricted Subsidiary of the Company and not made in contemplation of such
Person becoming a Restricted Subsidiary or merger;
(13) any Investment by the Company or any Restricted Subsidiary in a
Securitization Subsidiary (including, without limitation, the payment of
Securitization Fees in connection with a Qualified Securitization
Transaction) or any Investment by a Securitization Subsidiary in any other
Person in connection with a Qualified Securitization Transaction (including
Investments of funds held in accounts required by customary arrangements
governing such Qualified Securitization Transaction in the manner required
by such arrangements), so long as any Investment in a Securitization
Subsidiary is in the form of a Purchase Money Note, a contribution of
additional Securitization Assets or an Equity Interest;
(14) Investments in any Person engaged in a Permitted Business the
Fair Market Value of which, when taken together with all other Investments
made pursuant to this clause (14) since the Issue Date and that remain
outstanding, do not exceed $25.0 million;
(15) Investments in Unrestricted Subsidiaries the Fair Market Value of
which, when taken together with all other Investments made pursuant to this
clause (15) since the Issue Date and that remain outstanding, do not exceed
$10.0 million; and
(16) other Investments in any Person having an aggregate Fair Market
Value, when taken together with all other Investments made pursuant to this
clause (16) that are at the time outstanding, not to exceed the greater of
(x) $25.0 million and (y) 3.5% of Total Tangible Assets.
"PERMITTED LIENS" means:
(1) Liens on assets and property of the Company or any of its
Subsidiaries securing Indebtedness and other related Obligations under
Credit Facilities in an aggregate amount at any time outstanding not to
exceed $475.0 million;
(2) Liens in favor of the Company or any of its Restricted
Subsidiaries;
(3) Liens on property of a Person existing at the time such Person is
merged with or into or consolidated or amalgamated with the Company or any
Restricted Subsidiary of the Company; provided that such Liens were not
created in connection with such merger, consolidation or amalgamation and
do not extend to any assets other than those of the Person merged into or
consolidated or amalgamated with the Company or the Restricted Subsidiary;
-20-
(4) Liens on property (including Capital Stock) existing at the time
of acquisition of the property by the Company or any Restricted Subsidiary
of the Company; provided that such Liens were not incurred in connection
with such acquisition;
(5) Liens incurred or deposits in connection with workers'
compensation, employment insurance or other types of social security,
including Liens securing letters of credit issued in the ordinary course of
business or to secure the performance of tenders, statutory obligations,
surety and appeal bonds, bids, leases, government contracts, performance
and return-of-money bonds and other similar obligations including those
arising from regulatory, contractual or warranty requirements of the
Company and its Subsidiaries, including rights of offset and setoff (in
each case exclusive of obligations for the payment of borrowed money);
(6) Liens securing (i) Indebtedness incurred pursuant to clause (4) of
Section 4.10(b) covering only the assets acquired with or financed by such
Indebtedness and (ii) Capital Lease Obligations incurred in compliance with
this Indenture, in each case, covering only the assets to which such
Capital Lease Obligation relates;
(7) Liens securing Indebtedness incurred to finance (A) the
construction, purchase or lease of, or repairs, improvements or additions
to, one or more Vessels and any Related Assets or (B) the Capital Stock of
a Person the assets of which include one or more Vessels and any Related
Assets (and, in each case, Liens securing Indebtedness that refinances or
replaces any such Indebtedness); provided, however, that, (i) except as
provided in clauses (ii) and (iii) below and except to the extent that any
portion of such Indebtedness is secured by a Lien incurred and outstanding
pursuant to another clause of this definition of "Permitted Liens" or
otherwise in compliance with Section 4.12, the principal amount of
Indebtedness secured by such a Lien in respect of this clause (7) does not
exceed (x) with respect to Indebtedness incurred to finance the
construction of such Vessel(s) or Related Assets, 80% of the sum of (1) the
contract price pursuant to the Vessel Construction Contract(s) for such
Vessel(s) or Related Assets and (2) any other ready for sea cost for such
Vessel(s) or Related Assets (as determined in good faith by the Company),
and (y) with respect to Indebtedness Incurred to finance the acquisition of
such Vessel(s), Related Assets or Person, 80% of the Fair Market Value of
such Vessel(s), Related Assets or the Vessel and Related Assets of such
Person at the time such Lien is incurred, (ii) in the case of Indebtedness
that matures within nine months after the incurrence of such Indebtedness
(other than any Permitted Refinancing Indebtedness of such Indebtedness or
Indebtedness that matures within one year prior to the Stated Maturity of
the Notes), the principal amount of Indebtedness secured by such a Lien
shall not exceed the Fair Market Value of such Vessel(s), Related Assets or
the Vessel and Related Assets of such Person at the time such Lien is
incurred, and (iii) in the case of Indebtedness representing Capital Lease
Obligations relating to a Vessel or Related Assets, the principal amount of
Indebtedness secured by such a Lien shall not exceed 100% of the sum of (1)
the Fair Market Value of such Vessel or Related Assets at the time such
Lien is incurred and (2) any ready for sea cost for such Vessel or Related
Assets (as determined in good faith by the Company);
-21-
(8) Liens arising from Uniform Commercial Code financing statements
filings or other applicable similar filings regarding operating leases and
vessel charters entered into by the Company and its Restricted Subsidiaries
in the ordinary course of business;
(9) Liens incurred in the ordinary course of business of the Company
or any Restricted Subsidiary arising from Vessel chartering, drydocking,
maintenance, repair, refurbishment or replacement, the furnishing of
supplies and bunkers to Vessels and Related Assets, repairs and
improvements to Vessels and Related Assets, masters', officers' or crews'
wages and maritime Liens;
(10) Liens for salvage;
(11) Liens existing on the date of this Indenture (other than Liens
under the Credit Agreement);
(12) Liens for taxes, assessments or governmental charges or claims
that are not yet due 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 is required in
conformity with GAAP has been made therefor;
(13) Liens imposed by law, such as carriers', warehousemen's,
landlord's, suppliers' and mechanics' Liens, in each case, incurred in the
ordinary course of business;
(14) survey exceptions, easements or reservations of, or rights of
others for, licenses, rights-of-way, sewers, electric lines, telegraph and
telephone lines and other similar purposes, or zoning or other restrictions
as to the use of real property that do not materially adversely affect the
operation of the business of the Company and its Restricted Subsidiaries,
taken as a whole;
(15) Liens created for the benefit of (or to secure) the Notes (or the
Note Guarantees) or payment obligations to the Trustee;
(16) Liens to secure any Permitted Refinancing Indebtedness permitted
to be incurred under this Indenture; provided, however, that such Liens (a)
are not materially more favorable to the lienholders with respect to such
Liens than the Liens in respect of the Indebtedness being refinanced, and
(b) do not extend to or cover any property or assets of the Company or any
of its Restricted Subsidiaries not securing the Indebtedness so refinanced
(other than any improvements or accessions to property or assets securing
the Indebtedness so refinanced);
(17) Liens arising by reason of any judgment, decree or order of any
court not giving rise to an Event of Default;
(18) Liens and rights of setoff in favor of a bank imposed by law and
incurred in the ordinary course of business on deposit accounts maintained
with such bank and cash and Cash Equivalents in such accounts;
-22-
(19) 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;
(20) Liens securing Permitted Hedging Obligations which Permitted
Hedging Obligations relate to Indebtedness that is otherwise permitted
under this Indenture; provided, however, that if such Permitted Hedging
Obligation is a Forward Freight Agreement such Lien shall not extend to any
property or asset of the Company or any Restricted Subsidiary other than
funds of the Company or such Restricted Subsidiary maintained in the
ordinary course of business in deposit accounts with the clearinghouse
clearing such Forward Freight Agreement;
(21) Liens arising under a contract over goods, documents of title to
goods and related documents and insurances and their proceeds, in each case
in respect of documentary credit transactions entered into in the ordinary
course of business;
(22) Liens arising under any retention of title, hire, purchase or
conditional sale arrangement or arrangements having similar effect in
respect of goods supplied to the Company or a Restricted Subsidiary in the
ordinary course of business;
(23) Liens on Securitization Assets transferred to a Securitization
Subsidiary or on assets of a Securitization Subsidiary or pledges of the
equity interests in or Purchase Money Notes of a Securitization Subsidiary,
in each case, in connection with a Qualified Securitization Transaction;
(24) any extension, renewal or replacement, in whole or in part, of
any Lien described in the foregoing clauses (1) through (22); provided that
any such extension, renewal or replacement is no more restrictive in any
material respect that the Lien so extended, renewed or replaced and does
not extend to any additional property or assets; and
(25) Liens incurred by the Company or any Restricted Subsidiary of the
Company with respect to obligations that do not exceed $25.0 million at any
one time outstanding.
For purposes of determining what category of Permitted Lien that any
Lien shall be included in, the Company in its sole discretion may classify such
Lien on the date of its incurrence and later reclassify all or a portion of such
Lien in any manner that complies with this definition.
"PERMITTED REFINANCING INDEBTEDNESS" means any Indebtedness,
Disqualified Stock or preferred stock of the Company or any of its Restricted
Subsidiaries issued in exchange for, or the net proceeds of which are used to
refund, refinance, replace, defease or discharge, other Indebtedness,
Disqualified Stock or preferred stock of the Company or any of its Restricted
Subsidiaries; provided that, in the case of Indebtedness which is not being used
to concurrently refinance or defease the Notes in full:
-23-
(1) the principal amount (or accreted value, if applicable) or
mandatory redemption amount of such Permitted Refinancing Indebtedness does
not exceed the principal amount (or accreted value, if applicable) or
mandatory redemption amount, plus accrued interest or dividends in
connection therewith, of the Indebtedness, Disqualified Stock or preferred
stock extended, refinanced, renewed, replaced, defeased or refunded (plus
all dividends and accrued interest on such Indebtedness, Disqualified Stock
or preferred stock and the amount of all fees, expenses, premiums and other
amounts incurred in connection therewith);
(2) such Permitted Refinancing Indebtedness has a final maturity or
final Redemption Date either (i) no earlier than the final maturity or
final Redemption Date of the Indebtedness being extended, refinanced,
renewed, replaced, defeased or refunded or (ii) after the Maturity Date;
(3) the portion, if any, of the Indebtedness, Disqualified Stock or
preferred stock being extended, refinanced, renewed, replaced, defeased or
refunded has a Weighted Average Life to Maturity equal to or greater than
the Weighted Average Life to Maturity of, the Indebtedness, Disqualified
Stock or preferred stock being extended, refinanced, renewed, replaced,
defeased or refunded;
(4) if the Indebtedness, Disqualified Stock or preferred stock being
extended, refinanced, renewed, replaced, defeased or refunded is
subordinated in right of payment to the Notes or a Guarantee, such
Permitted Refinancing Indebtedness is subordinated in right of payment to
the Notes or a Guarantee on terms at least as favorable to the Holders of
Notes as those contained in the documentation governing the Indebtedness,
Disqualified Stock or preferred stock being extended, refinanced, renewed,
replaced, defeased or refunded; and
(5) such Indebtedness is incurred either by (i) if a Restricted
Subsidiary that is not a Guarantor is the obligor on the Indebtedness being
extended, refinanced, renewed, replaced, defeased or refunded, any
Restricted Subsidiary that is not a Guarantor or (ii) the Company or
Guarantor (or any Restricted Subsidiary that becomes a Guarantor in
contemplation of or upon the incurrence of such Permitted Refinancing
Indebtedness).
"PERSON" means any individual, corporation, partnership, joint
venture, association, joint-stock company, trust, unincorporated organization,
limited liability company or government or other entity.
"PRINCIPAL" means, with respect to the Notes, the principal of and
premium, if any, on the Notes.
"PRIVATE PLACEMENT LEGEND" means the legends in the form set forth in
Exhibit B to be placed on the Notes except where otherwise permitted by the
provisions of this Indenture.
"PURCHASE MONEY NOTE" means a promissory note of a Securitization
Subsidiary to the Company or any Restricted Subsidiary of the Company, which
note (a) must be repaid from cash available to the Securitization Subsidiary,
other than amounts required to be
-24-
established as reserves, amounts paid to investors in respect of interest,
principal and other amounts owing to such investors and amounts paid in
connection with the purchase of newly generated or newly acquired Securitization
Assets and (b) may be subordinated to the payments described in clause (a).
"QUALIFIED EQUITY INTERESTS" means Equity Interests of the Company
other than Disqualified Stock.
"QUALIFIED INSTITUTIONAL BUYER" or "QIB" shall have the meaning
specified in Rule 144A under the Securities Act.
"QUALIFIED SECURITIZATION TRANSACTION" means any transaction or series
of transactions entered into by the Company or any of its Restricted
Subsidiaries pursuant to which the Company or such Restricted Subsidiary sells,
contributes, conveys or otherwise transfers to (a) a Securitization Subsidiary
(in the case of a transfer by the Company or any of its Restricted Subsidiaries)
and (b) any other Person (in the case of a transfer by a Securitization
Subsidiary), or transfers an undivided interest in or grants a security interest
in, any Securitization Assets (whether now existing or arising in the future) of
the Company or any of its Restricted Subsidiaries, and any assets related
thereto, including, without limitation, all collateral securing such
Securitization Assets, all contracts and all guarantees or other obligations in
respect of such Securitization Assets, proceeds of such Securitization Assets
and all other assets which are customarily transferred or in respect of which
security interests are customarily granted in connection with a securitization
transaction of such type; provided such transaction is on market terms at the
time the Company or such Restricted Subsidiary enters into such transaction.
"RECORD DATE" means the applicable Record Date specified in the Notes;
provided that if any such date is not a Business Day, the Record Date shall be
the first day immediately succeeding such specified day that is a Business Day.
"REDEMPTION DATE," when used with respect to any Note to be redeemed,
means the date fixed for such redemption pursuant to this Indenture and the
Notes.
"REDEMPTION PRICE," when used with respect to any Note to be redeemed
on a Redemption Date, means the price fixed for such redemption pursuant to and
in accordance with this Indenture, exclusive of accrued and unpaid interest and
Additional Interest, if any, thereon to the Redemption Date, unless otherwise
specifically provided herein.
"REGISTRATION RIGHTS AGREEMENT" means (i) the Registration Rights
Agreement dated as of the Issue Date among the Company, the Guarantors and the
Initial Purchasers and (ii) any other registration rights agreement entered into
in connection with an issuance of Additional Notes in a private offering after
the Issue Date.
"REGULATION S" means Regulation S under the Securities Act.
"REGULATION S-X" means Regulation S-X under the Securities Act.
"RELATED ASSET" means (i) any insurance policies and contracts from
time to time in force with respect to a Vessel, (ii) the Capital Stock of any
Restricted Subsidiary of the
-25-
Company owning a Vessel and related assets, (iii) any requisition compensation
payable in respect of any compulsory acquisition of a Vessel, (iv) any earnings
derived from the use or operation thereof and/or any earnings account with
respect to such earnings, (v) any charters, operating leases, contracts of
affreightment, Vessel purchase options and related agreements entered and any
security or guarantee in respect of the charterer's or lessee's obligations
under such charter, lease, Vessel purchase option or agreement, (vi) any cash
collateral account established with respect to a Vessel pursuant to the
financing arrangement with respect thereto, (vii) any building, conversion or
repair contracts relating to a Vessel and any security or guarantee in respect
of the builder's obligations under such contract and (viii) any security
interest in, or agreement or assignment relating to, any of the foregoing or any
mortgage in respect of a Vessel and any asset reasonably related, ancillary or
complementary thereto.
"RESPONSIBLE OFFICER" means, when used with respect to the Trustee,
any officer in the Corporate Trust Office of the Trustee, including any vice
president, assistant vice president, assistant secretary, assistant treasurer,
trust officer or any other officer of the Trustee who currently performs
functions similar to those performed by the persons who at the time shall be
such officers, respectively, or to whom any corporate trust matter is referred
because of such officer's knowledge of and familiarity with the particular
subject and shall also mean any officer who shall have direct responsibility for
the administration of this Indenture.
"RESTRICTED INVESTMENT" means an Investment other than a Permitted
Investment.
"RESTRICTED SECURITY" means a Note that constitutes a "Restricted
Security" within the meaning of Rule 144(a)(3) under the Securities Act;
provided, however, that the Trustee shall be entitled to request and
conclusively rely on an Opinion of Counsel with respect to whether any Note
constitutes a Restricted Security.
"RESTRICTED SUBSIDIARY" of a Person means any Subsidiary of such
Person that is not an Unrestricted Subsidiary.
"RULE 144A" means Rule 144A under the Securities Act.
"S&P" means Standard & Poor's Ratings Services, a division of the
ββββββ-ββββ Companies, Inc., and its successors.
"SALE/LEASEBACK TRANSACTION" means any arrangement with any Person or
to which any such Person is a party providing for the leasing to the Company or
a Subsidiary of the Company of any property, whether owned by the Company or any
of its Subsidiaries at the Issue Date or later acquired, which has been or is to
be sold or transferred by the Company or any of its Subsidiaries to such Person
or to any other Person from whom funds have been or are to be advanced by such
Person on the security of such property.
"SECURED INDEBTEDNESS" means any Indebtedness (other than Subordinated
Indebtedness) of the Company or a Restricted Subsidiary of the Company secured
by a Lien on any of its assets.
"SEC" means the U.S. Securities and Exchange Commission.
-26-
"SECURITIES ACT" means the U.S. Securities Act of 1933, as amended, or
any successor statute or statutes thereto and, in each case, the rules and
regulations promulgated by the SEC thereunder.
"SECURITIZATION ASSETS" means any accounts receivable, instruments,
chattel paper, contract rights, general intangibles or revenue streams subject
to a Qualified Securitization Transaction and any assets related thereto (other
than Vessels), including, without limitation, all collateral securing such
assets, all contracts and all guarantees or other supporting obligations in
respect of such assets and all proceeds of the forgoing.
"SECURITIZATION FEES" means all yield, interest or other payments made
directly or by means of discounts with respect to any interest issued or sold in
connection with, and other fees paid to a Person that is not a Securitization
Subsidiary in connection with, any Qualified Securitization Transaction.
"SECURITIZATION REPURCHASE OBLIGATION" means any obligation of a
seller of Securitization Assets in a Qualified Securitization Transaction to
repurchase Securitization Assets arising as a result of a breach of Standard
Securitization Undertakings, including as a result of a Securitization Asset or
portion thereof becoming subject to any asserted defense, dispute, offset or
counterclaim of any kind as a result of any action taken by, any failure to take
action by or any other event relating to, the seller.
"SECURITIZATION SUBSIDIARY" means a Subsidiary of the Company (or
another Person formed for the purposes of engaging in a Qualified Securitization
Transaction in which the Company or any Subsidiary of the Company makes an
Investment and to which the Company or any Subsidiary of the Company transfers
Securitization Assets and related assets):
(1) that is formed solely for the purpose of, and that engages in no
activities other than activities in connection with, financing
Securitization Assets of the Company and/or its Restricted Subsidiaries,
and any activities incidental thereto;
(2) that is designated by the Board of Directors of the Company or
such other Person as a Securitization Subsidiary pursuant to resolution set
forth in an Officers' Certificate and delivered to the Trustee;
(3) that, other than Securitization Assets, has total assets at the
time of such creation and designation with a book value of $10,000 or less;
(4) has no Indebtedness other than Non-Recourse Debt;
(5) with which neither the Company nor any Restricted Subsidiary of
the Company has any material contract, agreement, arrangement or
understanding other than contracts, agreements, arrangements and
understandings on terms not materially less favorable to the Company or
such Restricted Subsidiary than those that might be obtained at the time
from Persons that are not Affiliates of the Company in connection with a
Qualified Securitization Transaction (as determined in good faith by the
Company) and Securitization Fees payable in the ordinary course of business
in connection with such a Qualified Securitization Transaction; and
-27-
(6) with respect to which neither the Company nor any Restricted
Subsidiary of the Company has any obligation (a) to make any additional
capital contribution (other than Securitization Assets) or similar payment
or transfer thereto or (b) to maintain or preserve the solvency or any
balance sheet term, financial condition, level of income or results of
operations thereof.
"SIGNIFICANT SUBSIDIARY" means any Subsidiary that would be a
"significant subsidiary" as defined in Article 1, Rule 1-02(w) of Regulation
S-X, promulgated pursuant to the Securities Act, as such Regulation is in effect
on the date of this Indenture.
"STANDARD SECURITIZATION UNDERTAKINGS" means representations,
warranties, covenants and indemnities entered into by the Company or any
Restricted Subsidiary of the Company which have been determined by the Company
in good faith to be reasonably customary in Qualified Securitization
Transactions, including, without limitation, those relating to the servicing of
the assets of a Securitization Subsidiary, it being understood that any
Securitization Repurchase Obligation shall be deemed to be a Standard
Securitization Undertaking.
"STATED MATURITY" means, with respect to any installment of principal
on any series of Indebtedness, the date on which the payment of principal was
scheduled to be paid in the documentation governing such Indebtedness as of the
date of this Indenture (or, if incurred after the date of this Indenture, as of
the date of the initial incurrence thereof) and shall not include any contingent
obligations to repay, redeem or repurchase any such principal prior to the date
originally scheduled for the payment thereof.
"SUBORDINATED INDEBTEDNESS" means Indebtedness of the Company or any
Guarantor that is subordinated in right payment to the Notes or the Note
Guarantees of such Guarantor, as the case may be.
"SUBSIDIARY" means, with respect to any specified Person:
(1) any corporation, association or other business entity of which
more than 50% of the total voting power of shares of Capital Stock entitled
(without regard to the occurrence of any contingency) to vote in the
election of directors, managers or Trustees of the corporation, association
or other business entity is at the time owned or controlled, directly or
indirectly, by that Person or one or more Subsidiaries of such Person (or a
combination thereof); and
(2) any other Person of which at least a majority of the voting
interest (without regard to the occurrence of any contingency) is at the
time directly or indirectly owned by such Person or one or more
Subsidiaries of such Person (or a combination thereof).
"TAX" shall mean any tax, duty, levy, impost, assessment or other
governmental charge (including penalties, interest and any other liabilities
related thereto).
"TAXING AUTHORITY" shall mean any government or political subdivision
or territory or possession of any government or any authority or agency therein
or thereof having power to tax.
-28-
"TOTAL TANGIBLE ASSETS" means the total consolidated assets, less
goodwill and intangibles, of the Company and its Restricted Subsidiaries, as
shown on the most recent balance sheet of the Company prepared in accordance
with GAAP.
"TRUST INDENTURE ACT" means the Trust Indenture Act of 1939, as
amended, as in effect on the date on which this Indenture is qualified under the
Trust Indenture Act, except as otherwise set forth in Section 9.03.
"TRUSTEE" means the party named as such in the preamble to this
Indenture until a successor replaces it in accordance with the provisions of
this Indenture and thereafter means such successor.
"UNRESTRICTED SUBSIDIARY" means any Subsidiary of the Company that is
designated by the Board of Directors of the Company as an Unrestricted
Subsidiary pursuant to a board resolution, but only to the extent that such
Subsidiary:
(1) has no Indebtedness other than Non-Recourse Debt;
(2) except as permitted by Section 4.14 is not party to any agreement,
contract, arrangement or understanding with the Company or any Restricted
Subsidiary of the Company unless the terms of any such agreement, contract,
arrangement or understanding are not materially less favorable to the
Company or such Restricted Subsidiary than those that might be obtained at
the time from Persons who are not Affiliates of the Company;
(3) is a Person with respect to which neither the Company nor any of
its Restricted Subsidiaries has any direct or indirect obligation (a) to
make any additional capital contributions (other than, with respect to a
Securitization Subsidiary, Securitization Assets transferred in connection
with a Qualified Securitization Transaction) or similar payment or transfer
thereto or (b) to maintain or preserve the solvency or any balance sheet
term, financial condition, level of income or results of operations
thereof; and
(4) has not guaranteed or otherwise directly or indirectly provided
credit support for any Indebtedness of the Company or any of its Restricted
Subsidiaries.
Any designation of a Subsidiary of the Company as an Unrestricted
Subsidiary shall be evidenced to the Trustee by filing with the Trustee a
certified copy of the board resolution giving effect to such designation and an
Officers' Certificate certifying that such designation complied with the
preceding conditions and was permitted by Section 4.11. 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 4.10, the Company shall be in default of
such Section. The Board of Directors of the Company may at any time designate
any Unrestricted Subsidiary to be a Restricted Subsidiary; provided that such
designation shall be deemed to be an incurrence of Indebtedness by a Restricted
Subsidiary of the Company of any outstanding Indebtedness of such
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Unrestricted Subsidiary and such designation shall only be permitted if (1) such
Indebtedness is permitted under Section 4.10, calculated on a pro forma basis as
if such designation had occurred at the beginning of the four-quarter reference
period; and (2) no Default or Event of Default would be in existence immediately
following such designation.
"U.S. LEGAL TENDER" means such coin or currency of the United States
of America that at the time of payment shall be legal tender for the payment of
public and private debts.
"U.S. DOLLAR EQUIVALENT" means, with respect to any monetary amount in
a currency other than U.S. dollars, at any time for the determination thereof,
the amount of U.S. dollars obtained by converting such foreign currency involved
in such computation into U.S. dollars at the spot rate for the purchase of U.S.
dollars with the applicable foreign currency as quoted by Reuters at
approximately 10:00 A.M. (New York time) on the date not more than two Business
Days prior to such determination.
"VESSEL" means one or more shipping vessels whose primary purpose is
the maritime transportation of cargo or which are otherwise engaged, used or
useful in any business activities of the Company and its Restricted Subsidiaries
and which are owned by and registered (or to be owned by and registered) in the
name of the Company or any of its Restricted Subsidiaries or operated or to be
operated by the Company or any of its Restricted Subsidiaries pursuant to a
lease or other operating agreement constituting a Capital Lease Obligation, in
each case together with all related spares, equipment and any additions or
improvements.
"VESSEL CONSTRUCTION CONTRACT" means any contract for the construction
(or construction and acquisition) of a Vessel and any Related Assets entered
into by the Company or any Restricted Subsidiary, including any amendments,
supplements or modifications thereto or change orders in respect thereof.
"VESSEL PURCHASE OPTION CONTRACT" means any contract granting the
Company or any Restricted Subsidiary the option to purchase one or more Vessels
and any Related Assets, including any amendments, supplements or modifications
thereto.
"VOTING STOCK" of any Person as of any date means the Capital Stock of
such Person that is at the time entitled to vote in the election of the Board of
Directors of such Person.
"WEIGHTED AVERAGE LIFE TO MATURITY" means, when applied to any
Indebtedness, Disqualified Stock or preferred stock 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 of such Indebtedness or redemption or similar payment in respect of
such Disqualified Stock or preferred stock, by (b) the number of years
(calculated to the nearest one-twelfth) that shall elapse between such date
and the making of such payment; by
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(2) the then outstanding principal amount of such Indebtedness or the
maximum amount payable upon maturity of, or pursuant to any mandatory
redemption provisions of, amount of such Disqualified Stock or preferred
stock.
"WHOLLY OWNED RESTRICTED SUBSIDIARY" of any Person means a Restricted
Subsidiary of such Person, all of the outstanding Equity Interests of which
(other than directors' qualifying shares or shares required by applicable law to
be held by a Person other than the Company or any of its Subsidiaries) are at
the time owned by such Person or another Wholly Owned Restricted Subsidiary of
such Person.
SECTION 1.02. Other Definitions.
Defined in
Term Section
--------------------------------------------------------------- --------------
"144A Global Note"............................................. 2.01
"Additional Amounts"........................................... 4.20(b)
"Additional Interest Notice"................................... 4.19
"Additional Notes"............................................. 2.02
"Affiliate Transaction"........................................ 4.14(a)
"Asset Sale Offer"............................................. 4.13(e)
"Asset Sale Payment Date"...................................... 4.13(f)(2)
"Authentication Order"......................................... 2.02
"Base Currency"................................................ 11.16(b)(1)(A)
"Change of Control Offer"...................................... 4.09
"Change of Control Payment".................................... 4.09
"Change of Control Payment Date"............................... 4.09
"Company"...................................................... Preamble
"Covenant Defeasance".......................................... 8.04
"Event of Default"............................................. 6.01
"Excess Proceeds".............................................. 4.13(e)
"Global Note".................................................. 2.01
"Guarantee Obligations"........................................ 10.01
"incur"........................................................ 4.10(a)
"Initial Global Notes"......................................... 2.01
"Initial Notes"................................................ 2.02
"Judgment Currency"............................................ 11.16(b)(1)(A)
"Legal Defeasance"............................................. 8.03
"Navios"....................................................... Preamble
"Notation of Guarantee"........................................ 10.03
"Notice of Acceleration"....................................... 6.02
"Offered Price"................................................ 4.13(e)
"Participants"................................................. 2.15(a)
"Paying Agent"................................................. 2.03
"Payment Amount"............................................... 4.13(e)
"Payment Default".............................................. 6.01(5)(a)
"Permitted Debt"............................................... 4.10(b)
"Physical Notes"............................................... 2.01
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Defined in
Term Section
--------------------------------------------------------------- --------------
"Primary Lien"................................................. 4.12(a)(2)
"rate of exchange"............................................. 11.16(d)
"Registrar".................................................... 2.03
"Regulation S Global Note"..................................... 2.01
"Relevant Taxing Jurisdiction"................................. 4.20(a)
"Reinvestment Termination Date"................................ 4.13(d)
"Restricted Payments".......................................... 4.11(a)
"Specified Courts"............................................. 11.08
"Surviving Entity"............................................. 2.02
"Total Loss"................................................... 4.10(b)(5)
SECTION 1.03. Incorporation by Reference of Trust Indenture Act.
Whenever this Indenture refers to a provision of the Trust Indenture
Act, such provision is incorporated by reference in, and made a part of, this
Indenture. The following Trust Indenture Act terms used in this Indenture have
the following meanings:
"indenture securities" means the Notes.
"indenture security holder" means a Holder.
"indenture to be qualified" means this Indenture.
"indenture trustee" or "institutional trustee" means the Trustee.
"obligor" in respect of this Indenture or on the Notes means the
Company, any Guarantor and any other obligor on the Notes.
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 SEC rule and not otherwise defined herein have the
meanings assigned to them therein.
SECTION 1.04. Rules of Construction.
For all purposes under this Indenture and the Notes, except as
otherwise provided and 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 (for the avoidance of doubt, determinations
of whether an action is for speculative purposes is not an accounting
term);
(3) words in the singular include the plural, and words in the plural
include the singular;
(4) provisions apply to successive events and transactions;
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(5) "herein," "hereof" and other words of similar import refer to this
Indenture as a whole and not to any particular Article, Section or other
subdivision;
(6) the words "including," "includes" and similar words shall be
deemed to be followed by "without limitation";
(7) references to "$" or dollars are to United States dollars; and
(8) references to Subsidiaries are to Subsidiaries of the Company.
ARTICLE TWO
THE NOTES
SECTION 2.01. Form and Dating.
The Notes and the Trustee's certificate of authentication shall be
substantially in the form of Exhibit A hereto. The Notes may have notations,
legends or endorsements required by law, stock exchange rule or usage. The
Company shall approve the form of the Notes and any notation, legend or
endorsement on them. Each Note shall be dated the date of its issuance and show
the date of its authentication. Each Note shall have an executed Notation of
Guarantee from each of the Guarantors existing on the Issue Date endorsed
thereon substantially in the form of Exhibit E.
The terms and provisions contained in the Notes and the Note
Guarantees shall constitute, and are hereby expressly made, a part of this
Indenture and, to the extent applicable, the Company, the Guarantors and the
Trustee, by their execution and delivery of this Indenture, expressly agree to
such terms and provisions and to be bound thereby. However, to the extent any
provision of any Note conflicts with the express provisions of this Indenture,
the provisions of this Indenture shall govern and be controlling.
Notes offered and sold in reliance on Rule 144A shall be issued
initially in the form of a single permanent global Note in registered form,
substantially in the form set forth in Exhibit A (the "144A GLOBAL NOTE"),
deposited with the Trustee, as custodian for the Depository, duly executed by
the Company (and having an executed Notation of Guarantee from each of the
Guarantors existing on the Issue Date endorsed thereon) and authenticated by the
Trustee as hereinafter provided and shall bear the legends set forth in Exhibit
B.
Notes offered and sold in offshore transactions in reliance on
Regulation S shall be issued initially in the form of a single permanent global
Note in registered form substantially in the form of Exhibit A (the "REGULATION
S GLOBAL NOTE"; and together with the 144A Global Note, the "INITIAL GLOBAL
NOTES"), deposited with the Trustee, as custodian for the Depository, duly
executed by the Company (and having an executed Notation of Guarantee from each
of the Guarantors existing on the Issue Date endorsed thereon) and authenticated
by the Trustee as hereinafter provided and shall bear the legends set forth in
Exhibit B.
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Notes issued after the Issue Date shall be issued initially in the
form of one or more global Notes in registered form, substantially in the form
set forth in Exhibit A, deposited with the Trustee, as custodian for the
Depository, duly executed by the Company (and having an executed Notation of
Guarantee from each of the Guarantors endorsed thereon) and authenticated by the
Trustee as hereinafter provided and shall bear any legends required by
applicable law (together with the Initial Global Notes, the "GLOBAL NOTES") or
as Physical Notes. With respect to Additional Notes, any Additional Interest, if
set forth in the applicable Registration Rights Agreement, may be paid to
holders of such Additional Notes immediately prior to the making or the
consummation of the applicable Exchange Offer regardless of any other provision
regarding record dates set forth herein; provided that the Company shall give
advance written notice thereof to the Trustee.
The aggregate principal amount of the Global Notes may from time to
time be increased or decreased by adjustments made on the records of the
Trustee, as custodian for the Depository, as hereinafter provided. Notes issued
in exchange for interests in a Global Note pursuant to Section 2.16 may be
issued in the form of permanent certificated Notes in registered form in
substantially the form set forth in Exhibit A and bearing the applicable
legends, if any, (the "PHYSICAL NOTES").
Subject to the provisions of Section 4.10, the Company may issue, from
time to time, Additional Notes under this Indenture which shall have identical
terms as the Initial Notes issued on the Issue Date or the Exchange Notes issued
therefore (in each case, other than with respect to the date of issuance,
registration rights, issue price and amount of interest payable on the first
interest payment date applicable thereto), as the case may be. Any Additional
Notes shall be part of the same issue as the Notes being issued on the Issue
Date and will vote and consent on all matters as one class with the Notes being
issued on the Issue Date, including, without limitation, waivers, amendments,
redemptions, Change of Control Offers and Net Proceeds Offers.
SECTION 2.02. Execution, Authentication and Denomination; Additional Notes;
Exchange Securities.
One Officer of the Company (who shall have been duly authorized by all
requisite corporate actions) shall sign the Notes for the Company by manual or
facsimile signature. One Officer of a Guarantor (who shall have been duly
authorized by all requisite corporate actions) shall sign the Notation of
Guarantee for such Guarantor by manual or facsimile signature.
If an Officer whose signature is on a Note or Notation of Guarantee,
as the case may be, was an Officer at the time of such execution but no longer
holds that office at the time the Trustee authenticates the Note, the Note shall
nevertheless be valid.
A Note (and the Notations of Guarantees in respect thereof) shall not
be valid until an authorized signatory of the Trustee manually signs the
certificate of authentication on the Note. The signature shall be conclusive
evidence that the Note has been duly and validly authenticated under this
Indenture.
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The Trustee shall authenticate (i) on the Issue Date, Notes for
original issue in the aggregate principal amount not to exceed $300,000,000 (the
"INITIAL NOTES"), (ii) additional Notes (the "ADDITIONAL NOTES") having
identical terms and conditions to the Initial Notes, except for issue date,
issue price and first interest payment date, in an unlimited amount (so long as
not otherwise prohibited by the terms of this Indenture, including, without
limitation, Section 4.10) and (iii) Exchange Securities (x) in exchange for a
like principal amount of Initial Notes or (y) in exchange for a like principal
amount of Additional Notes, in each case upon a written order of the Company in
the form of a certificate of an Officer of the Company (an "AUTHENTICATION
ORDER"). Each such Authentication Order shall specify the amount of Notes to be
authenticated and the date on which the Notes are to be authenticated, whether
the Notes are to be Initial Notes, Exchange Securities or Additional Notes and
whether the Notes are to be issued as certificated Notes or Global Notes or such
other information as the Trustee may reasonably request.
All Notes issued under this Indenture shall be treated as a single
class for all purposes under this Indenture. None of the Initial Notes, any
Additional Notes or the Exchange Notes shall have the right to vote or consent
as a separate class on any manner (it being understood that the foregoing shall
in no way limit the rights of Holders pursuant to Section 9.02(b)). The
Additional Notes shall bear any legend required by applicable law.
The Trustee may appoint an authenticating agent reasonably acceptable
to the Company to authenticate Notes. Unless otherwise provided in the
appointment, an authenticating agent may authenticate Notes whenever the Trustee
may do so. Each reference in this Indenture to authentication by the Trustee
includes authentication by such agent. An authenticating agent has the same
rights as an Agent to deal with the Company and Affiliates of the Company. The
Trustee shall have the right to decline to authenticate and deliver any Notes
under this Indenture if the Trustee, being advised by counsel, determines that
such action may not lawfully be taken or if the Trustee in good faith shall
determine that such action would expose the Trustee to personal liability.
The Notes shall be issuable only in registered form without coupons in
denominations of $1,000 and integral multiples of $1,000 in excess thereof.
In case the Company, pursuant to and in accordance with Article Five,
shall, in one or more related transactions, be consolidated or merged with or
into any other Person or shall sell, assign, transfer, lease, convey or
otherwise dispose of all or substantially all the assets of the Company and its
Restricted Subsidiaries taken as a whole to any Person, and the surviving Person
resulting from such consolidation or surviving such merger or into which the
Company shall have been merged, or the surviving Person which shall have
participated in the sale, assignment, transfer, conveyance or other disposition
as aforesaid, shall have assumed all of the obligations of the Company under the
Notes and this Indenture pursuant to agreements reasonably satisfactory to the
Trustee in accordance with Article Five (such Person, the "SURVIVING ENTITY"),
any of the Global Notes authenticated or delivered prior to such consolidation,
merger, sale, assignment, transfer, conveyance or other disposition may, from
time to time, at the request of the surviving Person, be exchanged for other
Global Notes executed in the name of the surviving Person with only such changes
in phraseology as may be appropriate to reflect the identity of the Surviving
Person, but otherwise in substance of like
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tenor, terms and conditions in all respects as the Global Notes surrendered for
such exchange and of like principal amount; and the Trustee, upon the request of
the surviving Person, shall authenticate and deliver Global Notes as specified
in such request for the purpose of such exchange. If Global Notes shall at any
time be authenticated and delivered in any new name of a Surviving Entity
pursuant to this Section 2.02 in exchange or substitution for or upon
registration of transfer of any Notes, such Surviving Entity, 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 2.03. Registrar and Paying Agent.
The Company shall maintain or cause to be maintained an office or
agency in the United States where (a) Notes may be presented for payment or
surrendered for registration of transfer or for exchange ("REGISTRAR"), (b)
Notes may, subject to Section 2 of the Notes, be presented or surrendered for
payment ("PAYING AGENT") and (c) notices and demands to or upon the Company in
respect of the Notes and this Indenture may be served. The Company may also from
time to time designate one or more other offices or agencies where the Notes may
be presented or surrendered for any or all such purposes and may from time to
time rescind such designations; provided, however, that no such designation or
rescission shall in any manner relieve the Company of its obligation to maintain
or cause to be maintained an office or agency in the United States, for such
purposes. At the option of the Company, the payment of interest and Additional
Interest, if any, may be made by check mailed to the Holders at their respective
addresses set forth in the register of Holders; provided that for Holders owning
at least $100,000 aggregate principal amount of Notes that have given wire
transfer instructions to the Company at least ten (10) Business Days prior to
the applicable payment date, the Company shall make all payments of principal,
interest, premium and Additional Interest, if any, by wire transfer of
immediately available funds to the accounts specified by the Holders thereof.
The Company or any Subsidiary of the Company may act as Registrar or Paying
Agent, except that for the purposes of Article Eight, neither the Company nor
any Affiliate of the Company shall act as Paying Agent. The Registrar shall keep
a register of the Notes and of their transfer and exchange. The Company, upon
notice to the Trustee, may have one or more co-registrars and one or more
additional paying agents reasonably acceptable to the Trustee. The term
"Registrar" includes any co-registrar and the term "Paying Agent" includes any
additional paying agent. The Company initially appoints the Trustee as Registrar
and Paying Agent until such time as the Trustee has resigned or a successor has
been appointed.
The Company shall enter into an appropriate agency agreement with any
Agent not a party to this Indenture, which agreement shall implement the
provisions of this Indenture that relate to such Agent. The Company shall notify
the Trustee, in advance, of the name and address of any such Agent. If the
Company fails to maintain a Registrar or Paying Agent, the Trustee shall act as
such.
SECTION 2.04. Paying Agent To Hold Assets in Trust.
The Company shall require each Paying Agent other than the Trustee or
the Company or any Subsidiary of the Company to agree in writing that each
Paying Agent shall hold in trust for the benefit of Holders or the Trustee all
assets held by the Paying Agent for the
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payment of principal of, premium or Additional Interest, if any, or interest on,
the Notes (whether such assets have been distributed to it by the Company or any
other obligor on the Notes), and shall notify the Trustee of any Default by the
Company (or any other obligor on the Notes) in making any such payment. The
Company at any time may require a Paying Agent to distribute all assets held by
it to the Trustee and account for any assets disbursed and the Trustee may at
any time during the continuance of any Payment Default, upon written request to
a Paying Agent, require such Paying Agent to distribute all assets held by it to
the Trustee and to account for any assets distributed. Upon distribution to the
Trustee of all assets that shall have been delivered by the Company to the
Paying Agent, the Paying Agent (if other than the Company or a Subsidiary of the
Company) shall have no further liability for such assets. If the Company or a
Subsidiary of the Company acts as Paying Agent, it shall segregate and hold in a
separate trust fund for the benefit of the Holders all money held by it as
Paying Agent. Upon any bankruptcy or reorganization proceedings relating to the
Company, the Trustee shall serve as Paying Agent for the Notes.
SECTION 2.05. Holder Lists.
The Trustee shall preserve in as current a form as is reasonably
practicable the most recent list available to it of the names and addresses of
Holders and shall otherwise comply with Trust Indenture Act Section 312(a). If
the Trustee is not the Registrar, the Company shall furnish to the Trustee at
least seven (7) Business Days prior to each Interest Payment Date and at such
other times as the Trustee may request in writing a list, in such form and as of
such date as the Trustee may reasonably require, of the names and addresses of
Holders, which list may be conclusively relied upon by the Trustee.
SECTION 2.06. Transfer and Exchange.
Subject to Sections 2.15 and 2.16, when Notes are presented to the
Registrar with a request to register the transfer of such Notes or to exchange
such Notes for an equal principal amount of Notes of other authorized
denominations, the Registrar shall register the transfer or make the exchange as
requested if its requirements for such transaction are met; provided, however,
that the Notes surrendered for transfer or exchange shall be duly endorsed or
accompanied by a written instrument of transfer in form satisfactory to the
Company and the Registrar, duly executed by the Holder thereof or his or her
attorney duly authorized in writing. To permit registrations of transfers and
exchanges, the Company shall execute and the Trustee shall authenticate Notes at
the Registrar's request. No service charge shall be made for any registration of
transfer or exchange, but the Company may require payment of a sum sufficient to
cover any transfer tax or similar governmental charge payable in connection
therewith.
The Company shall not be required and, without the prior written
consent of the Company, the Registrar shall not be required to register the
transfer of or exchange of any Note (i) during a period beginning at the opening
of business 15 days before the mailing of a notice of redemption of Notes and
ending at the close of business on the day of such mailing, (ii) selected for
redemption in whole or in part pursuant to Article Three, except the unredeemed
portion of any Note being redeemed in part, (iii) that has been tendered (and
not validly withdrawn) in a Change of Control Offer, and (iv) beginning at the
opening of business on any Record Date and ending on the close of business on
the related Interest Payment Date.
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Any Holder of a beneficial interest in a Global Note shall, by
acceptance of such beneficial interest, agree that transfers of beneficial
interests in such Global Notes may be effected only through a book-entry system
maintained by the Holder of such Global Note (or its agent) in accordance with
the applicable legends thereon, and that ownership of a beneficial interest in
the Note shall be required to be reflected in a book-entry system.
SECTION 2.07. Replacement Notes.
If a mutilated Note is surrendered to the Trustee or if the Holder of
a Note claims that the Note has been lost, destroyed or wrongfully taken, the
Company shall issue and the Trustee shall authenticate a replacement Note if the
Trustee's requirements are met. Such Holder must provide an indemnity bond,
surety or other indemnity, sufficient in the judgment of both the Company and
the Trustee, to protect the Company, the Trustee or any Agent from any loss
which any of them may suffer if a Note is replaced. The Company and the Trustee
may charge such Holder for their respective reasonable out-of-pocket expenses in
replacing a Note pursuant to this Section 2.07, including reasonable fees and
expenses of counsel.
Every replacement Note is an additional obligation of the Company and
every replacement Notation of Guarantee shall constitute an additional
obligation of the Guarantor thereof.
SECTION 2.08. Outstanding Notes.
Notes outstanding at any time are all the Notes that have been
authenticated by the Trustee except those cancelled by it, those delivered to it
for cancellation and those described in this Section as not outstanding. A Note
does not cease to be outstanding because the Company, the Guarantors or any of
their respective Affiliates hold the Note (subject to the provisions of Section
2.09).
If a Note is replaced pursuant to Section 2.07 (other than a mutilated
Note surrendered for replacement), it ceases to be outstanding unless the
Company and a Responsible Officer of the Trustee receive proof satisfactory to
them that the replaced Note is held by a bona fide purchaser. A mutilated Note
ceases to be outstanding upon surrender of such Note and replacement thereof
pursuant to Section 2.07.
If the principal amount of any Note is considered paid under Section
4.01, it ceases to be outstanding and interest (including Additional Interest)
ceases to accrue thereon. If on a Redemption Date or the Maturity Date the
Trustee or Paying Agent (other than the Company or an Affiliate thereof) holds
U.S. Legal Tender or non-callable U.S. Government Securities sufficient to pay
all of the principal and interest due on the Notes payable on that date, then on
and after that date such Notes cease to be outstanding and interest (including
Additional Interest) ceases to accrue thereon.
SECTION 2.09. Treasury Notes.
In determining whether the Holders of the required principal amount of
Notes have concurred in any direction, waiver or consent, Notes owned by the
Company or any of their Affiliates shall be disregarded, except that, for the
purposes of determining whether the Trustee
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shall be protected in conclusively relying on any such direction, waiver or
consent, only Notes that a Responsible Officer of the Trustee actually knows are
so owned shall be disregarded.
SECTION 2.10. Temporary Notes.
Until definitive Notes are ready for delivery, the Company may prepare
and the Trustee shall, upon receipt of an authentication order, authenticate and
deliver temporary Notes. Temporary Notes shall be substantially in the form of
definitive Notes but may have variations that the Company considers appropriate
for temporary Notes. Without unreasonable delay, the Company shall prepare and
the Trustee shall authenticate and deliver definitive Notes in exchange for
temporary Notes in equal principal amounts. Until such exchange, temporary Notes
shall be entitled to the same rights, benefits and privileges as definitive
Notes. Notwithstanding the foregoing, so long as the Notes are represented by a
Global Note, such Global Note may be in typewritten form.
SECTION 2.11. Cancellation.
The Company at any time may deliver Notes to the Trustee for
cancellation. The Registrar and the Paying Agent shall forward to the Trustee
any Notes surrendered to them for transfer, exchange or payment. The Trustee, or
at the direction of the Trustee, the Registrar or the Paying Agent (other than
the Company or a Subsidiary), and no one else, shall cancel and, at the written
direction of the Company, shall dispose of all Notes surrendered for transfer,
exchange, payment or cancellation in accordance with its customary procedures.
Subject to Section 2.07, the Company may not issue new Notes to replace Notes
that it has paid or delivered to the Trustee for cancellation (which shall not
prohibit the Company from issuing any Additional Notes or any Exchange Notes in
accordance with the terms of this Indenture). If the Company or any Guarantor
shall acquire any of the Notes, such acquisition shall not operate as a
redemption or satisfaction of the Indebtedness represented by such Notes unless
and until the same are surrendered to the Trustee for cancellation pursuant to
this Section 2.11.
SECTION 2.12. Defaulted Interest.
If the Company defaults in a payment of interest and Additional
Interest, if any, on the Notes, they shall pay the defaulted interest (including
Additional Interest), plus (to the extent lawful) any interest payable on the
defaulted interest (including Additional Interest), in any lawful manner, in
each case at the rate provided in the Notes and in Section 4.01 hereof. The
Company may pay the defaulted interest to the persons who are Holders on a
subsequent special record date, which date shall be the fifteenth day next
preceding the date fixed by the Company for the payment of defaulted interest or
the next succeeding Business Day if such date is not a Business Day. At least 15
days before any such subsequent special record date, the Company or, at the
Company's request, the Trustee, shall mail to each Holder, with a copy to the
Trustee, a notice that states the subsequent special record date, the payment
date and the amount of defaulted interest, and interest payable on such
defaulted interest, if any, to be paid.
SECTION 2.13. CUSIP and ISIN Numbers.
The Company in issuing the Notes may use "CUSIP" or "ISIN" numbers,
and if so, the Trustee shall use the "CUSIP" or "ISIN" numbers in notices of
redemption or exchange
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as a convenience to Holders; provided, however, that any such notice may state
that no representation is made as to the correctness or accuracy of the "CUSIP"
or "ISIN" numbers printed in the notice or on the Notes, and that reliance may
be placed only on the other identification numbers printed on the Notes, and any
such redemption shall not be affected by any defect in or omission of such
numbers. The Company shall promptly notify the Trustee in writing of any change
in the "CUSIP" or "ISIN" numbers.
SECTION 2.14. Deposit of Moneys.
Subject to Section 2 of the Notes, prior to 11:00 a.m. New York City
time on each Interest Payment Date, Maturity Date, Redemption Date, Change of
Control Payment Date and Asset Sale Payment Date, the Company shall have
deposited with the Paying Agent in immediately available funds money sufficient
to make cash payments, if any, due on such Interest Payment Date, Maturity Date,
Redemption Date, Change of Control Payment Date and Asset Sale Payment Date, as
the case may be, in a timely manner which permits the Paying Agent to remit
payment to the Holders on such Interest Payment Date, Maturity Date, Redemption
Date, Change of Control Payment Date and Asset Sale Payment Date, as the case
may be.
SECTION 2.15. Book-Entry Provisions for Global Notes.
(a) The Global Notes initially shall (i) be registered in the name of
the Depository or the nominee of the Depository, (ii) be delivered to the
Trustee as custodian for the Depository and (iii) bear legends as set forth in
Exhibit B, as applicable.
Members of, or participants in, the Depository ("PARTICIPANTS") shall
have no rights under this Indenture with respect to any Global Note held on
their behalf by the Depository, or the Trustee as its custodian, or under the
Global Note, and the Depository may be treated by the Company, the Trustee and
any agent of the Company or the Trustee as the absolute owner of the Global Note
for all purposes whatsoever. Notwithstanding the foregoing, nothing herein shall
prevent the Company, the Trustee or any agent of the Company or the Trustee from
giving effect to any written certification, proxy or other authorization
furnished by the Depository or impair, as between the Depository and
Participants, the operation of customary practices governing the exercise of the
rights of a Holder of any Note.
(b) Transfers of Global Notes shall be limited to transfers in whole,
but not in part, to the Depository, its successors and their respective
nominees. Interests of beneficial owners in the Global Notes may be transferred
or exchanged for Physical Notes in accordance with the rules and procedures of
the Depository and the provisions of Section 2.16. In addition, Physical Notes
shall be transferred to all beneficial owners in exchange for their beneficial
interests in Global Notes if (i) (a) the Depository notifies the Company that it
is unwilling or unable to act as Depository for any Global Note or (b) has
ceased to be a clearing agency registered under the Exchange Act, and the
Company so notifies the Trustee in writing and a successor Depository is not
appointed by the Company within 90 days of such notice or (ii) an Event of
Default has occurred and is continuing and the Registrar has received a request
from any owner of a beneficial interest in a Global Note to issue Physical
Notes. Upon any issuance of a Physical Note in accordance with this Section
2.15(b), the Trustee shall register such
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Physical Note in the name of, and shall cause the same to be delivered to, such
person or persons (or the nominee of any thereof). All such Physical Notes shall
bear the applicable legends, if any.
(c) In connection with any transfer or exchange of a portion of the
beneficial interest in a Global Note to beneficial owners pursuant to Section
2.15(b), the Registrar shall (if one or more Physical Notes are to be issued)
reflect on its books and records the date and a decrease in the principal amount
of such Global Note in an amount equal to the principal amount of the beneficial
interest in the Global Note to be transferred, and the Company shall execute,
and the Trustee shall authenticate and deliver, one or more Physical Notes of
authorized denominations in an aggregate principal amount equal to the principal
amount of the beneficial interest in the Global Note so transferred.
(d) In connection with the transfer of a Global Note as an entirety to
beneficial owners pursuant to Section 2.15(b), such Global Note shall be deemed
to be surrendered to the Trustee for cancellation, and (i) the Company shall
execute, (ii) the Guarantors shall execute notations of Note Guarantees on and
(iii) the Trustee shall upon written instructions from the Company authenticate
and deliver, to each beneficial owner identified by the Depository in exchange
for its beneficial interest in such Global Note, an equal aggregate principal
amount of Physical Notes of authorized denominations.
(e) Any Physical Note constituting a Restricted Security delivered in
exchange for an interest in a Global Note pursuant to paragraph (b) or (c) of
this Section 2.15 shall, except as otherwise provided by Section 2.16, bear the
Private Placement Legend.
(f) The Holder of any Global Note may grant proxies and otherwise
authorize any Person, including Participants and Persons that may hold interests
through Participants, to take any action which a Holder is entitled to take
under this Indenture or the Notes.
SECTION 2.16. Special Transfer and Exchange Provisions.
(a) Transfers to QIBs. The following provisions shall apply with
respect to the registration of any proposed transfer of a Restricted Security to
a QIB:
(i) the Registrar shall register the transfer of any Restricted
Security, whether or not such Note bears the Private Placement Legend, if
(x) the requested transfer is after the second anniversary of the Issue
Date; provided, however, that neither the Company nor any Affiliate of the
Company has held any beneficial interest in such Note, or portion thereof,
at any time on or prior to the second anniversary of the Issue Date or (y)
such transfer is being made by a proposed transferor who has checked the
box provided for on the applicable Global Note stating, or has otherwise
advised the Company and the Registrar in writing, that the sale has been
made in compliance with the provisions of Rule 144A to a transferee who has
signed the certification provided for on the applicable Global Note
stating, or has otherwise advised the Company and the Registrar in writing,
that it is purchasing the Note for its own account or an account with
respect to which it exercises sole investment discretion and that it and
any such account is a QIB within the meaning of Rule 144A, and is aware
that the sale to it is being made in reliance on Rule
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144A and acknowledges that it has received such information regarding the
Company as it has requested pursuant to Rule 144A or has determined not to
request such information and that it is aware that the transferor is
relying upon its foregoing representations in order to claim the exemption
from registration provided by Rule 144A;
(ii) if the proposed transferee is a Participant and the Notes to be
transferred consist of Physical Notes which after transfer are to be
evidenced by an interest in the 144A Global Note, upon receipt by the
Registrar of the Physical Note and written instructions given in accordance
with the Depository's and the Registrar's procedures, the Registrar shall
register the transfer and reflect on its book and records the date and an
increase in the principal amount of the 144A Global Note in an amount equal
to the principal amount of Physical Notes to be transferred, and the
Registrar shall cancel the Physical Notes so transferred; and
(iii) if the proposed transferor is a Participant seeking to transfer
an interest in the Regulation S Global Note, upon receipt by the Registrar
of written instructions given in accordance with the Depository's and the
Registrar's procedures, the Registrar shall register the transfer and
reflect on its books and records the date and (A) a decrease in the
principal amount of the the Regulation S Global Note in an amount equal to
the principal amount of the Notes to be transferred and (B) an increase in
the principal amount of the 144A Global Note in an amount equal to the
principal amount of the Notes to be transferred.
(b) [RESERVED]
(c) Transfers to Non-U.S. Persons. The following provisions shall
apply with respect to any transfer of a Restricted Security to a Non-U.S. Person
under Regulation S:
(i) the Registrar shall register any proposed transfer of a Restricted
Security to a Non-U.S. Person upon receipt of a certificate substantially
in the form of Exhibit C from the proposed transferor and such
certifications, legal opinions and other information as the Trustee or the
Company may reasonably request; and
(ii) (a) if the proposed transferor is a Participant holding a
beneficial interest in the Rule 144A Global Note or the Note to be
transferred consists of Physical Notes, upon receipt by the Registrar of
(x) the documents required by paragraph (i) and (y) instructions in
accordance with the Depository's and the Registrar's procedures, the
Registrar shall reflect on its books and records the date and a decrease in
the principal amount of the Rule 144A Global Note, in an amount equal to
the principal amount of the 144A Global Note to be transferred or cancel
the Physical Notes to be transferred, as the case may be, and (b) if the
proposed transferee is a Participant, upon receipt by the Registrar of
instructions given in accordance with the Depository's and the Registrar's
procedures, the Registrar shall reflect on its books and records the date
and an increase in the principal amount of the Regulation S Global Note in
an amount equal to the principal amount of the Rule 144A Global Note or the
Physical Notes, as the case may be, to be transferred.
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(d) Exchange Offer. Upon the occurrence of the Exchange Offer in
accordance with the Registration Rights Agreement, the Company shall issue and,
upon receipt of an Authentication Order in accordance with Section 2.02, the
Trustee shall authenticate one or more Global Notes and/or Physical Notes not
bearing the Private Placement Legend in an aggregate principal amount equal to
the principal amount of the beneficial interests in the Initial Global Notes or
Physical Notes, as the case may be, tendered for acceptance in accordance with
the Exchange Offer and accepted for exchange in the Exchange Offer.
(e) Restrictions on Transfer and Exchange of Global Notes.
Notwithstanding any other provisions of this Indenture, a Global Note may not be
transferred as a whole except 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 or by the Depository or any such nominee to a successor Depository or
a nominee of such successor Depository.
(f) Private Placement Legend. Upon the transfer, exchange or
replacement of Notes not bearing the Private Placement Legend unless otherwise
required by applicable law, the Registrar shall deliver Notes that do not bear
the Private Placement Legend. Upon the transfer, exchange or replacement of
Notes bearing the Private Placement Legend, the Registrar shall deliver only
Notes that bear the Private Placement Legend unless (i) there is delivered to
the Trustee an Opinion of Counsel reasonably satisfactory to the Company and the
Trustee 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 offered and sold (including pursuant
to the Exchange Offer) pursuant to an effective registration statement under the
Securities Act.
(g) General. By its acceptance of any Note bearing the Private
Placement Legend, each Holder of such a Note acknowledges the restrictions on
transfer of such Note set forth in this Indenture and in the Private Placement
Legend and agrees that it shall transfer such Note only as provided in this
Indenture.
The Registrar shall retain copies of all letters, notices and other
written communications received pursuant to Section 2.15 or Section 2.16. The
Company shall have the right to inspect and make copies of all such letters,
notices or other written communications at any reasonable time upon the giving
of reasonable written notice to the Registrar.
The Company and the Registrar are not required to transfer or exchange
any Note selected for redemption, except the unredeemed portion of any Note
being redeemed in part.
The Trustee shall have no obligation or duty to monitor, determine or
inquire as to compliance with any restrictions on transfer imposed under this
Indenture or under applicable law with respect to any transfer of any interest
in any Note (including any transfers between or among Depository, Participants
or beneficial owners of interests in any Global Note) other than to require
delivery of such certificates and other documentation or evidence as are
expressly required by, and to do so if and when expressly required by the terms
of, this Indenture, and to examine the same to determine substantial compliance
as to form with the express requirements hereof.
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The Trustee shall have no responsibility for the actions or omissions
of the Depository, or the accuracy of the books and records of the Depository.
(h) Cancellation and/or Adjustment of Global Note. At such time as all
beneficial interests in a particular Global Note have been exchanged for
Physical Notes or a particular Global Note has been redeemed, repurchased or
canceled in whole and not in part, each such Global Note shall be returned to or
retained and canceled by the Trustee in accordance with Section 2.11 hereof. At
any time prior to such cancellation, if any beneficial interest in a Global Note
is exchanged for or transferred to a Person who shall take delivery thereof in
the form of a beneficial interest in another Global Note or for Physical Notes,
the principal amount of Notes represented by such Global Note shall be reduced
accordingly and an endorsement shall be made on such Global Note by the Trustee
or by the Depository at the direction of the Trustee to reflect such reduction;
and if the beneficial interest is being exchanged for or transferred to a Person
who shall take delivery thereof in the form of a beneficial interest in another
Global Note, such other Global Note shall be increased accordingly and an
endorsement shall be made on such Global Note by the Trustee or by the
Depository at the direction of the Trustee to reflect such increase.
SECTION 2.17. Persons Deemed Owners.
Prior to due presentment of a Note for registration of transfer and
subject to Section 2.17, the Company, the Trustee, any Paying Agent, any
co-registrar and any Registrar may deem and treat the person in whose name any
Note shall be registered upon the register of Notes kept by the Registrar as the
absolute owner of such Note (whether or not such Note shall be overdue and
notwithstanding any notation of the ownership or other writing thereon made by
anyone other than the Company, any co-registrar or any Registrar) for the
purpose of receiving all payments with respect to such Note and for all other
purposes, and none of the Company, the Trustee, any Paying Agent, any
co-registrar or any Registrar shall be affected by any notice to the contrary.
ARTICLE THREE
REDEMPTION
SECTION 3.01. Notices to Trustee.
If the Company elect to redeem Notes pursuant to Section 5, Section 6
or Section 7 of the Notes, it shall notify the Trustee in writing of the
Redemption Date, the Redemption Price and the principal amount of Notes to be
redeemed. The Company shall give notice of redemption to the Trustee at least 30
days but not more than 60 days before the Redemption Date (except that a notice
issued in connection with a redemption referred to in Article Eight may be more
than 60 days before such Redemption Date), together with such documentation and
records as shall enable the Trustee to select the Notes to be redeemed.
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SECTION 3.02. Selection of Notes To Be Redeemed.
If less than all of the Notes are to be redeemed at any time, the
Trustee shall select Notes for redemption as follows:
(x) if the Notes are listed on any national securities exchange, in
compliance with the requirements of the principal national securities
exchange on which the Notes are listed; or
(y) if the Notes are not listed on any national securities exchange,
on a pro rata basis, by lot or by such method as the Trustee shall deem
fair and appropriate;
provided that, in the case of a partial redemption pursuant to Section 6 of the
Notes, the Trustee shall select the Notes or portions thereof for redemption on
a pro rata basis or on as nearly a pro rata basis as practicable (subject to the
procedures of the Depository), unless that method is otherwise prohibited.
No Notes of $1,000 or less shall be redeemed in part. The Trustee
shall promptly notify the Company in writing of the Notes selected for
redemption and, in the case of any Note selected for partial redemption, the
principal amount at maturity thereof to be redeemed or purchased.
SECTION 3.03. Notice of Redemption.
(a) At least 30 days but not more than 60 days before a Redemption
Date, the Company shall mail or cause to be mailed a notice of redemption by
first class mail, postage prepaid, to each Holder whose Notes are to be redeemed
at its registered address (except that a notice issued in connection with a
redemption referred to in Article Eight may be more than 60 days before such
Redemption Date). Each notice for redemption shall identify the Notes (including
the CUSIP or ISIN number) to be redeemed and shall state:
(1) the Redemption Date;
(2) the Redemption Price and the amount of accrued interest (including
Additional Interest), if any, to be paid;
(3) the name and address of the Paying Agent;
(4) that Notes called for redemption must be surrendered to the Paying
Agent to collect the Redemption Price plus accrued interest, if any;
(5) that, unless the Company defaults in making the redemption
payment, interest (including Additional Interest) on Notes called for
redemption ceases to accrue on and after the Redemption Date, and the only
remaining right of the Holders of such Notes is to receive payment of the
Redemption Price upon surrender to the Paying Agent of the Notes redeemed;
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(6) if any Note is being redeemed in part, the portion of the
principal amount at maturity of such Note to be redeemed and that, after
the Redemption Date, and upon surrender and cancellation of such Note, a
new Note or Notes in aggregate principal amount equal to the unredeemed
portion thereof shall be issued in the name of the Holder thereof;
(7) if fewer than all the Notes are to be redeemed, the identification
of the particular Notes (or portion thereof) to be redeemed, as well as the
aggregate principal amount of Notes to be redeemed and the aggregate
principal amount of Notes to be outstanding after such partial redemption;
and
(8) the Section of the Notes or this Indenture, as applicable,
pursuant to which the Notes are to be redeemed.
The notice, if mailed in a manner herein provided, shall be
conclusively presumed to have been given, whether or not the Holder receives
such notice. In any case, failure to give such notice by mail or any defect in
the notice to the Holder of any Note designated for redemption in whole or in
part shall not affect the validity of the proceedings for the redemption of any
other Note. Notices of optional redemption may not be conditional.
(b) At the Company's request (which may be given prior to the time at
which the Trustee shall have given such notice to Holders), the Trustee shall
give the notice of redemption to each Holder in the Company's names and at their
expense; provided, however, that the Company shall have delivered to the
Trustee, at least 45 days prior to the Redemption Date, an Officers' Certificate
requesting that the Trustee give such notice and setting forth the information
to be stated in such notice as provided in the preceding paragraph. The notice,
if mailed in the manner provided herein, shall be presumed to have been given,
whether or not the Holder receives such notice.
(c) If the Company has not delivered to the Trustee an Officers'
Certificate pursuant to a request made under Section 3.03(b), the Company shall
nonetheless deliver to the Trustee, at least 45 days prior to the Redemption
Date, written notice of such redemption.
SECTION 3.04. Effect of Notice of Redemption.
Once notice of redemption is mailed in accordance with Section 3.03,
Notes called for redemption become due and payable on the Redemption Date and at
the Redemption Price plus accrued interest and Additional Interest, if any. Upon
surrender to the Trustee or Paying Agent, such Notes called for redemption shall
be paid at the Redemption Price (which shall include accrued interest and
Additional Interest, if any, thereon to, but not including, the Redemption
Date), but installments of interest, the maturity of which is on or prior to the
Redemption Date, shall be payable to Holders of record at the close of business
on the relevant Record Dates. On and after the Redemption Date interest and
Additional Interest, if any, shall cease to accrue on Notes or portions thereof
called for redemption unless the Company shall have not complied with its
obligations pursuant to Section 3.05. Failure to give notice or any defect in
the notice to any Holder shall not affect the validity of the notice to any
other Holder.
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SECTION 3.05. Deposit of Redemption Price.
On or before 12:00 p.m. New York time on the Redemption Date, the
Company shall deposit with the Paying Agent U.S. Legal Tender sufficient to pay
the Redemption Price plus accrued and unpaid interest and Additional Interest,
if any, of all Notes (or portions thereof) to be redeemed on that date. The
Trustee or the Paying Agent shall promptly return to the Company any money
deposited with the Trustee or the Paying Agent by the Company in excess of the
amounts necessary to pay the Redemption Price (including accrued and unpaid
interest and Additional Interest, if any) for all Notes to be redeemed. In
addition, so long as no payment Default or Event of Default has occurred and is
continuing, all money, if any, earned on funds held by the Paying Agent shall be
remitted to the Company to the extent not applied to payments on the Notes.
SECTION 3.06. Notes Redeemed in Part.
If any Note is to be redeemed in part only, the notice of redemption
that relates to such Note shall state the portion of the principal amount
thereof to be redeemed. A new Note or Notes in principal amount equal to the
unredeemed portion of the original Note or Notes shall be issued in the name of
the Holder thereof upon surrender and cancellation of the original Note or
Notes; provided that each new Note will be in a principal amount of $1,000 or an
integral multiple of $1,000 in excess thereof.
SECTION 3.07. Optional Redemption.
The Notes shall be optionally redeemable as set forth in Section 5,
Section 6 and Section 7 of the Notes. Any such redemption shall be made in
accordance with the provisions of this Article Three.
ARTICLE FOUR
COVENANTS
SECTION 4.01. Payment of Notes.
The Company shall pay the principal of (and premium, if any) and
interest (including Additional Interest, if any) on the Notes in the manner
provided in the Notes, the Registration Rights Agreement and this Indenture. An
installment of principal of, or interest or Additional Interest, if any, on, the
Notes shall be considered paid on the date it is due if the Trustee or Paying
Agent, other than the Company or a Subsidiary of the Company, (or if the Company
or any of its Subsidiaries is the Paying Agent, the segregated account or
separate trust fund maintained by the Company or such Subsidiary pursuant to
Section 2.04) holds on that date as of 11:00 A.M. New York City time U.S. Legal
Tender designated for and sufficient to pay the installment. Interest on the
Notes shall be computed on the basis of a 360-day year comprised of twelve
30-day months.
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The Company shall pay interest on overdue principal (including,
without limitation, post-petition interest in a proceeding under any Bankruptcy
Law), and overdue interest and Additional Interest, if any, to the extent
lawful, at the same rate per annum borne by the Notes.
SECTION 4.02. Maintenance of Office or Agency.
The Company shall maintain the office required under Section 2.03
(which may be an office of the Trustee or an affiliate of the Trustee or
Registrar). The Company shall give prompt written notice to the Trustee of the
location, and any change in the location, of such office or agency. If at any
time the Company shall fail to maintain any such required office or agency or
shall fail to furnish the Trustee with the address thereof, such presentations,
surrenders, notices and demands may be made or served at the address of the
Trustee set forth in Section 11.02.
The Company may also from time to time designate one or more other
offices or agencies where the Notes may be presented for payment or surrendered
for any or all such purposes and may from time to time rescind such
designations. The Company shall give prompt written notice to the Trustee of any
such designation or rescission and of any change in the location of any such
other office or agency.
The Company hereby designates the Corporate Trust Office of the
Trustee as one such office or agency of the Company in accordance with Section
2.03 of this Indenture.
SECTION 4.03. Corporate Existence.
Except as otherwise permitted by Section 4.13 and Article Five, the
Company shall do or cause to be done all things reasonably necessary to preserve
and keep in full force and effect its corporate existence and the corporate,
partnership or other existence of each Restricted Subsidiary in accordance with
the respective organizational documents of each such Restricted Subsidiary and
the material rights (charter and statutory) and material franchises of the
Company and each Restricted Subsidiary; provided, however, that the Company
shall not be required to preserve any such right, franchise or corporate
existence with respect to itself or any Restricted Subsidiary, if the loss
thereof would not, individually or in the aggregate, have a material adverse
effect on the Company and the Restricted Subsidiaries, taken as a whole.
SECTION 4.04. Payment of Taxes.
The Company and the Guarantors shall, and shall cause each of the
Restricted Subsidiaries to, pay or discharge or cause to be paid or discharged,
before the same shall become delinquent, all material taxes, assessments and
governmental charges levied or imposed upon them or any of the Restricted
Subsidiaries or upon the income, profits or property of them or any of the
Restricted Subsidiaries; provided, however, that the Company and the Guarantors
shall not be required to pay or discharge or cause to be paid or discharged any
such tax, assessment, charge or claim whose amount the applicability or validity
is being contested in good faith by appropriate actions and for which
appropriate provision has been made, or any such tax, assessment, charge or
claim that would not reasonably be expected to have a material adverse effect on
the Company and the Guarantors taken as a whole.
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SECTION 4.05. [RESERVED].
SECTION 4.06. Compliance Certificate; Notice of Default.
(a) The Company shall deliver to the Trustee, within 165 days after
the close of each fiscal year of the Company, an Officers' Certificate, one of
the signatories of which shall be the chief executive officer, chief financial
officer or chief accounting officer of the Company, stating that a review of the
activities of the Company and the Guarantors has been made under the supervision
of the signing Officers with a view to determining whether the Company and the
Guarantors 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 such Officer's actual knowledge, the Company
and the Guarantors during such preceding fiscal year have kept, observed,
performed and fulfilled their respective obligations under this Indenture in all
material respects and as of the date of such certificate, there is no Default or
Event of Default that has occurred and is continuing or, if such signing
Officers do know of such Default or Event of Default, the certificate shall
specify such Default or Event of Default and what action, if any, the Company is
taking or proposes to take with respect thereto. The Officers' Certificate shall
also notify the Trustee should the Company elect to change the manner in which
it fixes the fiscal year end.
(b) The Company shall deliver to the Trustee as promptly as
practicable and in any event within 30 days after the Company (or any of its
Officers) becomes aware of the occurrence of any Default an Officers'
Certificate specifying the Default or Event of Default and what action, if any,
the Company is taking or proposes to take with respect thereto.
SECTION 4.07. Payments for Consent.
The Company shall not, and shall not permit any of its Restricted
Subsidiaries to, directly or indirectly, pay or cause to be paid any
consideration to or for the benefit of any Holder 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 to all Holders that
consent, waive or agree to amend in the time frame set forth in the solicitation
documents relating to such consent, waiver or agreement.
SECTION 4.08. Waiver of Stay, Extension or Usury Laws.
The Company and each Guarantor covenants (to the extent permitted by
applicable law) that it shall not at any time insist upon, plead, or in any
manner whatsoever claim or take the benefit or advantage of, any stay or
extension law or any usury law or other law which may affect the covenants or
the performance of this Indenture, and (to the extent permitted by applicable
law) each hereby expressly waives all benefit or advantage of any such law, and
covenants that it shall not hinder, delay or impede the execution of any power
herein granted to the Trustee, but shall suffer and permit the execution of
every such power as though no such law had been enacted.
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SECTION 4.09. Change of Control.
If a Change of Control occurs, the Company shall be required to make
an offer to repurchase all of the Notes as described below (the "CHANGE OF
CONTROL OFFER"). In the Change of Control Offer, the Company shall offer a
payment in cash ("CHANGE OF CONTROL PAYMENT") equal to 101% of the aggregate
principal amount of Notes repurchased plus accrued and unpaid interest and
Additional Interest, if any, on the Notes repurchased, to the date of purchase,
subject to the rights of Holders on the relevant Record Date to receive interest
due on the relevant Interest Payment Date. Within 30 days following any Change
of Control or at the Company's option, prior to such Change of Control but after
it is publicly announced, the Company shall mail or cause to be mailed a notice
to each Holder, with a copy to the Trustee, describing the transaction or
transactions that constitute the Change of Control and offering to repurchase
Notes on the Change of Control Payment Date specified in the notice (the "CHANGE
OF CONTROL PAYMENT DATE"), which date shall be no earlier than 30 days and no
later than 60 days from the date such notice is mailed, other than as may be
required by law, pursuant to the procedures described below. If the notice is
sent prior to the occurrence of the Change of Control, it may be conditioned
upon the consummation of the Change of Control. Such notice, whether sent before
or after the consummation of the Change of Control, shall state:
(1) that the Change of Control Offer is being made pursuant to this
Section 4.09 and to the extent lawful that all Notes tendered and not
withdrawn shall be accepted for payment;
(2) the purchase price (including the amount of accrued interest) and
the Change of Control Payment Date;
(3) that any Note not tendered shall continue to accrue interest in
accordance with the terms thereof;
(4) that, unless the Company defaults in making payment therefor, any
Note accepted for payment pursuant to the Change of Control Offer shall
cease to accrue interest on and after the Change of Control Payment Date;
(5) that Holders electing to have a Note purchased pursuant to a
Change of Control 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 Paying Agent at
the address specified in the notice prior to the close of business on the
third Business Day prior to the Change of Control Payment Date;
(6) that Holders shall be entitled to withdraw their election if the
Paying Agent receives, not later than two Business Days prior to the Change
of Control Payment Date, a facsimile transmission or letter setting forth
the name of the Holder, the principal amount of the Notes the Holder
delivered for purchase, certificate numbers, if applicable, and a statement
that such Holder is withdrawing his election to have such Note purchased;
and
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(7) that Holders whose Notes are purchased only in part shall be
issued new Notes in a principal amount equal to the unpurchased portion of
the Notes surrendered (equal to $1,000 or an integral multiple of $1,000 in
excess thereof).
On or before the Change of Control Payment Date, the Company shall, to
the extent lawful:
(1) accept for payment all Notes or portions of Notes in minimum
amounts equal to $1,000 or an integral multiple of $1,000 in excess
thereof, properly tendered pursuant to the Change of Control Offer;
(2) deposit with the Paying Agent U.S. Legal Tender equal to the
Change of Control Payment in respect of all Notes or portions of Notes
properly tendered; and
(3) deliver or cause to be delivered to the Trustee the Notes properly
accepted together with an Officers' Certificate stating the aggregate
principal amount of Notes or portions of Notes being purchased by the
Company.
The Paying Agent shall promptly mail to each Holder whose Notes have
been properly tendered the Change of Control Payment for such Notes, and the
Trustee shall promptly authenticate pursuant to an Authentication 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 new Note shall be in a principal amount of $1,000 or an
integral multiple of $1,000 in excess thereof. So long as no payment Default or
Event of Default has occurred and is continuing and to the extent not applied to
make payments on the Notes, the Paying Agent shall return to the Company any
cash that remains unclaimed, together with interest, if any, thereon, held by
them for the payment of the Redemption Price. However, if the Change of Control
Payment 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 Change of Control Offer.
The Company shall inform the Holders of the results of the Change of
Control Offer on or as soon as practicable after the Change of Control Payment
Date. The Company shall be required to make a Change of Control Offer regardless
of whether the provisions of Section 4.13 also apply in connection with the
applicable Change of Control.
The Company shall not be required to make a Change of Control Offer
upon a Change of Control if (1) a third party makes the Change of Control Offer
in the manner, at the times and otherwise in compliance with the requirements
set forth in this Indenture applicable to a Change of Control Offer made by the
Company and purchases all Notes properly tendered and not withdrawn under the
Change of Control Offer or (2) notice of redemption has been given in respect of
all of the Notes then outstanding pursuant to Section 5 or Section 6 of the
Notes, unless and until there is a default in payment of the applicable
Redemption Price.
The Company shall comply with the requirements of any securities laws
and regulations thereunder to the extent those laws and regulations are
applicable in connection with the repurchase of the Notes as a result of a
Change of Control. To the extent that the provisions of
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any securities laws or regulations conflict with the provisions of this Section
4.09, the Company shall comply with the applicable securities laws and
regulations and shall not be deemed to have breached its obligations under this
Section 4.09 by virtue of such compliance.
SECTION 4.10. Incurrence of Indebtedness and Issuance of Disqualified Stock and
Preferred Stock.
(a) The Company shall not, and shall not permit any of its Restricted
Subsidiaries to, directly or indirectly, create, incur, issue, assume, guarantee
or otherwise become directly or indirectly liable, contingently or otherwise,
with respect to (collectively, "INCUR") any Indebtedness (including Acquired
Debt), and the Company shall not issue any shares of Disqualified Stock and the
Company shall not permit any of its Restricted Subsidiaries to issue any shares
of Disqualified Stock or preferred stock; provided, however, that the Company
may incur Indebtedness (including Acquired Debt) or issue Disqualified Stock,
and any Guarantor may incur Indebtedness (including Acquired Debt), issue shares
of Disqualified Stock or issue shares of preferred stock, if the Fixed Charge
Coverage Ratio for the Company's most recently ended four full fiscal quarters
for which internal financial statements are available immediately preceding the
date on which such additional Indebtedness is incurred or such Disqualified
Stock or preferred stock is issued, as the case may be, would have been at least
2.0 to 1.0, determined on a pro forma basis (including a pro forma application
of the net proceeds therefrom), as if the additional Indebtedness had been
incurred or the Disqualified Stock or the preferred stock had been issued, as
the case may be, at the beginning of such four-quarter period.
(b) Section 4.10(a) shall not prohibit the incurrence of any of the
following items of Indebtedness (collectively, "PERMITTED DEBT"):
(1) the incurrence by the Company or any Guarantor of Indebtedness and
letters of credit under one or more Credit Facilities in an aggregate
amount at any time outstanding under this clause (1) not to exceed $475.0
million, less the amount of Non-Recourse Debt outstanding under clause (16)
below;
(2) the incurrence by the Company and its Restricted Subsidiaries of
the Existing Indebtedness;
(3) the incurrence of the Notes on the Issue Date, the Note Guarantees
and the Exchange Securities to be issued pursuant to the Registration
Rights Agreement;
(4) the incurrence by the Company or any of its Restricted
Subsidiaries of Indebtedness represented by Capital Lease Obligations,
mortgage financings or purchase money obligations, in each case, incurred
for the purpose of financing all or any part of the purchase price or cost
of design, construction, installation or improvement of property, plant or
equipment used in the business of the Company or any of its Restricted
Subsidiaries and Permitted Refinancing Indebtedness in respect thereof, in
an aggregate amount not to exceed at any time outstanding the greater of
(A) $20.0 million and (B) 3.0% of Total Tangible Assets;
(5) Indebtedness of the Company or any of its Restricted Subsidiaries
incurred to finance the replacement (through construction, acquisition,
lease or otherwise) of one
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or more Vessels and any assets that shall become Related Assets, upon a
total loss, destruction, condemnation, confiscation, requisition, seizure,
forfeiture or other taking of title to or use of such Vessel (collectively,
a "TOTAL LOSS") in an aggregate amount no greater than the ready for sea
cost (as determined in good faith by the Company) for such replacement
Vessel, in each case, less all compensation, damages and other payments
(including insurance proceeds other than in respect of business
interruption insurance) actually received by the Company or any of its
Restricted Subsidiaries from any Person in connection with the Total Loss
in excess of amounts actually used to repay Indebtedness secured by the
Vessel subject to the Total Loss;
(6) Indebtedness of the Company or any Restricted Subsidiary incurred
in relation to: (i) maintenance, repairs, refurbishments and replacements
required to maintain the classification of any of the Vessels owned,
leased, time chartered or bareboat chartered to or by the Company or any
Restricted Subsidiary; (ii) drydocking of any of the Vessels owned or
leased by the Company or any Restricted Subsidiary for maintenance, repair,
refurbishment or replacement purposes in the ordinary course of business;
and (iii) any expenditures which will or may be reasonably expected to be
recoverable from insurance on such Vessels;
(7) the incurrence by the Company or any of its Restricted
Subsidiaries of Permitted Refinancing Indebtedness in respect of
Indebtedness (other than intercompany Indebtedness) permitted to be
incurred under Section 4.10(a) or Sections 4.10(b)(2), (b)(3), (b)(5),
(b)(6), (b)(7) or (b)(14);
(8) the incurrence of Indebtedness by the Company owed to a Restricted
Subsidiary and Indebtedness by any Restricted Subsidiary owed to the
Company or any other Restricted Subsidiary; provided, however, that upon
any such Restricted Subsidiary ceasing to be a Restricted Subsidiary or
such Indebtedness being owed to any Person other than the Company or a
Restricted Subsidiary, the Company or such Restricted Subsidiary, as
applicable, shall be deemed to have incurred Indebtedness not permitted by
this clause (8);
(9) the issuance by any of the Company's Restricted Subsidiaries to
the Company or to any of its Restricted Subsidiaries of shares of
Disqualified Stock or preferred stock; provided, however, that:
(A) any subsequent issuance or transfer of Equity Interests that
results in any such Disqualified Stock or preferred stock being held
by a Person other than the Company or a Restricted Subsidiary of the
Company; and
(B) any sale or other transfer of any such Disqualified Stock or
preferred stock to a Person that is neither the Company nor a
Restricted Subsidiary of the Company;
shall be deemed, in each case, to constitute an issuance of such
Disqualified Stock or preferred stock by such Restricted Subsidiary that is
not permitted by this clause (9);
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(10) the incurrence by the Company or any of its Restricted
Subsidiaries of Permitted Hedging Obligations;
(11) the guarantee by the Company or any Guarantor of Indebtedness of
the Company or a Restricted Subsidiary of the Company that was permitted to
be incurred by another provision of this Section 4.10; provided that if the
Indebtedness being guaranteed is contractually subordinated to the Notes or
a Guarantee, then the guarantee shall be contractually subordinated to the
same extent as the Indebtedness guaranteed;
(12) the incurrence by the Company or any of its Restricted
Subsidiaries of Indebtedness in respect of workers' compensation claims,
unemployment insurance, health, disability and other employee benefits or
property, casualty or liability insurance, self-insurance obligations,
bankers' acceptances, or performance, completion, bid, appeal and surety
bonds, in each case, in the ordinary course of business;
(13) the incurrence by the Company or any of its Restricted
Subsidiaries of Indebtedness arising from the honoring by a bank or other
financial institution of a check, draft or similar instrument inadvertently
drawn against insufficient funds, so long as such Indebtedness is covered
within five Business Days;
(14) Indebtedness, Disqualified Stock or preferred stock of (x) the
Company or a Restricted Subsidiary incurred or issued to finance an
acquisition or (y) a Person acquired by the Company or a Restricted
Subsidiary or merged, consolidated, amalgamated or liquidated with or into
a Restricted Subsidiary or the Company; provided, however, that after
giving effect to such incurrence or issuance (and the related acquisition,
merger, consolidation, amalgamation or liquidation), the Fixed Charge
Coverage Ratio for the Company's most recently ended four full fiscal
quarters for which internal financial statements are available immediately
preceding the date on which such additional Indebtedness is incurred or
such Disqualified Stock or preferred stock is issued, as the case may be,
would have been at least 1.75 to 1.0;
(15) the incurrence by the Company or any of its Restricted
Subsidiaries of Indebtedness consisting of guarantees, earn-outs,
indemnities or obligations in respect of purchase price adjustments in
connection with the disposition or acquisition of assets, including,
without limitation, shares of Capital Stock;
(16) Non-Recourse Debt incurred by a Securitization Subsidiary in a
Qualified Securitization Transaction;
(17) the incurrence by the Company or any of its Restricted
Subsidiaries of Indebtedness constituting reimbursement obligations with
respect to letters of credit so long each such obligation is satisfied
within 30 days of the incurrence thereof; and
(18) the incurrence by the Company or any of its Restricted
Subsidiaries of additional Indebtedness, Disqualified Stock or preferred
stock in an aggregate amount at any time outstanding, including all
Permitted Refinancing Indebtedness incurred pursuant to this clause (18),
not to exceed $25.0 million.
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(c) For purposes of determining compliance with this Section 4.10, in
the event that an item of proposed Indebtedness, Disqualified Stock or preferred
stock meets the criteria of more than one of the categories of Permitted Debt
described in clauses (1) through (18) of Section 4.10(b), or is entitled to be
incurred pursuant to Section 4.10(a), the Company, in its sole discretion, may
classify such item of Indebtedness, Disqualified Stock and preferred stock (or
any portion thereof) on the date of its incurrence, or later reclassify, all or
a portion of such item of Indebtedness, Disqualified Stock or preferred stock,
in any manner that complies with this Section 4.10. Indebtedness under Credit
Facilities outstanding on the Issue Date shall be deemed to have been incurred
on such date in reliance on the exception provided by Section 4.10(b)(1), but
thereafter may be reclassified in any manner that complies with this Section
4.10.
(d) The accrual of interest, the accrual of dividends, the accretion
or amortization of original issue discount, the payment of interest on any
Indebtedness in the form of additional Indebtedness with the same terms, and the
payment of dividends on Disqualified Stock or preferred stock in the form of
additional shares of the same class of Disqualified Stock or preferred stock, as
the case may be, shall not be deemed to be an incurrence of Indebtedness or an
issuance of Disqualified Stock or preferred stock for purposes of this Section
4.10; provided, in each such case, that the amount thereof is included in Fixed
Charges of the Company as accrued.
(e) The amount of any Indebtedness outstanding as of any date shall
be:
(1) the accreted value of such Indebtedness, in the case of any
Indebtedness issued with original issue discount;
(2) the principal amount of the Indebtedness, in the case of any other
Indebtedness;
(3) in respect of Indebtedness of another Person secured by a Lien on
the assets of the specified Person, the lesser of:
(A) the Fair Market Value of such assets at the date of
determination; and
(B) the amount of the Indebtedness of the other Person that is
secured by such assets; and
(4) in respect of the Indebtedness incurred by a Securitization
Subsidiary, the amount of Obligations outstanding under the legal documents
entered into as part of a Qualified Securitization Transaction on any date
of determination characterized as principal or that would be characterized
as principal if such securitization were structured as a secured lending
transaction rather than as a purchase.
(f) For purposes of determining compliance with this Section 4.10, (i)
Acquired Debt shall be deemed to have been incurred by the Company or its
Restricted Subsidiaries, as the case may be, at the time an acquired Person
becomes such a Restricted Subsidiary of the Company (or is merged into the
Company or such a Restricted Subsidiary) or at the time of the acquisition of
assets, as the case may be, (ii) the maximum amount of
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Indebtedness, Disqualified Stock or preferred stock that the Company and its
Restricted Subsidiaries may incur pursuant to this Section 4.10 shall not be
deemed to be exceeded, with respect to any outstanding Indebtedness,
Disqualified Stock or preferred stock due solely to the result of fluctuations
in the exchange rates of currencies and (iii) the outstanding principal amount
of any particular Indebtedness shall be counted only once and any obligations
arising under any guarantee, Lien, letter of credit or similar instrument
supporting such Indebtedness permitted to be incurred under this covenant shall
not be double counted.
(g) For purposes of determining compliance of any non-U.S.
dollar-denominated Indebtedness with this Section 4.10, the amount outstanding
under any U.S. dollar equivalent principal amount of Indebtedness denominated in
a foreign currency shall at all times be calculated based on the relevant
currency exchange rate in effect on the date such Indebtedness was incurred, in
the case of term Indebtedness, or first committed, in the case of revolving
credit Indebtedness (in each case determined, if available, by the rate of
exchange quoted by Reuters at 10:00 a.m. (New York time) on the date of
determination for spot purchases of the non-U.S. dollar currency with U.S.
dollars and otherwise in accordance with customary practice); provided, however,
that if such Indebtedness is incurred to refinance other Indebtedness
denominated in the same or different currency, and such refinancing would cause
the applicable U.S. dollar-denominated restriction to be exceeded if calculated
at the relevant currency exchange rate in effect on the date of such
refinancing, such U.S. dollar-denominated restriction shall be deemed not to
have been exceeded so long as the principal amount of such refinancing
Indebtedness does not exceed the principal amount of such Indebtedness being
refinanced.
SECTION 4.11. Limitations on Restricted Payments.
(a) The Company shall not, and shall not permit any of its Restricted
Subsidiaries to, directly or indirectly:
(i) pay any dividend or make any other payment or distribution on
account of the Company's or any of its Restricted Subsidiaries' Equity
Interests (including, without limitation, any payment in connection with
any merger, amalgamation or consolidation involving the Company or any of
its Restricted Subsidiaries) or to the holders of the Company's or any of
its Restricted Subsidiaries' Equity Interests in their capacity as such
(other than (A) dividends or distributions payable in Qualified Equity
Interests or (B) dividends or other payments or distributions payable to
the Company or a Restricted Subsidiary of the Company);
(ii) purchase, redeem or otherwise acquire or retire for value
(including, without limitation, in connection with any merger or
consolidation) any Equity Interests of any direct or indirect parent of the
Company;
(iii) make any voluntary or optional principal payment on or with
respect to, or purchase, redeem, defease or otherwise acquire or retire for
value, any Indebtedness of the Company or any Guarantor that is
contractually subordinated to the Notes or any Guarantee (excluding any
Indebtedness owed to and held by the Company or any of its Restricted
Subsidiaries), other than (x) payments of principal at the Stated Maturity
thereof and (y) payments, purchases, redemptions, defeasances or other
acquisitions or
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retirements for value in anticipation of satisfying a scheduled maturity,
sinking fund or amortization or other installment obligation or mandatory
redemption, in each case, due within one year of the Stated Maturity
thereof; or
(iv) make any Restricted Investment
(all such payments and other actions set forth in clauses (i) through (iv) above
being collectively referred to as "RESTRICTED PAYMENTS"), unless, at the time of
and after giving effect to such Restricted Payment:
(1) no Default or Event of Default has occurred and is continuing or
would occur as a consequence of such Restricted Payment;
(2) the Company would, at the time of such Restricted Payment and
after giving pro forma effect thereto as if such Restricted Payment had
been made at the beginning of the applicable four-quarter period, have been
permitted to incur at least $1.00 of additional Indebtedness pursuant to
the Fixed Charge Coverage Ratio test set forth in Section 4.10(a); and
(3) such Restricted Payment, together with the aggregate amount of all
other Restricted Payments made by the Company and its Restricted
Subsidiaries since the date of this Indenture (excluding Restricted
Payments permitted by clauses (2), (3), (4), (5), (6), (7), (8), (9), (8),
(9), (10) and (14) of Section 4.11(b)), is not greater than the sum,
without duplication, of:
(A) 50% of the Consolidated Net Income of the Company for the
period (taken as one accounting period) from October 1, 2006 to the
end of the Company's most recently ended fiscal quarter for which
internal financial statements are available at the time of such
Restricted Payment (or, if such Consolidated Net Income for such
period is a deficit, less 100% of such deficit); plus
(B) (i) 100% of the aggregate net cash proceeds and (ii) 100% of
the Fair Market Value of the property and assets other than cash, in
each case, received by the Company after the date of this Indenture as
a contribution to its equity capital or from the issue or sale (other
than to a Restricted Subsidiary of the Company) of Qualified Equity
Interests, including upon the exercise of options or warrants, or from
the issue or sale (other than to a Restricted Subsidiary of the
Company) of convertible or exchangeable Disqualified Stock or
convertible or exchangeable debt securities of the Company that have
been converted into or exchanged for Qualified Equity Interests,
together with the aggregate cash and Cash Equivalents received by the
Company or any of its Restricted Subsidiaries at the time of such
conversion or exchange; plus
(C) to the extent that any Restricted Investment that was made
after the date of this Indenture is sold or otherwise liquidated or
repaid for cash or Cash Equivalents, the return of capital in cash or
Cash Equivalents with respect to such Restricted Investment (less the
cost of disposition, if any); plus
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(D) to the extent that any Unrestricted Subsidiary of the Company
is redesignated as a Restricted Subsidiary after the date of this
Indenture or is merged into the Company or a Restricted Subsidiary or
transfers all or substantially all its assets of the Company or a
Restricted Subsidiary, the Fair Market Value of the Investment of the
Company and its Restricted Subsidiaries in such Subsidiary (or the
assets so transferred, if applicable) as of the date of such
redesignation (other than to the extent of such Investment in such
Unrestricted Subsidiary that was made as a Permitted Investment); plus
(E) any amount which previously treated as a Restricted Payment
on account of any guarantee entered into by the Company or a
Restricted Subsidiary upon the unconditional release of such
guarantee.
(b) The preceding provisions shall not prohibit:
(1) the payment of any dividend or other distribution within 60 days
after the date of declaration of the dividend or other distribution, if at
the date of declaration such payment would have complied with the
provisions of this Indenture;
(2) the making of any Restricted Payment in exchange for, or out of
the net proceeds of the substantially concurrent sale or issuance (other
than to a Restricted Subsidiary of the Company), including upon exercise of
an option or warrant, of, Qualified Equity Interests or from the
substantially concurrent contribution of equity capital with respect to
Qualified Equity Interests to the Company; provided that the amount of any
such net proceeds that are utilized for any such Restricted Payment shall
be excluded from clause (3) of Section 4.11(a);
(3) the payment, defeasance, redemption, repurchase or other
acquisition or retirement for value of Indebtedness of the Company or any
of its Restricted Subsidiaries that is contractually subordinated to the
Notes or to any Guarantee with the net proceeds from a substantially
concurrent incurrence of Permitted Refinancing Indebtedness or in exchange
for Qualified Equity Interests;
(4) the payment of any dividend or other distribution (or, in the case
of any partnership, limited liability company or similar entity, any
similar distribution) by a Restricted Subsidiary of the Company to the
holders of its Equity Interests on a pro rata basis taking into account the
relative preferences, if any, of the various classes of Equity Interests in
such Restricted Subsidiary;
(5) the repurchase, redemption or other acquisition or retirement for
value of any Qualified Equity Interests of the Company or any of its
Restricted Subsidiaries held by any current or former officer, director,
consultant or employee of the Company or any of its Restricted Subsidiaries
(or Heirs or other permitted transferees thereof); provided that the
aggregate price paid for all such repurchased, redeemed, acquired or
retired Equity Interests may not exceed $3.0 million in any calendar year;
provided, further, that such amount may be increased by an amount not to
exceed:
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(A) the cash proceeds from the sale of Qualified Equity Interests
of the Company to directors, officers, employees or consultants of the
Company or any of its Restricted Subsidiaries that occurs after the
date of this Indenture (provided that the amount of such cash proceeds
utilized for any such repurchase, redemption, acquisition or other
retirement shall not increase the amount available for Restricted
Payments under clause (3) of the immediately preceding paragraph);
plus
(B) the cash proceeds of key-man life insurance policies received
by the Company or any Restricted Subsidiary after the date of this
Indenture;
provided that to the extent that any portion of the $3.0 million annual
limit on such redemptions or repurchases is not utilized in any year, such
unused portion may be carried forward and be utilized in one or more
subsequent years;
(6) cancellation of Indebtedness owing to the Company from members of
management of the Company in connection with a repurchase of Qualified
Equity Interests of the Company pursuant to any management equity plan or
stock option plan or any other management or employee benefit plan or other
agreement or arrangement approved by the Board of Directors to the extent
such Indebtedness was issued to such member of management as consideration
for the purchase of the Qualified Equity Interests so repurchased;
(7) so long as no Default or Event of Default has occurred and is
continuing or would result thereby, any dividend or distribution consisting
of Equity Interests of an Unrestricted Subsidiary or the proceeds of the
sale of Equity Interests of an Unrestricted Subsidiary;
(8) the repurchase of Equity Interests deemed to occur upon the
exercise of options, warrants or other convertible securities to the extent
such Equity Interests represent a portion of the exercise price of those
options, warrants or other convertible securities and cash payments in lieu
of the issuance of fractional shares in connection with the exercise of
options, warrants or other convertible securities;
(9) so long as no Default or Event of Default has occurred and is
continuing or would result thereby, the declaration and payment of cash
dividends on Designated Preferred Stock in accordance with the certificate
of designations therefor; provided that at the time of issuance of such
Designated Preferred Stock, the Company would, after giving pro forma
effect thereto as if such issuance had been made at the beginning of the
applicable four-quarter period, have been permitted to incur at least $1.00
of additional Indebtedness pursuant to the Fixed Charge Coverage Ratio test
set forth in Section 4.10(a);
(10) so long as no Default or Event of Default has occurred and is
continuing or would result thereby, the declaration and payment of cash
dividends to
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holders of any class or series of Disqualified Stock of the Company issued
in accordance with Section 4.10;
(11) payments made to purchase, redeem, defease or otherwise acquire
or retire for value any Indebtedness of the Company or any of its
Restricted Subsidiaries that is contractually subordinated to the Notes or
to any Guarantee (i) following the occurrence of a Change of Control, at a
purchase price not greater than 101% of the outstanding principal amount
(or accreted value, in the case of any debt issued at a discount from its
principal amount at maturity) thereof, plus accrued and unpaid interest, if
any, after the Company and its Restricted Subsidiaries have satisfied their
obligations with respect to a Change of Control Offer set forth under
Section 4.09 or (ii) with the Excess Proceeds of one or more Asset Sales,
at a purchase price not greater than 100% of the principal amount (or
accreted value, in the case of any debt issued at a discount from its
principal amount at maturity) thereof, plus accrued and unpaid interest, if
any, after the Company and its Restricted Subsidiaries have satisfied their
obligations with respect to such Excess Proceeds pursuant to Section 4.13
to the extent that such subordinated Indebtedness is required to be
repurchased or redeemed pursuant to the terms thereof as a result of such
Change of Control or Asset Sale;
(12) payments pursuant to clause (6) Section 4.14(b);
(13) so long as no payment Default or Event of Default has occurred
and is continuing or would result thereby, the payment of cash dividends on
the Company's shares of common stock in the aggregate amount per fiscal
quarter not to exceed $0.0666 per share for each share of common stock of
the Company outstanding as of the one record date for dividends payable in
respect of such fiscal quarter (as such amount shall be appropriately
adjusted for any stock splits, stock dividends, reverse stock splits, stock
consolidations and similar transactions); and
(14) other Restricted Payments in an aggregate amount not to exceed
$20.0 million since the date of this Indenture.
The amount of all Restricted Payments (other than cash and Cash
Equivalents) 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.
(c) For purposes of determining compliance with this covenant, in the
event that a Restricted Payment permitted pursuant to this Section 4.11 or a
Permitted Investment meets the criteria of more than one of the categories of
Restricted Payment described in clauses (1) through (14) above or one or more
clauses of the definition of Permitted Investment, the Company shall be
permitted to classify such Restricted Payment or Permitted Investment (or any
portion thereof) on the date it is made, or later reclassify, all or a portion
of such Restricted Payment or Permitted Investment, in any manner that complies
with this covenant, and such Restricted Payment or Permitted Investment shall be
treated as having been made pursuant to only one of such clauses of this Section
4.11 or of the definition of Permitted Investment.
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SECTION 4.12. Limitations on Liens.
(a) The Company shall not, and shall not permit any Restricted
Subsidiary to, directly or indirectly, create, incur, assume or suffer to exist
any Lien that secures obligations under any Indebtedness or any related
guarantee, on any asset of the Company or any Restricted Subsidiary, whether
owned on the Issue Date or thereafter acquired, except Permitted Liens, unless
contemporaneously therewith:
(1) in the case of any Lien securing an obligation that ranks pari
passu with the Notes or a Guarantee, effective provision is made to secure
the Notes or such Guarantee, as the case may be, at least equally and
ratably with or prior to such obligation with a Lien on the same
collateral; and
(2) in the case of any Lien securing an obligation that is
subordinated in right of payment to the Notes or a Guarantee, effective
provision is made to secure the Notes or such Guarantee, as the case may
be, with a Lien on the same collateral that is prior to the Lien securing
such subordinated obligation, in each case, for so long as such obligation
is secured by such Lien (such Lien, the "PRIMARY LIEN").
Notwithstanding the foregoing, the Company shall not, and shall not
permit any Restricted Subsidiary to, directly or indirectly, create, incur,
assume or suffer to exist any Lien under any of clauses (1), (3), (7), (16),
(24) or (25) of the definition of "Permitted Liens" on any asset of the Company
or any Restricted Subsidiary that secures obligations under any Indebtedness or
any related guarantee, if such Lien is junior or subordinated in priority to any
other Lien on such asset that secures obligations under any other Indebtedness
or any related guarantee of the Company or any Restricted Subsidiary pursuant to
an agreement which the Company or a Restricted Subsidiary is a party or the
terms of which have been accepted, acknowledged or consented to by the Company
or any Restricted Subsidiary in writing.
(b) Any Lien created for the benefit of the Holders pursuant to
Section 4.12(a) shall automatically and unconditionally be released and
discharged upon the release and discharge of the Primary Lien, without any
further action on the part of any Person.
SECTION 4.13. Limitations on Asset Sales.
(a) The Company shall not, and shall not permit any of its Restricted
Subsidiaries to, consummate an Asset Sale unless:
(1) the Company or any of its Restricted Subsidiaries receives
consideration at the time of the Asset Sale at least equal to the fair
market value of the assets or Equity Interests issued or sold or otherwise
disposed of; and
(2) at least 75% of the consideration received in the Asset Sale by
the Company or such Restricted Subsidiary is in the form of cash or Cash
Equivalents.
(b) For purposes of Section 4.13(a), each of the following shall be
deemed to be cash:
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(1) any Indebtedness or other liabilities, as shown on the Company's
most recent consolidated balance sheet or the notes thereto, of the Company
or any of its Restricted Subsidiaries (other than liabilities that are
expressly subordinated to the Notes or any Guarantee) that are assumed,
repaid or retired by the transferee (or a third party on behalf of the
transferee) of any such assets;
(2) any securities, Notes or other obligations received by the Company
or any such Restricted Subsidiary from such transferee or any other Person
on account of such Asset Sale that are, within 180 days of the Asset Sale,
converted, sold or exchanged by the Company or such Restricted Subsidiary
into cash or Cash Equivalents, to the extent of the cash or Cash
Equivalents received in that conversion, sale or exchange;
(3) the Fair Market Value of (i) any assets (other than securities and
other than assets that are classified as current assets under GAAP)
received by the Company or any Restricted Subsidiary to be used by it in a
Permitted Business (including, without limitation, Vessels and Related
Assets), (ii) Capital Stock in a Person that is a Restricted Subsidiary or
in a Person engaged in a Permitted Business that shall become a Restricted
Subsidiary immediately upon the acquisition of such Person by the Company
or (iii) a combination of (i) and (ii); and
(4) any Designated Non-cash Consideration received by the Company or
any Restricted Subsidiary in such Asset Sale having an aggregate Fair
Market Value, taken together with all other Designated Non-cash
Consideration received pursuant to this paragraph (2) that is at that time
outstanding, not to exceed the greater of (x) $25.0 million and (y) 3.0% of
Total Tangible Assets of the Company at the time of the receipt of such
Designated Non-cash Consideration, with the Fair Market Value of each item
of Designated Non-cash Consideration being measured at the time received
and without giving effect to subsequent changes in value.
(c) Within 365 days after the receipt of any Net Proceeds from an
Asset Sale, the Company or any of its Restricted Subsidiaries shall apply such
Net Proceeds to:
(1) repay or prepay any and all obligations under the Credit
Facilities or any other Secured Indebtedness and, if the Indebtedness
repaid is revolving credit Indebtedness, to correspondingly reduce
commitments with respect thereto; or
(2) acquire all or substantially all of the assets of, or any Capital
Stock of, a Person engaged in a Permitted Business; provided that in the
case of acquisition of Capital Stock of any Person, such Person is or
becomes a Restricted Subsidiary of the Company;
(3) make a capital expenditure;
(4) acquire other assets that are not classified as current assets
under GAAP and that are used or useful in a Permitted Business (including,
without limitation, Vessels and Related Assets);
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(5) make an Asset Sale Offer (and purchase or redeem 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) in accordance with
the provisions of this Section 4.13 and the other provisions of this
Indenture; and/or
(6) any combination of the transactions permitted by the foregoing
clauses (1) through (5).
(d) A (A) binding contract to apply Net Proceeds in accordance with
clauses (2) through (4) above shall toll the 365-day period in respect of such
Net Proceeds or (B) determination by the Company to potentially apply all or a
portion of such Net Proceeds towards the exercise an outstanding Vessel Purchase
Option Contract shall toll the 365-day period in respect of such Net Proceeds
for a period not to exceed 180 days from the expiration of the aforementioned
365-day period, provided that such binding contract and such determination, in
each case, shall be treated as a permitted application of Net Proceeds from the
date of such binding contract until and only until the earlier of (x) the date
on which such acquisition or expenditure is consummated and (y) (i) in the case
of any Vessel Construction Contract or any Exercised Vessel Purchase Option
Contract (including any outstanding Vessel Purchase Option Contract exercised
during the 180 day period referenced in clause (B) above), the date of
expiration or termination of such Vessel Construction Contract or Exercised
Vessel Purchase Option Contract and (ii) otherwise, the 180th day following the
expiration of the aforementioned 365-day period (clause (i) or clause (ii) as
applicable, the "REINVESTMENT TERMINATION DATE"). If such acquisition or
expenditure is not consummated on or before the Reinvestment Termination Date
and the Company (or the applicable Restricted Subsidiary, as the case may be)
shall not have applied such Net Proceeds pursuant to clauses (1) through (6)
above on or before the Reinvestment Termination Date, such binding contract
shall be deemed not to have been a permitted application of the Net Proceeds.
Pending the final application of any Net Proceeds, the Company or any
of its Restricted Subsidiaries may temporarily reduce outstanding
Indebtedness or otherwise invest the Net Proceeds in any manner that is not
prohibited by this Indenture.
(e) Any Net Proceeds from Asset Sales that are not applied or invested
as provided in Section 4.13(c) shall constitute "EXCESS PROCEEDS." When the
aggregate amount of Excess Proceeds exceeds $15.0 million, the Company shall
make an offer to purchase (an "ASSET SALE OFFER") to all Holders 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 required to
be purchased out of the Excess Proceeds (the "PAYMENT AMOUNT"). The offer price
for the Notes in any Asset Sale Offer shall be equal to 100% of principal amount
of the Notes plus accrued and unpaid interest and Additional Interest thereon,
if any, to the date of purchase (the "OFFERED PRICE"), and shall be payable in
cash, and the offer or redemption price for such pari passu Indebtedness shall
be as set forth in the related documentation governing such Indebtedness. If any
Excess Proceeds remain after consummation of an Asset Sale Offer, such Excess
Proceeds may be used for any purpose not otherwise prohibited by this Indenture.
If the aggregate principal amount of Notes
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and other pari passu indebtedness tendered into such Asset Sale Offer exceeds
the amount of Excess Proceeds, the Trustee shall select the Notes and the
Company or the agent for such other pari passu Indebtedness shall select such
other pari passu Indebtedness to be purchased on a pro rata basis (with
adjustments so that no Notes or other pari passu Indebtedness are purchased,
redeemed or repaid in unauthorized denominations). Upon completion of each Asset
Sale Offer, the amount of Excess Proceeds shall be reset at zero.
(f) Upon the commencement of a Asset Sale Offer, the Company shall
send, or cause to be sent, by first class mail, a notice to the Trustee and to
each Holder at is registered address. The notice shall contain all instructions
and materials necessary to enable such Holder to tender Notes pursuant to the
Asset Sale Offer. Any Asset Sale Offer shall be made to all Holders. The notice,
which shall govern the terms of the Asset Sale Offer, shall state:
(1) that the Asset Sale Offer is being made pursuant to this Section
and that, to the extent lawful, all Notes tendered will be accepted for
payment;
(2) the Payment Amount, the Offered Price, and the date on which Notes
tendered and accepted for payment shall be purchased, which date shall be
at least 30 days and not later than 60 days from the date such notices is
mailed (the "ASSET SALE PAYMENT DATE");
(3) that any Notes not tendered or accepted for payment shall continue
to accrue interest in accordance with the terms thereof;
(4) that, unless the Company defaults in making such payment, any
Notes accepted for payment pursuant to the Asset Sale Offer shall cease to
accrue interest on and after the Asset Sale Payment Date;
(5) that Holders electing to have any Notes purchased pursuant to any
Asset Sale Offer shall be required to surrender the Notes, 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 Company, a
depository, if appointed by the Company, or the Paying Agent at the address
specified in the notice at least three days before the Asset Sale Payment
Date;
(6) that Holders shall be entitled to withdraw their election if the
Company, the Depository or the Paying Agent, as the case may be, receives,
not later than two Business Days prior to the Asset Sale Payment Date, a
notice 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;
(7) that if the aggregate principal amount of Notes surrendered by
Holders exceeds the Payment Amount, the Company shall select the Notes to
be purchased on a pro rata basis (with such adjustments as may be deemed
appropriate by the Company so that only Notes in denominations of $1,000 or
integral multiples of $1,000 in excess thereof, shall be purchased); and
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(8) 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).
(g) On the Asset Sale Payment Date, the Company shall, to the extent
lawful: (1) accept for payment all Notes or portions thereof properly tendered
pursuant to the Asset Sale Offer, subject to pro ration if the aggregate Notes
tendered exceed the Payment Amount allocable to the Notes; (2) deposit with the
Paying Agent U.S. Legal Tender equal to the lesser of the Payment Amount
allocable to the Notes and the amount sufficient to pay the Offered Price in
respect of all Notes or portions thereof so tendered; and (3) 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 repurchased by the Company. The Company shall inform the Holders of the
results of the Asset Sale Offer on or as soon as practicable after the Asset
Sale Payment Date.
(h) The Paying Agent shall promptly mail to each Holder whose Notes
have been properly tendered the Offered Price for such Notes, and the Trustee
shall promptly authenticate pursuant to an Authentication Order and mail (or
cause to be transferred by book-entry) to each Holder a new Note equal in
principal amount to any unrepurchased portion of the Notes surrendered, if any;
provided that each such new Note shall be in principal amount of $1,000 or an
integral multiple of $1,000 in excess thereof. So long as no payment Default or
Event of Default has occurred and is continuing, and to the extent not applied
to make payments on the Notes, the Paying Agent shall return to the Company any
cash that remains unclaimed, together with interest, if any, thereon, held by
them for the payment of the Purchase Price.
However, if the Asset Sale Payment Date is on or after a 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.
(i) The Company shall comply with the requirements of any securities
laws and regulations thereunder to the extent those laws and regulations are
applicable in connection with each repurchase of Notes pursuant to an Asset Sale
Offer. To the extent that the provisions of any securities laws or regulations
conflict with this Section 4.13, the Company shall comply with the applicable
securities laws and regulations and shall not be deemed to have breached its
obligations under this Section 4.13 by virtue of such compliance.
SECTION 4.14. Limitations on Transactions with Affiliates.
(a) The Company shall not, and shall not permit any of its Restricted
Subsidiaries to, enter into or make or amend any transaction, contract,
agreement, understanding, loan, advance or guarantee with, or for the benefit
of, any Affiliate of Company (each, an "AFFILIATE TRANSACTION"), unless:
(1) the Affiliate Transaction is on terms that are not materially less
favorable to the Company or the relevant Restricted Subsidiary than those
that would have been
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obtained in a comparable 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 $10.0 million, a resolution of the Board of Directors of the
Company set forth in an Officers' Certificate certifying that such
Affiliate Transaction complies with this Section 4.14 and that such
Affiliate Transaction has been approved by a majority of the
disinterested members of the Board of Directors; and
(b) with respect to any Affiliate Transaction or series of
related Affiliate Transactions (i) involving aggregate consideration
in excess of $25.0 million or (ii) as to which there are no
disinterested members of the Board of Directors, an opinion as to the
fairness to the Company or such Restricted Subsidiary of such
Affiliate Transaction from a financial point of view issued by an
accounting, appraisal or investment banking firm of international
standing qualified to perform the task for which such firm has been
engaged (as determined by the Company in good faith).
(b) The following items shall not be deemed to be Affiliate
Transactions and, therefore, shall not be subject to Section 4.14(a):
(1) director, officer, employee and consultant compensation, benefit,
reimbursement and indemnification agreements, plans and arrangements (and
payment awards in connection therewith) entered into by the Company or any
of its Restricted Subsidiaries in the ordinary course of business;
(2) transactions between or among the Company and/or its Restricted
Subsidiaries;
(3) transactions with a Person (other than an Unrestricted Subsidiary
of the Company) that is an Affiliate of the Company solely because the
Company owns, directly or through a Restricted Subsidiary, an Equity
Interest in, or controls, such Person;
(4) any issuance of Qualified Equity Interests of the Company (other
than Designated Preferred Stock) to an Affiliate and the granting or
performance of registration rights in respect of any Qualified Equity
Interests of the Company (other than Designated Preferred Stock), which
rights have been approved by the Board of Directors of the Company;
(5) Restricted Payments that do not violate Section 4.11 and
Investments consisting of Permitted Investments;
(6) the performance of obligations of the Company or any Restricted
Subsidiary under the terms of any agreement that is in effect as of or on
the Issue Date and disclosed in the Offering Memorandum or any amendment,
modification,
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supplement, extension or renewal, from time to time, thereto or any
transaction contemplated thereby (including pursuant to any amendment,
modification, supplement, extension or renewal, from time to time, thereto)
in any replacement agreement thereto, so long as any such amendment,
modification, supplement, extension or renewal, or replacement agreement,
is not materially more disadvantageous to the Holders taken as a whole than
the original agreement as in effect on the Issue Date; and
(7) transactions effected as part of a Qualified Securitization
Transaction.
SECTION 4.15. Dividend and Other Payment Restrictions Affecting Subsidiaries.
The Company shall not, and shall not permit any of its Restricted
Subsidiaries to, directly or indirectly, create or permit to exist or become
effective any consensual encumbrance or restriction on the ability of any of its
Restricted Subsidiaries to:
(1) pay dividends or make any other distributions on its Capital Stock
to the Company or any of its Restricted Subsidiaries, or pay any
Indebtedness owed to the Company or any of its Restricted Subsidiaries;
(2) make loans or advances to the Company or any of its Restricted
Subsidiaries; or
(3) transfer any of its properties or assets to the Company or any of
its Restricted Subsidiaries.
However, the preceding restrictions shall not apply to encumbrances or
restrictions existing under or by reason of:
(1) agreements, including, without limitation, those governing
Existing Indebtedness and Credit Facilities, as in effect on the date of
this Indenture and any amendments, modifications, restatements, renewals,
increases, supplements, refundings, replacements or refinancings of those
agreements; provided that the amendments, modifications, restatements,
renewals, increases, supplements, refundings, replacements or refinancings
are not materially more restrictive, taken as a whole, with respect to such
dividend and other payment restrictions than those contained in those
agreements on the date of this Indenture;
(2) this Indenture, the Notes and the Note Guarantees;
(3) applicable law, rules, regulations or order or governmental
license, permit or concession;
(4) 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 or Equity Interests were incurred or issued in connection with
such acquisition to provide funds to consummate such
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acquisition), which encumbrance or restriction is not applicable to any
Person, or the properties or assets of any Person, other than the Person,
or the property or assets of the Person, so acquired; provided that, in the
case of Indebtedness, such Indebtedness was permitted by the terms of this
Indenture to be incurred;
(5) customary provisions restricting assignments, subletting or other
similar transfers in contracts, licenses and other agreements (including,
without limitation, leases and agreements relating to intellectual
property) entered into in the ordinary course of business;
(6) purchase money obligations and Capital Lease Obligations that
impose restrictions on the property purchased or leased of the nature
described in clause (3) of the preceding paragraph;
(7) any agreement for the sale or other disposition of a Restricted
Subsidiary or an asset that restricts distributions by that Restricted
Subsidiary or transfers of such asset pending the sale or other
disposition;
(8) Permitted Refinancing Indebtedness; provided that the restrictions
contained in the agreements governing such Permitted Refinancing
Indebtedness are not materially more restrictive, taken as a whole, than
those contained in the agreements governing the Indebtedness being
refinanced;
(9) Liens and agreements related thereto that were permitted to be
incurred under the provisions of Section 4.12 that limit the right of the
debtor to dispose of the assets or property subject to such Liens;
(10) provisions limiting the disposition or distribution of assets or
property (including Capital Stock of any Person in which the Company has an
Investment) in joint venture agreements, stockholder agreements,
partnership agreements, limited liability company operating agreements,
asset sale agreements, sale-leaseback agreements, stock sale agreements and
other similar agreements, which limitation is applicable in all material
respects only to the assets or property that are the subject of such
agreements;
(11) restrictions on cash or other deposits or net worth imposed under
contracts entered into in the ordinary course of business;
(12) customary provisions restricting the disposition of real property
interests set forth in any easements or other similar agreements or
arrangements of the Company or any Restricted Subsidiary;
(13) provisions restricting the transfer of any Capital Stock of an
Unrestricted Subsidiary;
(14) Indebtedness of a Restricted Subsidiary incurred subsequent to
the date of this Indenture pursuant to the provisions of Section 4.10 (i)
in respect of the subordination provisions, if any, of such Indebtedness,
(ii) if the encumbrances and restrictions contained in any such
Indebtedness taken as a whole are not materially
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less favorable to the Holders than the encumbrances and restrictions
contained in this Indenture or that may be contained in any Credit
Agreement in accordance with this covenant or (iii) if such encumbrance or
restriction is customary in comparable financings (as determined in good
faith by the Company) and either (x) the Company determines in good faith
that such encumbrance or restriction shall not adversely affect in any
material respect the Company's ability to make principal or interest
payments on the Notes as and when due or (y) such encumbrance or
restriction applies only in the event of and during the continuance of a
default under such Indebtedness; and
(15) Non-Recourse Debt or other encumbrances, restrictions or
contractual requirements of a Securitization Subsidiary in connection with
a Qualified Securitization Transaction; provided that such restrictions
apply only to such Securitization Subsidiary or the Securitization Assets
that are subject to the Qualified Securitization Transaction.
SECTION 4.16. Subsidiary Guarantees.
(a) If the Company or any of its Restricted Subsidiaries acquires or
creates a Wholly Owned Restricted Subsidiary (or redesignates an Unrestricted
Subsidiary as a Restricted Subsidiary and such Restricted Subsidiary is a Wholly
Owned Restricted Subsidiary) and such Wholly Owned Restricted Subsidiary shall
at any time have total assets with a book value in excess of $1.0 million, then
such Wholly Owned Restricted Subsidiary (unless such Subsidiary is a
Securitization Subsidiary) must become a Guarantor and shall, within 15 Business
Days of the date on which it was so acquired, created or redesignated or so
capitalized:
(1) execute and deliver to the Trustee a supplemental indenture
substantially in the form of Exhibit D, pursuant to which such Wholly Owned
Restricted Subsidiary shall unconditionally guarantee all of the Company's
obligations under the Notes and this Indenture on the terms set forth in
this Indenture; and
(2) deliver to the Trustee an Opinion of Counsel that such
supplemental indenture has been duly authorized, executed and delivered by
such Wholly Owned Restricted Subsidiary and constitutes a valid and legally
binding and enforceable obligation of such Wholly Owned Restricted
Subsidiary, subject to customary exceptions.
Thereafter, such Wholly Owned Restricted Subsidiary shall be a
Guarantor for all purposes of this Indenture.
(b) The Note Guarantee of a Guarantor shall automatically and
unconditionally (without any further action on the part of any Person) be
released:
(1) in connection with any sale or other disposition of all or
substantially all of the assets of that Guarantor (including by way of
merger, consolidation or amalgamation) to a Person that is not (either
before or after giving effect to such transaction) the Company or a
Restricted Subsidiary of the Company, if the sale or other disposition does
not violate Section 4.13 or Section 4.14;
(2) in connection with any sale or other disposition of a majority of
the Capital Stock of that Guarantor to a Person that is not (either before
or after giving effect
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to such transaction) the Company or a Subsidiary of the Company, if (x)
such Guarantor would no longer constitute a "Subsidiary " under this
Indenture and (y) the sale or other disposition does not violate Section
4.13;
(3) if the Company designates any Restricted Subsidiary that is a
Guarantor to be an Unrestricted Subsidiary in accordance with Section 4.18;
(4) upon liquidation or dissolution of such Guarantor;
(5) in the case of a Guarantor that is not a Wholly-Owned Restricted
Subsidiary that has voluntarily issued a Guarantee of the Notes, upon
notice to the Trustee by the Company of the designation of such Guarantor
as non-Guarantor Restricted Subsidiary if (x) the Company would be
permitted to make an Investment in such Restricted Subsidiary at the time
of such release equal to the Fair Market Value of the Investment of the
Company and its other Restricted Subsidiaries in such Guarantor as either a
Permitted Investment or pursuant to Section 4.11 and (y) all transactions
entered into by such Restricted Subsidiary while a Guarantor would be
permitted under this Indenture at the time its Guarantee is released; and
(6) upon Legal Defeasance or Covenant defeasance or satisfaction and
discharge of the Notes as provided below under Section 8.01, Section 8.03
and Section 8.04.
SECTION 4.17. Reports to Holders.
(a) Whether or not the Company is then subject to Section 13(a) or
15(d) of the Exchange Act, the Company shall furnish to the Trustee and the
Holders, so long as the Notes are outstanding:
(1) within 75 days after the end of each of the first three fiscal
quarters in each fiscal year, quarterly reports on Form 6-K (or any
successor form) containing unaudited financial statements (including a
balance sheet and statement of income, changes in stockholders' equity and
cash flow) and a management's discussion and analysis of financial
condition and results of operations (or equivalent disclosure) for and as
of the end of such fiscal quarter (with comparable financial statements for
the corresponding fiscal quarter of the immediately preceding fiscal year);
(2) within 150 days after the end of each fiscal year, an annual
report on Form 20-F (or any successor form) containing the information
required to be contained therein for such fiscal year; and
(3) at or prior to such times at would be required to be filed or
furnished to the SEC if the Company was then a "foreign private issuer"
subject to Section 13(a) or 15(d) of the Exchange Act, all such other
reports and information that the Company would have been required pursuant
thereto;
provided, however, that to the extent that the Company ceases to qualify as a
"foreign private issuer" within the meaning of the Exchange Act, whether or not
the Company is then subject to
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Section 13(a) or 15(d) of the Exchange Act, the Company shall furnish to the
Trustee and the Holders, so long as any Notes are outstanding, within 30 days of
the respective dates on which the Company would be required to file such
documents with the SEC if it was required to file such documents under the
Exchange Act, all reports and other information that would be required to be
filed with (or furnished to) the SEC pursuant to Section 13(a) or 15(d) of the
Exchange Act.
(b) In addition, whether or not required by the rules and regulations
of the SEC, the Company shall electronically file or furnish, as the case may
be, a copy of all such information and reports referred to in clauses (1)
through (3) of Section 4.17(a) with the SEC for public availability within the
time periods specified therein (unless the SEC shall not accept such a filing)
and make such information available to securities analysts and prospective
investors upon request. In addition, the Company has agreed that, for so long as
any Notes remain outstanding, it shall furnish to the Holders and to securities
analysts and prospective investors, upon their request, the information required
to be delivered pursuant to Rule 144A(d)(4) under the Securities Act.
(c) Notwithstanding the foregoing provisions of this Section 4.17, the
Company shall be deemed to have furnished such reports referred to in the first
paragraph of this Section 4.17 to the Trustee and the Holders if the Company has
filed such reports with the SEC via the βββββ filing system and such reports are
publicly available.
SECTION 4.18. Limitations on Designation of Restricted and Unrestricted
Subsidiaries.
The Board of Directors of the Company may designate any Subsidiary to
be an Unrestricted Subsidiary if that designation would not cause a Default or
cause a Default to be continuing after such designation. If a Restricted
Subsidiary is designated as an Unrestricted Subsidiary, the aggregate Fair
Market Value of all outstanding Investments owned by the Company and its
Restricted Subsidiaries in the Subsidiary designated as an Unrestricted
Subsidiary shall be deemed to be an Investment made as of the time of the
designation and shall reduce the amount available for Restricted Payments under
Section 4.11 or under one or more clauses of the definition of Permitted
Investments, as determined by the Company. That designation shall only be
permitted if the Investment would be permitted at that time and if the
Restricted Subsidiary otherwise meets the definition of an Unrestricted
Subsidiary. The Board of Directors of the Company may redesignate any
Unrestricted Subsidiary to be a Restricted Subsidiary if that redesignation
would not cause a Default or cause a Default to be continuing after such
redesignation.
SECTION 4.19. Additional Interest Notice.
In the event that the Company is required to pay Additional Interest
to Holders pursuant to the Registration Rights Agreement, the Company shall
provide written notice ("ADDITIONAL INTEREST NOTICE") to the Trustee of its
obligation to pay Additional Interest no later than ten days prior to the
proposed payment date for the Additional Interest, and the Additional Interest
Notice shall set forth the amount of Additional Interest to be paid by the
Company on such payment date. The Trustee shall not at any time be under any
duty or responsibility to any Holder to determine the Additional Interest, or
make any determination with respect to the
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nature, extent or calculation of the amount of Additional Interest owed or with
respect to the method employed in such calculation of the Additional Interest.
SECTION 4.20. Payment of Additional Amounts.
(a) All payments made by the Company under or with respect to the
Notes or by a Guarantor under or with respect to its Note Guarantee shall be
made free and clear of and without withholding or deduction for or on account of
any present or future Taxes imposed or levied by or on behalf of any Taxing
Authority in any jurisdiction in which the Company or any Guarantor is organized
or is otherwise resident for tax purposes or any jurisdiction from or through
which payment is made (each, a "RELEVANT TAXING JURISDICTION"), unless the
Company or such Guarantor is required to withhold or deduct Taxes by law or by
the interpretation or administration thereof.
(b) If the Company or any Guarantor is so required to withhold or
deduct any amount for or on account of Taxes imposed by a Relevant Taxing
Jurisdiction from any payment made under or with respect to the Notes or the
Note Guarantee of such Guarantor, the Company or such Guarantor, as applicable,
shall pay such additional amounts ("ADDITIONAL AMOUNTS") as may be necessary so
that the net amount received by each Holder (including Additional Amounts) after
such withholding or deduction shall equal the amount the Holder would have
received if such Taxes had not been withheld or deducted; provided, however,
that no Additional Amounts shall payable with respect to any Tax that would not
have been imposed, payable or due:
(1) but for the existence of any present or former connection between
the Holder (or the beneficial owner of, or person ultimately entitled to
obtain an interest in, such Notes) and the Relevant Taxing Jurisdiction
(including being a citizen or resident or national of, or carrying on a
business or maintaining a permanent establishment in, or being physically
present in, the Relevant Taxing Jurisdiction) other than the mere holding
of the Notes or enforcement of rights thereunder or the receipt of payments
in respect thereof;
(2) but for the failure to satisfy any certification, identification
or other reporting requirements whether imposed by statute, treaty,
regulation or administrative practice; provided, however, that the Company
has delivered a request to the Holder to comply with such requirements at
least 30 days prior to the date by which such compliance is required;
(3) if the presentation of Notes (where presentation is required) for
payment has occurred within 30 days after the date such payment was due and
payable or was duly provided for, whichever is later;
(4) subject to Section 4.20(e), with respect to any estate,
inheritance, gift, sales, excise, transfer or personal property tax,
assessment or charge; or
(5) as a result of a combination of the foregoing clauses (1) through
(4).
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In addition, Additional Amounts shall not be payable if the beneficial
owner of, or person ultimately entitled to obtain an interest in, such
Notes had been the Holder and such beneficial owner would not be entitled
to the payment of Additional Amounts by reason of clause (1), (2), (3), (4)
or (5) above. In addition, Additional Amounts shall not be payable with
respect to any Tax which is payable otherwise than by withholding from
payments of, or in respect of principal of, or any interest or Additional
Interest, if any, on, the Notes.
(c) Whenever in this Indenture or the Notes there is mentioned, in any
context, the payment of amounts based upon the principal amount of the Notes or
of principal, premium, if any, interest or Additional Interest, if any, or of
any other amount payable under or with respect to any Note, such mention shall
be deemed to include mention of the payment of Additional Amounts to the extent
that, in such context, Additional Amounts are, were or would be payable in
respect thereof.
(d) Upon request, the Company shall provide the Trustee with
documentation satisfactory to the Trustee evidencing the payment of Additional
Amounts.
(e) The Company and the Guarantors shall pay any present or future
stamp, court or documentary taxes, or any other excise or property taxes,
charges or similar levies that arise in any jurisdiction from the execution,
delivery or registration of the Notes, this Indenture or any other document or
instrument referred to therein, or the receipt of any payments with respect to
the Notes, excluding any such taxes, charges or similar levies imposed by any
jurisdiction in which the Company or any Guarantor or any successor Person is
organized or is otherwise resident for tax purposes, the United States of
America or any jurisdiction in which a Paying Agent is located, but not
excluding those resulting from, or required to be paid in connection with, the
enforcement of the Notes or other such document or instrument following the
occurrence of an Event of Default with respect to the Notes.
(f) Notwithstanding anything to the contrary contained in this
Indenture, the Company and the Guarantors may, to the extent required to do so
by law, deduct or withhold income or other similar taxes imposed by the United
States of America from principal or interest payments under this Indenture;
provided that the foregoing shall not limit the obligation of the Company and
the Guarantors to pay Additional Amounts as set forth in this Section 4.20.
ARTICLE FIVE
SUCCESSOR CORPORATION
SECTION 5.01. Mergers, Consolidations, Etc.
(a) The Company may not, directly or indirectly: (1) consolidate,
amalgamate or merge with or into another Person (whether or not the Company is
the surviving Person); or (2) sell, assign, transfer, convey or otherwise
dispose of all or substantially all of the properties or assets of the Company
and its Restricted Subsidiaries taken as a whole, in one or more related
transactions, to another Person, unless:
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(1) either: (a) the Company is the surviving Person; or (b) the Person
formed by or surviving any such consolidation, amalgamation or merger (if
other than the Company) or to which such sale, assignment, transfer,
conveyance or other disposition has been made (x) is a corporation, limited
liability company, trust or limited partnership organized or existing under
the laws an Eligible Jurisdiction and (y) assumes all the obligations of
the Company under the Notes, this Indenture and the Registration Rights
Agreement pursuant to agreements reasonably satisfactory to the Trustee;
(2) immediately after giving effect to such transaction, no Default or
Event of Default exists; and
(3) either (a) the Company or the Person formed by or surviving any
such consolidation, amalgamation or merger (if other than the Company), or
to which such sale, assignment, transfer, conveyance or other disposition
has been made, shall, on the date of such transaction after giving pro
forma effect thereto and to any related financing transactions as if the
same had occurred at the beginning of the applicable four-quarter period,
be permitted to incur at least $1.00 of additional Indebtedness pursuant to
the Fixed Charge Coverage Ratio test set forth in Section 4.10(a) or (b)
the Fixed Charge Coverage Ratio for the Company or such surviving Person
determined in accordance with Section 4.10(a) shall be greater than the
Fixed Charge Coverage Ratio test for the Company and its Restricted
Subsidiaries immediately prior to such transaction.
In addition, the Company may not, directly or indirectly, lease all or
substantially all of its properties or assets, in one or more related
transactions, to any other Person; provided that the foregoing shall not
prohibit the chartering out of Vessels in the ordinary course of business.
For purposes of this Section 5.01, the transfer (by lease, assignment,
sale or otherwise, in a single transaction or series of transactions) of all or
substantially all of the properties or assets of one or more Restricted
Subsidiaries, the Equity Interests of which constitute all or substantially all
of the properties and assets of the Company, shall be deemed to be the transfer
of all or substantially all of the properties and assets of the Company.
(b) The Company shall not permit any Guarantor to, directly or
indirectly, consolidate, amalgamate or merge with or into another Person
(whether or not such Guarantor is the surviving Person) unless:
(1) subject to the Note Guarantee release provisions of Section 4.16,
such Guarantor is the surviving Person or the Person formed by or surviving
any such consolidation, amalgamation or merger (if other than the Company
or a Guarantor) expressly assumes all the obligations of such Guarantor
under the Note Guarantee of such Guarantor, this Indenture and the
Registration Rights Agreement pursuant to agreements reasonably
satisfactory to the Trustee; and
(2) immediately after such transaction, no Default or Event of Default
exists.
(c) This Section 5.01 shall not apply to a merger of the Company, a
Guarantor or a Wholly Owned Restricted Subsidiary of such Person with an
Affiliate solely for the purpose,
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and with the effect, of reorganizing the Company, a Guarantor or a Wholly Owned
Restricted Subsidiary, as the case may be, in an Eligible Jurisdiction. In
addition, nothing in this Section 5.01 shall prohibit any Restricted Subsidiary
from consolidating or amalgamating with, merging with or into or conveying,
transferring or leasing, in one transaction or a series of transactions, all or
substantially all of its assets to the Company or another Restricted Subsidiary
or reconstituting itself in another jurisdiction for the purpose of reflagging a
vessel.
ARTICLE SIX
DEFAULT AND REMEDIES
SECTION 6.01. Events of Default.
Each of the following is an "EVENT OF DEFAULT":
(1) default by the Company or any Guarantor for 30 consecutive days in
the payment when due and payable of interest on, or Additional Interest, if
any, with respect to, the Notes;
(2) default by the Company or any Guarantor in the payment when due
and payable of the principal of or premium, if any, on the Notes;
(3) failure by the Company or any of its Restricted Subsidiaries to
comply with the provisions described under Section 5.01 after receipt by
the Company or such Subsidiary, as applicable, of a written notice
specifying the default (and demanding that such default be remedied and
stating that such notice is a "Notice of Default") from the Trustee or the
Holders of at least 25% of the outstanding principal amount of the Notes;
(4) failure by the Company or any of its Restricted Subsidiaries for
60 consecutive days after notice has been given to the Company by the
Trustee or to the Company and the Trustee by the Holders of at least 25% in
aggregate principal amount of the Notes then outstanding specifying the
default and demanding compliance with any of the other covenants in this
Indenture;
(5) default under any mortgage, indenture or instrument under which
there may be issued or by which there may be secured or evidenced any
Indebtedness for money borrowed by the Company or any Significant
Subsidiary or any group of Restricted Subsidiaries that, taken together,
would constitute a Significant Subsidiary, whether such Indebtedness now
exists or is created after the date of this Indenture, if that default:
(a) is caused by a failure to pay the principal amount of any
such Indebtedness at its stated final maturity after giving effect to
any applicable grace periods (a "PAYMENT DEFAULT"); or
(b) results in the acceleration of such Indebtedness prior to its
stated final maturity;
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and, in each case of clauses (a) and (b) above, 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 $20.0 million or more;
(6) failure by the Company or any Significant Subsidiary or any group
of Restricted Subsidiaries that, taken together, would constitute a
Significant Subsidiary to pay final judgments aggregating in excess of
$20.0 million in excess of amounts that are covered by insurance or which
have been bonded, which judgments are not paid, discharged or stayed for a
period of 60 days after such judgment or judgments become final and
non-appealable;
(7) except as permitted by this Indenture including upon the permitted
release of the Note Guarantee, any Guarantee of a Significant Subsidiary or
any group of Restricted Subsidiaries that, taken together, would constitute
a Significant Subsidiary shall be held in any judicial proceeding to be
unenforceable or invalid or shall cease for any reason to be in full force
and effect or any Guarantor or any Person acting on behalf of any Guarantor
shall deny or disaffirm in writing its obligations under its Guarantee;
(8) either the Company or any of its Restricted Subsidiaries that is a
Significant Subsidiary or any group of Restricted Subsidiaries that, taken
together, would constitute a Significant Subsidiary as debtor in an
involuntary case, pursuant to or within the meaning of any Bankruptcy Law:
(a) commences a voluntary case or proceeding,
(b) consents to the entry of an order for relief or decree
against it in an involuntary case or proceeding,
(c) consents to the appointment of a Custodian of it or for all
or substantially all of its assets, or
(d) makes a general assignment for the benefit of its creditors;
(e) admits in writing its inability to pay its debts generally as
they become due; or
(f) files a petition or answer or consent seeking reorganization
or relief; and
(9) a court of competent jurisdiction enters an order or decree under
any Bankruptcy Law that:
(a) is for relief against the Company or any of its Restricted
Subsidiaries that is a Significant Subsidiary or any group of
Restricted Subsidiaries that, taken together, would constitute a
Significant Subsidiary as debtor in an involuntary case or proceeding;
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(b) appoints a Custodian of the Company or any of its Restricted
Subsidiaries that is a Significant Subsidiary or any group of
Restricted Subsidiaries that, taken together, would constitute a
Significant Subsidiary, or a Custodian for all or substantially all of
the assets of the Company or any of its Restricted Subsidiaries that
is a Significant Subsidiary or any group of Restricted Subsidiaries
that, taken together, would constitute a Significant Subsidiary or
adjudges any such entity or group a bankrupt or insolvent or approves
as properly filed a petition seeking reorganization, arrangement,
adjustment or composition of or in respect of such entity or group; or
(c) orders the winding up or liquidation of the Company or any of
its Restricted Subsidiaries that is a Significant Subsidiary or any
group of Restricted Subsidiaries that, taken together, would
constitute a Significant Subsidiary;
and the order or decree remains unstayed and in effect for 60 consecutive
days.
SECTION 6.02. Acceleration.
In the case of an Event of Default specified in clause (8) or (9) of
Section 6.01, with respect to the Company, all outstanding Notes shall become
due and payable immediately without further action or notice. If any other Event
of Default occurs and is continuing, the Trustee, by written notice to the
Company, or the Holders of at least 25% in principal amount of the then
outstanding Notes, by written notice to the Trustee and the Company, may declare
all the Notes to be due and payable. Any such notice from the Trustee or Holders
shall specify the applicable Event(s) of Default and state that such notice is a
"NOTICE OF ACCELERATION." Upon such declaration of acceleration pursuant to a
Notice of Acceleration, the aggregate principal of and accrued and unpaid
interest and Additional Interest, if any, on the outstanding Notes shall become
due and payable without further action or notice.
No such rescission shall affect any subsequent Default or impair any
right consequent thereto.
SECTION 6.03. Other Remedies.
If a Default occurs and is continuing, the Trustee may pursue any
available remedy by proceeding at law or in equity to collect the payment of
principal of, or interest or Additional Interest, if any, on, the Notes or to
enforce the performance of any provision of the Notes or this Indenture.
The Trustee may maintain a proceeding even if it does not possess any
of the Notes or does not produce any of them in the proceeding. A delay or
omission by the Trustee or any Holder 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. No remedy is exclusive of any
other remedy. All available remedies are cumulative to the extent permitted by
law.
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SECTION 6.04. Waiver of Past Defaults.
Subject to Sections 2.09, 6.07 and 9.02, the Holders of a majority in
principal amount of the outstanding Notes (which may include consents obtained
in connection with a tender offer or exchange offer of Notes) by notice to the
Trustee may waive an existing Default or Event of Default and its consequences,
except a continuing Default or Event of Default in the payment of principal of,
or interest or premium on, any Note as specified in Section 6.01(1) or (2). In
case of any such waiver, the Company, the Trustee and the Holders shall be
restored to their former positions and rights hereunder and under the Notes,
respectively. This Section 6.04 shall be in lieu of Section 316(a)(1)(B) of the
Trust Indenture Act and such Section 316(a)(1)(B) of the Trust Indenture Act is
hereby expressly excluded from this Indenture and the Notes, as permitted by the
Trust Indenture Act. 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 thereto.
SECTION 6.05. Control by Majority.
The Holders of not less than a majority in principal amount of the
then outstanding Notes may direct the time, method and place of conducting any
proceeding for exercising any remedy available to the Trustee or exercising any
trust or power conferred on the Trustee. Subject to Section 7.01, however, the
Trustee may refuse to follow any direction that conflicts with any law or this
Indenture, that the Trustee determines in good faith may be unduly prejudicial
to the rights of another Holder, or that may involve the Trustee in personal
liability; provided that the Trustee may take any other action deemed proper by
the Trustee which is not inconsistent with such direction.
In the event the Trustee takes any action or follows any direction
pursuant to this Indenture, the Trustee shall be entitled to indemnification
against any loss or expense caused by taking such action or following such
direction.
SECTION 6.06. Limitation on Suits.
No Holder shall have any right to institute any proceeding with
respect to this Indenture or the Notes or for any remedy hereunder or
thereunder, unless:
(1) an Event of Default has occurred and is continuing and such Holder
has previously given the Trustee written notice that an Event of Default is
continuing;
(2) Holders of at least 25% in aggregate principal amount of the
outstanding Notes have requested in writing the Trustee to pursue the
remedy;
(3) such Holders have offered the Trustee reasonable security or
indemnity against any loss, liability or expense in complying with such
request;
(4) the Trustee has not complied with such request within 60 days
after the receipt thereof and the offer of security or indemnity; and
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(5) Holders of a majority in aggregate principal amount of the
outstanding Notes have not given the Trustee a written direction
inconsistent with such request within such 60-day period.
However, such limitations shall not apply to a suit instituted by a Holder of
any Note for enforcement of payment of the principal of or interest or premium
on, or Additional Interest (if any) with respect to, such Note on or after the
due date therefor.
A Holder may not use this Indenture to prejudice the rights of another
Holder or to obtain a preference or priority over such other Holder (it being
understood that the Trustee does not have an affirmative duty to ascertain
whether or not such actions or forbearances are unduly prejudicial to such
Holders).
SECTION 6.07. Rights of Holders To Receive Payment.
Notwithstanding any other provision of this Indenture, the right of
any Holder to receive payment of principal of, and interest and Additional
Interest, if any, on, a Note, on or after the respective due dates therefor, 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 the
Holder.
SECTION 6.08. Collection Suit by Trustee.
If an Event of Default in payment of principal, interest and premium
specified in Section 6.01(1) or (2) occurs and is continuing, the Trustee may
recover judgment in its own name and as trustee of an express trust against the
Company or any other obligor on the Notes for the whole amount of principal,
premium and accrued interest and Additional Interest (if any) and fees remaining
unpaid, together with interest and Additional Interest, if any, on overdue
principal and, to the extent that payment of such interest is lawful, interest
on overdue installments of interest, in each case at the rate per annum borne by
the Notes and such further amount as shall be sufficient to cover the costs and
expenses of collection, including the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel.
SECTION 6.09. Trustee May File Proofs of Claim.
The Trustee may 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 allowed in any judicial proceedings relating to the Company, its
creditors or their property and shall be entitled and empowered to collect and
receive any monies or other property payable or deliverable on any such claims
and to distribute the same, and any Custodian in any such judicial proceedings
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 agent and
counsel, and any other amounts due the Trustee under Section 7.07. To the extent
that payment of any such compensation, expenses, disbursements and advances of
the Trustee, its agents and counsel, and
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any other amounts due to the Trustee under Section 7.07 hereof out of the estate
in any such proceeding, shall be denied for any reason, payment of the same
shall be secured by a Lien on, and shall be paid out of, any and all
distributions, dividends, money, securities and other properties that the
Holders may be entitled to receive in such proceedings whether in liquidation or
under any plan of reorganization or arrangement or otherwise. Nothing herein
contained shall be deemed to authorize the Trustee to authorize or consent to or
accept or adopt on behalf of any Holder any plan of reorganization, arrangement,
adjustment or composition affecting the Notes or the rights of any Holder
thereof, or to authorize the Trustee to vote in respect of the claim of any
Holder in any such proceeding. The Trustee shall be entitled to participate as a
member of any official committee of creditors in the matters as it deems
necessary or advisable.
SECTION 6.10. Priorities.
If the Trustee collects any money or property pursuant to this Article
Six, it shall pay out the money or property in the following order:
First: to the Trustee for amounts due under Section 7.07;
Second: to Holders for interest accrued on the Notes, ratably, without
preference or priority of any kind, according to the amounts due and
payable on the Notes for interest or Additional Interest;
Third: to Holders for principal amounts due and unpaid on the Notes
and Additional Amounts, if any, ratably, without preference or priority of
any kind, according to the amounts due and payable on the Notes for
principal and premium;
Fourth: without duplication, to the Holders, for any other obligations
due to them hereunder or under the Notes, pro rata based on the amounts of
such obligations; and
Fifth: to the Company or, if applicable, the Guarantors, as their
respective interests may appear.
The Trustee, upon prior written notice to the Company, may fix a
record date and payment date for any payment to Holders pursuant to this Section
6.10.
SECTION 6.11. Undertaking for Costs.
In any suit for the enforcement of any right or remedy under this
Indenture or in any suit against the Trustee for any action taken or omitted by
it as 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
regard to the merits and good faith of the claims or defenses made by the party
litigant. This Section 6.11 shall not apply to a suit by the Trustee, a suit by
a Holder pursuant to Section 6.07, or a suit by a Holder or Holders of more than
10% in principal amount of the outstanding Notes.
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ARTICLE SEVEN
TRUSTEE
SECTION 7.01. Duties of Trustee.
(a) If an Event of Default has occurred and is continuing, the Trustee
shall exercise such of the rights and powers vested in it by this Indenture and
use the same degree of care and skill in their exercise as a prudent person
would exercise or use under the circumstances in the conduct of his or her own
affairs.
(b) Except during the continuance of an Event of Default:
(1) the Trustee need perform only those duties as are specifically set
forth herein or in the Trust Indenture Act and no duties, covenants,
responsibilities or obligations shall be implied in this Indenture against
the Trustee; and
(2) in the absence of bad faith on its part, the Trustee may
conclusively rely, as to the truth of the statements and the correctness of
the opinions expressed therein, upon certificates (including Officers'
Certificates) or opinions (including Opinions of Counsel) furnished to the
Trustee and conforming to the requirements of this Indenture. However, 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
examine the certificates and opinions to determine whether or not they
conform to the requirements of this Indenture (but need not confirm or
investigate the accuracy of mathematical calculations or other facts stated
therein).
(c) Notwithstanding anything to the contrary herein, the Trustee may
not be relieved from liability for its own negligent action, its own negligent
failure to act, or its own willful misconduct, except that:
(1) this paragraph does not limit the effect of Section 7.01(b);
(2) the Trustee shall not be liable for any error of judgment made in
good faith by a Responsible Officer, unless it is proved that the Trustee
was negligent in ascertaining the pertinent facts; and
(3) the Trustee shall not be liable with respect to any action it
takes or omits to take in good faith in accordance with a direction
received by it pursuant to Section 6.05.
(d) No provision of this Indenture shall require the Trustee to expend
or risk its own funds or otherwise incur any financial liability in the
performance of any of its duties hereunder or to take or omit to take any action
under this Indenture or take any action at the request or direction of Holders
if it shall have reasonable grounds for believing that repayment of such funds
is not assured to it.
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(e) Whether or not therein expressly so provided, every provision of
this Indenture that in any way relates to the Trustee is subject to this Section
7.01.
(f) The Trustee shall not be liable for interest on any money received
by it except as the Trustee may agree in writing with the Company. Money held in
trust by the Trustee need not be segregated from other funds except to the
extent required by law.
(g) In the absence of bad faith, negligence or willful misconduct on
the part of the Trustee, the Trustee shall not be responsible for the
application of any money by any Paying Agent other than the Trustee.
SECTION 7.02. Rights of Trustee.
Subject to Section 7.01:
(a) The Trustee may conclusively rely, and shall be protected in
acting or refraining from acting, upon any resolution, certificate
(including any Officers' Certificate), statement, instrument, opinion
(including any Opinion of Counsel), notice, request, direction, consent,
order, bond, debenture, or other paper or document believed by it to be
genuine and to have been signed or presented by the proper Person. The
Trustee need not investigate any fact or matter stated in the document.
(b) Before the Trustee acts or refrains from acting, it may require an
Officers' Certificate and/or an Opinion of Counsel, which shall conform to
the provisions of Section 11.05 (provided that no Officers' Certificate or
Opinion of Counsel shall be required in connection with the initial
issuance of Notes on the Issue Date). The Trustee shall not be liable for
any action it takes or omits to take in good faith in reliance on such
Officers' Certificate or Opinion of Counsel.
(c) The Trustee may act through its attorneys and agents and shall not
be responsible for the misconduct or negligence of any agent (other than an
agent who is an employee of the Trustee) appointed with due care.
(d) The Trustee shall not be liable for any action it takes or omits
to take in good faith which it reasonably believes to be authorized or
within its rights or powers under this Indenture; provided, however, that
the Trustee's conduct does not constitute willful misconduct, bad faith or
negligence.
(e) The Trustee may consult with counsel of its selection and the
advice or opinion of such counsel as to matters of law shall be full and
complete authorization and protection from liability in respect of any
action taken, omitted or suffered by it hereunder in good faith and in
accordance with the advice or opinion of such counsel.
(f) The Trustee shall be under no obligation to exercise any of the
rights or powers vested in it by this Indenture whether on its own motion
or at the request, order or direction of any of the Holders pursuant to the
provisions of this Indenture, unless such Holders shall have offered to the
Trustee security or indemnity reasonably satisfactory to it against the
costs, expenses and liabilities which may be incurred therein or thereby.
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(g) The Trustee shall not be bound to make any investigation into the
facts or matters stated in any resolution, certificate (including any
Officers' Certificate), statement, instrument, opinion (including any
Opinion of Counsel), notice, request, direction, consent, order, bond,
debenture, or other paper or document, but the Trustee, in its discretion,
may make such further inquiry or investigation into such facts or matters
as it may see fit and, if the Trustee shall determine to make such further
inquiry or investigation, it shall be entitled, upon reasonable notice to
the Company, to examine the books, records, and premises of the Company,
personally or by agent or attorney at the sole cost of the Company.
(h) The Trustee shall not be required to give any bond or surety in
respect of the performance of its powers and duties hereunder.
(i) The permissive rights of the Trustee to do things enumerated in
this Indenture shall not be construed as duties.
(j) Except with respect to Section 4.01 and 4.06, the Trustee shall
have no duty to inquire as to the performance of the Company with respect
to the covenants contained in Article Four. In addition, the Trustee shall
not be deemed to have knowledge of a Default or Event of Default except (i)
any Default or Event of Default occurring pursuant to Section 4.01, 6.01(1)
or 6.01(2) or (ii) any Default or Event of Default of which the Trustee
shall have received written notification.
(k) The rights, privileges, protections, immunities and benefits given
to the Trustee, including, without limitation, its right to be indemnified,
are extended to, and shall be enforceable by, the Trustee in each of its
capacities hereunder, and to each agent, custodian and other Person
employed to act hereunder.
(l) In no event shall the Trustee be responsible or liable for
special, indirect or consequential loss or damage of any kind whatsoever
(including, but not limited to, loss of profit) irrespective of whether the
Trustee has been advised of the likelihood of such loss or damage and
regardless of the form of action.
(m) The Trustee may request that the Company delivers a certificate in
the form of Exhibit F setting forth the names of individuals and/or titles
of officers authorized at such time to take specified actions pursuant to
this Indenture.
SECTION 7.03. Individual Rights of Trustee.
The Trustee in its individual or any other capacity may become the
owner or pledgee of Notes and may otherwise deal with the Company, its
Subsidiaries or its respective Affiliates with the same rights it would have if
it were not Trustee. However, in the event that the Trustee acquires any
conflicting interest it must eliminate such conflict within 90 days, apply to
the SEC for permission to continue as Trustee (if this Indenture has been
qualified under the Trust Indenture Act) or resign. Any Agent may do the same
with like rights. However, the Trustee must comply with Sections 7.10 and 7.11.
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SECTION 7.04. Trustee's Disclaimer.
The Trustee shall not be responsible for and makes no representation
as to the validity or adequacy of this Indenture or the Notes, it shall not be
accountable for the Company's use of the proceeds from the Notes, and it shall
not be responsible for any statement of the Company in this Indenture or any
document issued in connection with the sale of Notes or any statement in the
Notes other than the Trustee's certificate of authentication. The Trustee makes
no representations with respect to the effectiveness or adequacy of this
Indenture.
SECTION 7.05. Notice of Default.
If a Default or Event of Default occurs and is continuing and the
Trustee receives actual notice of such Default or Event of Default, the Trustee
shall mail to each Holder notice of the uncured Default or Event of Default
within 90 days after such Default or Event of Default occurs. Except in the case
of a Default in payment of principal of, or interest, Additional Interest or
premium on, any Note, including an accelerated payment and the failure to make a
payment on the Change of Control Payment Date pursuant to a Change of Control
Offer or the Asset Sale Payment Date pursuant to a Asset Sale Offer, the Trustee
may withhold the notice if and so long as a trust committee of Responsible
Officers of the Trustee in good faith determines that withholding the notice is
in the interest of the Holders.
SECTION 7.06. Reports by Trustee to Holders.
Within 60 days after each July 1, beginning with July 1, 2007, the
Trustee shall, to the extent that any of the events described in Trust Indenture
Act Section 313(a) occurred within the previous twelve months, but not
otherwise, mail to each Holder a brief report dated as of such date that
complies with Trust Indenture Act Section 313(a). The Trustee also shall comply
with Trust Indenture Act Sections 313(b), 313(c) and 313(d).
A copy of each report at the time of its mailing to Holders shall be
mailed by the Trustee to the Company and filed by the Trustee with the SEC and
each securities exchange, if any, on which the Notes are listed.
The Company shall notify the Trustee if the Notes become listed on any
securities exchange or of any delisting thereof and the Trustee shall comply
with Trust Indenture Act Section 313(d).
SECTION 7.07. Compensation and Indemnity.
The Company shall pay to the Trustee from time to time such reasonable
compensation as the Company and the Trustee shall from time to time agree in
writing for its services rendered by it hereunder. The Trustee's compensation
shall not be limited by any law on compensation of a trustee of an express
trust. The Company shall reimburse the Trustee promptly upon request for all
reasonable disbursements, expenses and advances (including reasonable fees and
expenses of counsel) incurred or made by it in addition to the compensation for
its services, except any such disbursements, expenses and advances as may be
attributable to the Trustee's negligence, bad faith or willful misconduct. Such
expenses shall include the reasonable fees and expenses of the Trustee's agents
and counsel.
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The Company shall indemnify each of the Trustee or any predecessor
Trustee and its agents for, and hold them harmless against, any and all loss,
damage, claims, liability or reasonable expenses, including taxes (other than
taxes based upon, measured by or determined by the income of such Person),
liability or expense incurred by them except for such actions to the extent
caused by any negligence, bad faith or willful misconduct on their part, arising
out of or in connection with the acceptance or administration of this trust
including the reasonable costs and expenses of defending themselves against or
investigating any claim or liability in connection with the exercise or
performance of any of the Trustee's rights, powers or duties hereunder. The
Trustee shall notify the Company promptly of any claim asserted against the
Trustee or any of its agents for which it may seek indemnity. The Company shall
defend the claim and the Trustee shall cooperate in the defense. The Trustee and
its agents subject to the claim may have separate counsel and the Company shall
pay the reasonable fees and expenses of such counsel; provided, however, that
the Company shall not be required to pay such fees and expenses if there is no
conflict of interest between the Company and the Trustee and its agents subject
to the claim in connection with such defense as reasonably determined by the
Trustee. The Company need not pay for any settlement made without its written
consent, which consent shall not be unreasonably withheld. The Company need not
reimburse any expense or indemnify against any loss or liability to the extent
incurred by the Trustee through the Trustee's negligence, bad faith, willful
misconduct or breach of its duties under this Indenture.
To secure the Company's payment obligations in this Section 7.07, the
Trustee shall have a Lien prior to the Notes against all money or property held
or collected by the Trustee, in its capacity as Trustee, except money or
property held in trust to pay principal and interest (including Additional
Interest, if any) on particular Notes.
When the Trustee incurs expenses or renders services after a Default
specified in Section 6.01(8) or (9) occurs, such expenses and the compensation
for such services shall be paid to the extent allowed under any Bankruptcy Law.
Notwithstanding any other provision in this Indenture, the foregoing
provisions of this Section 7.07 shall survive the satisfaction and discharge of
this Indenture or the appointment of a successor Trustee.
SECTION 7.08. Replacement of Trustee.
The Trustee may resign at any time upon 30 days' written notice to the
Company in writing. The Holders of a majority in principal amount of the
outstanding Notes may remove the Trustee upon 30 days written notice to the
Company and the Trustee and may appoint a successor Trustee (which Trustee shall
be reasonably acceptable to the Company). The Company may remove the Trustee if:
(1) the Trustee fails to comply with Section 7.10;
(2) the Trustee is adjudged a bankrupt or an insolvent or an order for
relief is entered with respect to the Trustee under any Bankruptcy Law;
(3) a receiver or other public officer takes charge of the Trustee or
its property; or
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(4) the Trustee becomes incapable of acting as Trustee hereunder.
If the Trustee resigns or is removed or if a vacancy exists in the
office of Trustee for any reason, the Company shall notify each Holder of such
event and shall promptly appoint a successor Trustee. Within one year after the
successor Trustee takes office, the Holders of a majority in principal amount of
the then outstanding Notes may appoint a successor Trustee to replace the
successor Trustee appointed by the Company.
A successor Trustee shall deliver a written acceptance of its
appointment to the retiring Trustee and to the Company. Immediately after that,
the retiring Trustee shall transfer, after payment of all sums then owing to the
Trustee pursuant to Section 7.07, all property held by it as Trustee to the
successor Trustee, subject to the Lien provided in Section 7.07, 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. A successor Trustee shall mail notice of its succession to each
Holder.
If a successor Trustee does not take office within 60 days after the
retiring Trustee resigns or is removed, the retiring Trustee, the Company or the
Holders of at least 10% in principal amount of the outstanding Notes may
petition, at the expense of the Company, any court of competent jurisdiction for
the appointment of a successor Trustee at the expense of the Company.
If the Trustee fails to comply with Section 7.10, any Holder may
petition any court of competent jurisdiction for the removal of the Trustee and
the appointment of a successor Trustee.
Notwithstanding replacement of the Trustee pursuant to this Section
7.08, the Company's obligations under Section 7.07 shall continue for the
benefit of the retiring Trustee.
SECTION 7.09. Successor Trustee by Merger, Etc.
If the Trustee consolidates with, merges or converts into, or
transfers all or substantially all of its corporate trust business to, another
Person, the successor Person, without any further act, shall, if such resulting,
surviving or transferee Person is otherwise eligible hereunder, be the successor
Trustee; provided that such Person shall be otherwise qualified and eligible
under this Article Seven.
SECTION 7.10. Eligibility; Disqualification.
This Indenture shall always have a Trustee who satisfies the
requirement of Trust Indenture Act Sections 310(a)(1), 310(a)(2), 310(a)(3) and
310(a)(5). The Trustee shall have a combined capital and surplus of at least
$100.0 million as set forth in its most recent published annual report of
condition. The Trustee shall comply with Trust Indenture Act Section 310(b);
provided, however, that there shall be excluded from the operation of Trust
Indenture Act Section 310(b)(1) any indenture or indentures under which other
securities, or certificates of interest or participation in other securities, of
the Company are outstanding, if the requirements for such exclusion set forth in
Trust Indenture Act Section 310(b)(1) are met. The provisions of Trust Indenture
Act Section 310 shall apply to the Company and any other obligor of the Notes.
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SECTION 7.11. Preferential Collection of Claims Against the Company.
The Trustee, in its capacity as Trustee hereunder, shall comply with
Trust Indenture Act Section 311(a), excluding any creditor relationship listed
in Trust Indenture Act Section 311(b). A Trustee who has resigned or been
removed shall be subject to Trust Indenture Act Section 311(a) to the extent
indicated. The Trustee hereby waives any right to set-off any claim that it may
have against the Company in any capacity (other than as Trustee and Paying
Agent) against any of the assets of the Company held by the Trustee.
ARTICLE EIGHT
SATISFACTION OR DISCHARGE OF INDENTURE; DEFEASANCE
SECTION 8.01. Termination of the Company's Obligations.
The Company may terminate its obligations under the Notes and this
Indenture and the obligations of the Guarantors under the Note Guarantees and
this Indenture and this Indenture shall be discharged and shall cease to be of
further effect as to all Notes issued hereunder and then outstanding, except
those obligations referred to in the penultimate paragraph of this Section 8.01,
when:
(1) either:
(a) all Notes that have been authenticated, except lost, stolen
or destroyed Notes that have been replaced or paid and Notes for whose
payment money has been deposited in trust or segregated and held in
trust by the Company and thereafter repaid to the Company or
discharged from the trust, have been delivered to the Trustee for
cancellation; or
(b) all Notes that have not been delivered to the Trustee for
cancellation have become due and payable by reason of the mailing of a
notice of redemption or otherwise or will become due and payable
within one year or have been called for redemption pursuant to Section
5, Section 6 or Section 7 of the Notes and the Company has irrevocably
deposited or caused to be deposited with the Trustee as trust funds in
trust solely for the benefit of the Holders, cash or Cash Equivalents
in U.S. dollars, non-callable Government Securities, or a combination
thereof, in amounts as shall be sufficient, without consideration of
any reinvestment of interest, to pay and discharge the entire
Indebtedness on the Notes not delivered to the Trustee for
cancellation for principal, premium and Additional Interest, if any,
and accrued interest to the date of maturity or redemption;
(2) no Default or Event of Default has occurred and is continuing on
the date of the deposit (other than a Default or Event of Default resulting
from the borrowing of funds to be applied to such deposit) and the deposit
shall not result in a breach or violation of, or constitute a default
under, any other instrument 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;
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(3) the Company or any Guarantor has paid or caused to be paid all
sums payable by them under this Indenture; and
(4) the Company has delivered irrevocable instructions to the Trustee
under this Indenture to apply the deposited money toward the payment of the
Notes at maturity or on the Redemption Date, as the case may be.
In addition, the Company must deliver an Officers' Certificate and an Opinion of
Counsel to the Trustee stating that all conditions precedent to satisfaction and
discharge have been satisfied.
In the case of clause (1)(b) of this Section 8.01, and subject to the
next sentence and notwithstanding the foregoing paragraph, the Company's
obligations in Sections 2.03, 2.05, 2.06, 2.07, 2.08, 2.12, 4.01, 4.02, 4.03 (as
to legal existence of the Company only), 7.07, 8.06 and 8.08 shall survive until
the Notes are no longer outstanding pursuant to the last paragraph of Section
2.08. After the Notes are no longer outstanding, the Company's obligations in
Sections 7.07, 8.06 and 8.08 shall survive.
After such delivery or irrevocable deposit, the Trustee upon request
shall acknowledge in writing the discharge of the Company's obligations under
the Notes and this Indenture except for those surviving obligations specified
above.
SECTION 8.02. Option to Effect Legal Defeasance or Covenant Defeasance.
The Company may, at the option of its Boards of Directors evidenced by
a resolution set forth in an Officers' Certificate, and at any time, elect to
have either Section 8.03 or 8.04 applied to all outstanding Notes and all
obligations of any Guarantor upon compliance with the conditions set forth in
this Article Eight.
SECTION 8.03. Legal Defeasance.
Upon the Company's exercise under Section 8.02 of the option
applicable to this Section 8.03, the Company and each of the Guarantors shall,
subject to the satisfaction of the conditions set forth in Section 8.05, be
deemed to have been discharged from their obligations with respect to all
outstanding Notes (including the Note Guarantees) on the date the conditions set
forth below are satisfied (hereinafter, "LEGAL DEFEASANCE"). Such Legal
Defeasance means that the Company and the Guarantors shall be deemed to have
paid and discharged the entire Indebtedness represented by the outstanding Notes
(including the Note Guarantees), which shall thereafter be deemed to be
"outstanding" only for the purposes of Section 8.06 and the other Sections of
this Indenture referred to in clauses (1) and (2) below, and to have satisfied
all of their other obligations under such Notes, the Guarantees and this
Indenture (and the Trustee, on demand of and at the expense of the Company,
shall execute proper instruments acknowledging the same), except for the
following provisions which shall survive until otherwise terminated or
discharged hereunder:
(1) the rights of Holders of outstanding Notes to receive payments in
respect of the principal of or interest or premium and Additional Interest,
if any, on such Notes when such payments are due from the trust referred to
in Section 8.06;
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(2) the Company's obligations with respect to the Notes under Article
Two and Section 4.02;
(3) the rights, powers, trusts, duties and immunities of the Trustee
hereunder, and the Company's and the Guarantors' obligations in connection
therewith; and
(4) this Article Eight.
Subject to compliance with this Article Eight, the Company may exercise its
option under this Section 8.03 notwithstanding the prior exercise of its option
under Section 8.04.
SECTION 8.04. Covenant Defeasance.
Upon the Company's exercise under Section 8.02 of the option
applicable to this Section 8.04, (i) the Company and each of the Guarantors
shall, subject to the satisfaction of the conditions set forth in Section 8.05,
be released from each of their obligations under the covenants contained in
Sections 4.03 (other than with respect to the legal existence of the Company),
4.04, 4.07, 4.09 through 4.18 (except for obligations under Section 4.17
mandated by the Trust Indenture Act), and Section 5.01 (except for the covenants
contained in clauses (a)(1) and (a)(2) thereof) with respect to the outstanding
Notes on and after the date the conditions set forth in Section 8.05 are
satisfied (hereinafter, "COVENANT DEFEASANCE"), (ii) the Company and the
Guarantors may cause the release of the Note Guarantees and of any Liens
securing the Notes or the Guarantees, and (iii) the Notes shall thereafter be
deemed not "outstanding" for the purposes of any direction, waiver, consent or
declaration or act of Holders (and the consequences of any thereof) in
connection with such covenants, but shall continue to be deemed "outstanding"
for all other purposes hereunder (it being understood that such Notes shall not
be deemed outstanding for accounting purposes). For this purpose, Covenant
Defeasance means that, with respect to the outstanding Notes and Guarantees, the
Company and the Guarantors 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, and
any release of the Note Guarantees or of Liens securing the Notes or the Note
Guarantees, shall not constitute a Default or an Event of Default under Section
6.01, but, except as specified above, the remainder of this Indenture and such
Notes and Guarantees shall be unaffected thereby. In addition, upon the
Company's exercise under Section 8.02 of the option applicable to this Section
8.04, subject to the satisfaction of the conditions set forth in Section 8.04,
Sections 6.01(3) through 6.01(7) shall not constitute Events of Default.
SECTION 8.05. Conditions to Legal or Covenant Defeasance.
In order to exercise either Legal Defeasance or Covenant Defeasance
under either Sections 8.03 or 8.04:
(1) the Company must irrevocably deposit with the Trustee, in trust,
for the benefit of the Holders, cash in U.S. dollars, non-callable
Government Securities, or a combination thereof, in amounts as shall be
sufficient, without consideration of any reinvestment of interest, in the
opinion of a nationally recognized investment bank,
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appraisal firm or firm of independent public accountants, to pay the
principal of or interest and premium and Additional Interest, if any, on
the outstanding Notes on the Stated Maturity or on the applicable
Redemption Date, as the case may be, and the Company must specify whether
the Notes are being defeased to maturity or to a particular Redemption
Date;
(2) in the case of an election under Section 8.03, the Company must
deliver to the Trustee an Opinion of Counsel reasonably acceptable to the
Trustee confirming that (a) the Company has received from, or there has
been published by, the U.S. Internal Revenue Service a ruling or (b) since
the date of this Indenture, there has been a change in the applicable U.S.
federal income tax law, in either case to the effect that, and based
thereon such Opinion of Counsel shall confirm that, the Holders of the
outstanding Notes will not recognize income, gain or loss for federal
income tax purposes as a result of such Legal Defeasance and shall be
subject to U.S. federal income tax on the same amounts, in the same manner
and at the same times as would have been the case if such Legal Defeasance
had not occurred;
(3) in the case of an election under Section 8.04, the Company must
deliver to the Trustee an Opinion of Counsel reasonably acceptable to the
Trustee confirming that the Holders of the outstanding Notes shall not
recognize income, gain or loss for U.S. federal income tax purposes as a
result of such Covenant Defeasance and shall be subject to U.S. federal
income tax on the same amounts, in the same manner and at the same times as
would have been the case if such Covenant Defeasance had not occurred;
(4) no Default or Event of Default has occurred and is continuing on
the date of such deposit (other than a Default or Event of Default
resulting from, or otherwise arising in connection with, the borrowing of
funds to be applied to such deposit and the grant of any Lien securing such
borrowing);
(5) such Legal Defeasance or Covenant Defeasance will not result in a
breach or violation of, or constitute a default under, any material
agreement or instrument (other than this Indenture) to which the Company or
any of its Subsidiaries is a party or by which the Company or any of its
Subsidiaries is bound;
(6) the Company must deliver to the Trustee an Officers' Certificate
stating that the deposit was not made by the Company with the intent of
preferring the Holders over the other creditors of the Company or any of
its Subsidiaries or with the intent of defeating, hindering, delaying or
defrauding creditors of the Company or any of its Subsidiaries or others;
and
(7) the Company must deliver to the Trustee an Officers' Certificate
and an Opinion of Counsel, each to the effect that all conditions precedent
relating to the Legal Defeasance or the Covenant Defeasance have been
complied with.
Notwithstanding the foregoing, the opinion of counsel required by
clause (2) above with respect to an election under Section 8.03 need not be
delivered if all Notes not theretofore delivered to the Trustee for cancellation
shall become due and payable within one year
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under arrangements reasonably satisfactory to the Trustee for the giving of a
notice of redemption by the Trustee in the name and at the expense of the
Company.
If the funds deposited with the trustee to effect Covenant Defeasance
are insufficient to pay the principal of and interest on the Notes when due,
then the obligations of the Company and the Guarantors under this Indenture will
be revived and no such defeasance will be deemed to have occurred.
SECTION 8.06. Deposited Money and Government Securities To Be Held in Trust;
Other Miscellaneous Provisions.
Subject to Section 8.07, all cash, Cash Equivalents and non-callable
Government Securities (including the proceeds thereof) deposited with the
Trustee (or other qualifying Trustee, collectively for purposes of this Section
8.06, the "TRUSTEE") pursuant to Article Eight in respect of the outstanding
Notes shall be held in trust and applied by the Trustee, in accordance with the
provisions of such Notes and this Indenture, to the payment, either directly or
through any Paying Agent as the Trustee may determine, to the Holders of such
Notes of all sums due and to become due thereon in respect of principal, premium
and Additional Interest, if any, and interest, but such money need not be
segregated from other funds except to the extent required by law.
The Company shall pay and indemnify the Trustee against any tax, fee
or other charge imposed on or assessed against the cash or non-callable
Government Securities deposited pursuant to Section 8.05 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.
Notwithstanding anything in this Article Eight to the contrary, the
Trustee shall deliver or pay to the Company from time to time upon the request
of the Company any money or non-callable Government Securities held by it as
provided in Section 8.04 which, in the opinion of a firm of independent public
accountants or any investment bank or appraisal firm, in each case nationally
recognized in the United States expressed in a written certification thereof
delivered to the Trustee (which may be the opinion delivered under Section
8.05(1)), are in excess of the amount thereof that would then be required to be
deposited to effect an equivalent Legal Defeasance or Covenant Defeasance.
SECTION 8.07. Repayment to the Company.
Any money deposited with the Trustee or any Paying Agent, in trust for
the payment of the principal of, premium or Additional Interest, if any, or
interest on any Note and remaining unclaimed for two years after such principal,
premium or Additional Interest, if any, or interest has become due and payable
shall promptly be paid to the Company on their written request or shall be
discharged from such trust; and the Holder of such Note shall thereafter be
permitted to look only to the Company for payment thereof, and all liability of
the Trustee or such Paying Agent with respect to such trust money, and all
liability of the Company as trustee thereof, shall thereupon cease.
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SECTION 8.08. Reinstatement.
If the Trustee or Paying Agent is unable to apply any United States
dollars or non-callable Government Securities in accordance with this Article
Eight, as the case may be, by reason of any order or judgment of any court or
governmental authority enjoining, restraining or otherwise prohibiting such
application, then the Company's and the Guarantors' obligations under this
Indenture and the Notes and the Guarantees shall be revived and reinstated as
though no deposit had occurred pursuant to this Article Eight until such time as
the Trustee or Paying Agent is permitted to apply all such money in accordance
with this Article Eight, as the case may be; provided, however, that (a) if the
Company makes any payment of principal of, premium or Additional Interest, if
any, or interest on any Note following the reinstatement of its obligations, the
Company shall be subrogated to the rights of the Holders of such Notes to
receive such payment from the money held by the Trustee or Paying Agent and (b)
so long as no payment Default or Event of Default has occurred and is
continuing, unless otherwise required by any legal proceeding or any other order
or judgment of any court or governmental authority, the Trustee or Paying Agent
shall return all such money and U.S. Obligations (in each case to the extent
remaining in their possession) to the Company promptly after receiving a written
request therefore at any time, if such reinstatement of the Company's
obligations has occurred and continues to be in effect other than such money as
has been applied to payment on the Notes.
The Company shall be entitled to cure any event resulting in the
reinstatement of its obligations hereunder.
ARTICLE NINE
AMENDMENTS, SUPPLEMENTS AND WAIVERS
SECTION 9.01. Without Consent of Holders.
The Company, the Guarantors and the Trustee may amend, waive,
supplement or otherwise modify this Indenture, the Notes, the Note Guarantees or
any other agreement or instrument entered into in connection with this Indenture
without notice to or consent of any Holder:
(1) to cure any ambiguity, defect or inconsistency;
(2) to provide for uncertificated Notes in addition to or in place of
certificated Notes;
(3) to provide for the assumption of the Company's or a Guarantor's
obligations to Holders and Guarantees in the case of a merger, amalgamation
or consolidation or sale of all or substantially all of the Company's or
such Guarantor's assets, as applicable;
(4) to make any change that would provide any additional rights or
benefits to the Holders or that does not materially adversely affect the
legal rights under this Indenture of any such Holder;
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(5) to comply with requirements of the SEC in order to effect or
maintain the qualification of this Indenture under the Trust Indenture Act;
(6) to allow any Guarantor to execute a supplemental indenture and a
Guarantee with respect to the Notes or to release a Guarantee or a security
interest under the Notes or a Guarantee in accordance with the terms of
this Indenture;
(7) to provide for the issuance of Additional Notes in accordance with
the terms of this Indenture;
(8) to evidence and provide for the acceptance of appointment under
this Indenture by a successor Trustee;
(9) to comply with the rules of any applicable securities depository;
(10) to conform the text of this Indenture, the Note Guarantees or the
Notes to any provision of the "Description of Notes" in the Offering
Memorandum to the extent that such provision in the "Description of Notes"
was intended by the Company (as demonstrated by an Officers' Certificate)
to be a substantially verbatim recitation of a provision of this Indenture,
the Note Guarantees or the Notes;
(11) to add to the covenants of the Company or any Restricted
Subsidiary for the benefit of the Holders of the Notes or surrender any
rights or powers conferred upon the Company or any Restricted Subsidiary;
or
(12) to secure the Notes.
Upon the request of the Company accompanied by a resolution of its
Board of Directors authorizing the execution of any such amended or supplemental
Indenture, and upon receipt by the Trustee of any documents requested under
Section 7.02(b), the Trustee shall join with the Company and any Guarantors in
the execution of any amended or supplemental Indenture authorized or permitted
by the terms of this Indenture and make any further appropriate agreements and
stipulations that may be therein contained, but the Trustee shall not be
obligated to enter into such amended or supplemental Indenture that affects its
own rights, duties or immunities under this Indenture or otherwise.
SECTION 9.02. With Consent of Holders.
(a) Subject to Sections 6.07 and 9.03, the Company, the Guarantors and
the Trustee, together, with the written consent of the Holder or Holders of at
least a majority in aggregate principal amount of the Notes then outstanding
(including, without limitation, consents obtained in connection with a purchase
of, or tender offer or exchange offer for, Notes), may amend or supplement this
Indenture, the Notes or the Note Guarantees, and any existing Default or Event
of Default or compliance with any provision of this Indenture or the Notes or
the Note Guarantees may be waived with the consent of the Holders of a majority
in principal amount of the then outstanding Notes (including, without
limitation, consents obtained in connection with a purchase of, or tender offer
or exchange offer for, Notes).
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(b) Notwithstanding Section 9.02(a), without the consent of the
Company and each Holder affected, an amendment, supplement or waiver may not
(with respect to any Notes held by a non-consenting Holder):
(1) reduce the principal amount of Notes whose Holders must consent to
an amendment, supplement or waiver;
(2) reduce the principal of or change the fixed maturity of any Note
or alter the provisions with respect to the redemption of the Notes (it
being understood that this clause (2) does not apply to Sections 4.09 and
4.13);
(3) reduce the rate of or change the time for payment of interest or
Additional Interest on any Note;
(4) waive a Default or Event of Default in the payment of principal
of, or interest or premium, or Additional Interest, if any, on the Notes
(except a rescission of acceleration of the Notes by the holders of at
least a majority in aggregate principal amount of the then outstanding
Notes in accordance with the provisions of this Indenture and a waiver of
the payment default that resulted from such acceleration);
(5) make any Note payable in money other than that stated in the
Notes;
(6) make any change in the provisions of this Indenture relating to
waivers of past Defaults or the rights of Holders to receive payments of
principal of, or interest or premium or Additional Interest, if any, on the
Notes, or Additional Amounts, if any;
(7) waive a redemption payment with respect to any Note (it being
understood that this clause (7) does not apply to a payment required by
Section 4.09 or 4.13);
(8) release any Guarantor from any of its obligations under its
Guarantee or this Indenture, except in accordance with the terms of this
Indenture;
(9) in the event that the obligation to make a Change of Control Offer
or an Asset Sale Offer has arisen, amend, change or modify in any material
respect the obligation of the Company to make and consummate such Change of
Control Offer or such Asset Sale Offer, as the case may be;
(10) expressly subordinate in right of payment the Notes or the Note
Guarantees to any other Indebtedness of the Company or any Guarantor; or
(11) make any change to this Section 9.02.
(c) It shall not be necessary for the consent of the Holders under
this Section to approve the particular form of any proposed amendment,
supplement or waiver but it shall be sufficient if such consent approves the
substance thereof.
(d) A consent to any amendment, supplement or waiver under this
Indenture by any Holder given in connection with an exchange (in the case of an
exchange offer) or a
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tender (in the case of a tender offer) of such Holder's Notes shall not be
rendered invalid by such tender or exchange.
(e) After an amendment, supplement or waiver under this Section 9.02
becomes effective, the Company shall mail to the Holders affected thereby a
notice briefly describing the amendment, supplement or waiver. Any failure of
the Company to mail such notice, or any defect therein, shall not, however, in
any way impair or affect the validity of any such amendment, supplement or
waiver.
SECTION 9.03. Compliance with the Trust Indenture Act.
From the date on which this Indenture is qualified under the Trust
Indenture Act, every amendment, waiver or supplement of this Indenture, the
Notes or the Note Guarantees shall be set forth in a document that complies with
the Trust Indenture Act as then in effect.
SECTION 9.04. Revocation and Effect of Consents.
Until an amendment, waiver or supplement becomes effective, a consent
to it by a Holder is a continuing consent by the Holder and every subsequent
Holder of a Note or portion of a Note that evidences the same debt as the
consenting Holder's Note, even if notation of the consent is not made on any
Note. However, any such Holder or subsequent Holder may revoke the consent as to
his Note or portion of his Note by notice to the Trustee or the Company received
before the date on which the Trustee receives an Officers' Certificate
certifying that the Holders of the requisite principal amount of Notes have
consented (and not theretofore revoked such consent) to the amendment,
supplement or waiver.
The Company may, but shall not be obligated to, fix a record date for
the purpose of determining the Holders entitled to consent to any amendment,
supplement or waiver, which record date shall be prior to the first solicitation
of such consent. If a record date is fixed, then notwithstanding the last
sentence of the immediately preceding paragraph, those Persons who were Holders
at such record date (or their duly designated proxies), and only those Persons,
shall be entitled to revoke any consent previously given, whether or not such
Persons continue to be Holders after such record date. No such consent shall be
valid or effective for more than 90 days after such record date. The Company
shall inform the Trustee in writing of the fixed record date if applicable.
After an amendment, supplement or waiver becomes effective, it shall
bind every Holder, unless it makes a change described in any of clauses (1)
through (11) of Section 9.02(b), in which case, the amendment, supplement or
waiver shall bind only each Holder who has consented to it and every subsequent
Holder of a Note or portion of a Note that evidences the same debt as the
consenting Holder's Note; provided that the Company and the Trustee are able to
identify the particular Note which has so consented; provided, further, that any
such waiver shall not impair or affect the right of any Holder to receive
payment of principal of, and interest, Additional Interest (if any) and premium
on, a Note, on or after the respective due dates therefor, or to bring suit for
the enforcement of any such payment on or after such respective dates without
the consent of such Holder.
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SECTION 9.05. Notation on or Exchange of Notes.
If an amendment, supplement or waiver changes the terms of a Note, the
Company may require the Holder to deliver it to the Trustee. The Company shall
provide the Trustee with an appropriate notation on the Note about the changed
terms and cause the Trustee to return it to the Holder at the Company's expense.
Alternatively, if the Company or the Trustee so determines, the Company in
exchange for the Note shall issue, and the Trustee shall authenticate, a new
Note that reflects the changed terms. Failure to make the appropriate notation
or issue a new Note shall not affect the validity and effect of such amendment,
supplement or waiver.
SECTION 9.06. Trustee To Sign Amendments, Etc.
The Trustee shall execute any amendment, supplement or waiver
authorized pursuant to this Article Nine; provided that the Trustee may, but
shall not be obligated to, execute any such amendment, supplement or waiver
which affects the Trustee's own rights, duties or immunities under this
Indenture. The Trustee shall be entitled to receive, and, subject to Section
7.01, shall be fully protected in conclusively relying upon, an Opinion of
Counsel and an Officers' Certificate, each stating that the execution of any
amendment, supplement or waiver authorized pursuant to this Article Nine is
authorized or permitted by this Indenture. Such Opinion of Counsel shall be at
the expense of the Company.
Upon the execution of any amended or supplemental indenture pursuant
to and in accordance with this Article Nine, this Indenture shall be modified in
accordance therewith, and such amended or supplemental Indenture shall form a
part of this Indenture for all purposes; and every Holder of Notes theretofore
or thereafter authenticated and delivered hereunder shall be bound thereby.
ARTICLE TEN
NOTE GUARANTEE
SECTION 10.01. Unconditional Guarantee.
Subject to the provisions of this Article Ten, each of the Guarantors
hereby, jointly and severally, unconditionally and irrevocably guarantees to
each Holder of a Note authenticated and delivered by the Trustee and to the
Trustee and its successors and assigns, irrespective of the validity and
enforceability of this Indenture, the Notes or the obligations of the Company to
the Holders or the Trustee hereunder or thereunder: (a) (x) the due and punctual
payment of the principal of, premium, if any, and interest and Additional
Interest, if any, on the Notes when and as the same shall become due and
payable, whether at maturity, upon redemption or repurchase, by acceleration or
otherwise, (y) the due and punctual payment of interest on the overdue principal
and (to the extent permitted by law) interest and Additional Interest, if any,
on the Notes and (z) the due and punctual payment and performance of all other
obligations of the Company, in each case, to the Holders or the Trustee
hereunder or thereunder (including amounts due the Trustee under Section 7.07),
all in accordance with the terms hereof and thereof (collectively, the
"GUARANTEE OBLIGATIONS"); and (b) in case of any extension of
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time of payment or renewal of any Notes or any of such other obligations, the
due and punctual payment and performance of the Guarantee Obligations in
accordance with the terms of the extension or renewal, whether at maturity, upon
redemption or repurchase, by acceleration or otherwise. Failing payment when due
of any amount so guaranteed, or failing performance of any other obligation of
the Company to the Holders under this Indenture or under the Notes, for whatever
reason, each Guarantor shall be obligated to pay, or to perform or cause the
performance of, the same immediately. An Event of Default under this Indenture
or the Notes shall constitute an Event of Default under the Note Guarantees, and
shall entitle the Holders to accelerate the obligations of the Guarantors
thereunder in the same manner and to the same extent as the obligations of the
Company.
Each of the Guarantors hereby agrees that (to the extent permitted by
law) its obligations hereunder shall be unconditional, irrespective of the
validity, regularity or enforceability of the Notes or this Indenture, the
absence of any action to enforce the same, any waiver or consent by any Holder
with respect to any provisions hereof or thereof, any release of any other
Guarantor, the recovery of any judgment against the Company, any action to
enforce the same, whether or not a Note Guarantee is affixed to any particular
Note, or any other circumstance which might otherwise constitute a legal or
equitable discharge or defense of a Guarantor (other than payment). To the
fullest extent permitted by law and subject to Section 6.06, each of the
Guarantors hereby waives the benefit of diligence, presentment, demand of
payment, filing of claims with a court in the event of insolvency or bankruptcy
of the Company, any right to require a proceeding first against the Company,
protest, notice and all demands whatsoever and covenants that its Note Guarantee
shall not be discharged except by complete performance of the obligations
contained in the Notes, this Indenture and this Note Guarantee. This Note
Guarantee is a guarantee of payment and not of collection. If any Holder or the
Trustee is required by any court or otherwise to return to the Company or to any
Guarantor, or any custodian, trustee, liquidator or other similar official
acting in relation to the Company or such Guarantor, any amount paid by the
Company or such Guarantor to the Trustee or such Holder, this Note Guarantee, to
the extent theretofore discharged, shall be reinstated in full force and effect.
Each Guarantor further agrees that, as between it, on the one hand, and the
Holders and the Trustee, on the other hand, (a) subject to this Article Ten, the
maturity of the obligations guaranteed hereby may be accelerated as provided in
Article Six for the purposes of this Note Guarantee, notwithstanding any stay,
injunction or other prohibition preventing such acceleration in respect of the
obligations guaranteed hereby, and (b) in the event of any acceleration of such
obligations as provided in Article Six, such obligations (whether or not due and
payable) shall forthwith become due and payable by the Guarantors for the
purpose of this Note Guarantee.
SECTION 10.02. Limitation on Guarantor Liability.
Each Guarantor, and by its acceptance of Notes, each Holder, hereby
confirms that it is the intention of all such parties that the Note Guarantee of
such Guarantor not constitute a fraudulent transfer or conveyance for purposes
of Bankruptcy Law, the Uniform Fraudulent Conveyance Act, the Uniform Fraudulent
Transfer Act or any similar federal, foreign, provincial or state law to the
extent applicable to any Note Guarantee. To effectuate the foregoing intention,
the Trustee, the Holders and the Guarantors hereby irrevocably agree (to the
extent required by such laws) that the obligations of such Guarantor under its
Note Guarantee and this Article Ten shall be limited to the maximum amount as
will, after giving effect to all other
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contingent and fixed liabilities of such Guarantor (including any guarantee
under the Credit Agreement) that are relevant under such laws, and after giving
effect to any collections from, rights to receive contribution from or payments
made by or on behalf of any other Guarantor in respect of the obligations of
such other Guarantor under this Article Ten, result in the obligations of such
Guarantor under its Note Guarantee not constituting a fraudulent transfer or
conveyance. Each Guarantor that makes a payment for distribution under its Note
Guarantee is entitled to a contribution from each other Guarantor in a pro rata
amount based on the adjusted net assets of each Guarantor.
SECTION 10.03. Execution and Delivery of Guarantee.
To further evidence its Guarantee set forth in Section 10.01, each
Guarantor hereby agrees that a notation of such Guarantee, substantially in the
form of Exhibit E hereto (each, a "NOTATION OF GUARANTEE"), shall be endorsed on
each Note authenticated and delivered by the Trustee. Such Notation of Guarantee
shall be executed on behalf of each Guarantor by either manual or facsimile
signature of one Officer or other person duly authorized by all necessary
corporate action of such Guarantor who shall have been duly authorized to so
execute by all requisite corporate action. The validity and enforceability of
any Notation of Guarantee shall not be affected by the fact that it is not
affixed to any particular Note.
Each of the Guarantors hereby agrees that its Note Guarantee set forth
in Section 10.01 shall remain in full force and effect notwithstanding any
failure to endorse on each Note a Notation of Guarantee.
If an Officer of a Guarantor whose signature is on this Indenture or a
Notation of Guarantee no longer holds that office at the time the Trustee
authenticates the Note on which such Notation of Guarantee is endorsed or at any
time thereafter, such Guarantor's Notation of Guarantee of such Note shall
nevertheless be valid.
The delivery of any Note by the Trustee, after the authentication
thereof hereunder, shall constitute due delivery of any Note Guarantee set forth
in this Indenture on behalf of each Guarantor.
SECTION 10.04. Release of a Guarantor.
Notwithstanding Section 4.16(a), a Guarantor shall be automatically
and unconditionally released from its obligations under its Note Guarantee and
its obligations under this Indenture and the Registration Rights Agreement in
accordance with Section 4.16(b) or as otherwise expressly permitted by this
Indenture.
The Trustee shall execute an appropriate instrument prepared by the
Company evidencing the release of a Guarantor from its obligations under its
Note Guarantee upon receipt of a request by the Company or such Guarantor
accompanied by an Officers' Certificate and, if requested by the Trustee, an
Opinion of Counsel certifying as to the compliance with this Section 10.04;
provided, however, that the legal counsel delivering such Opinion of Counsel may
rely as to matters of fact on one or more Officers' Certificates of the Company.
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Except as set forth in Articles Four and Five and this Section 10.04,
nothing contained in this Indenture or in any of the Notes shall prevent any
consolidation or merger of a Guarantor with or into the Company or another
Guarantor or shall prevent any sale or conveyance of the property of a Guarantor
as an entirety or substantially as an entirety to the Company or another
Guarantor.
SECTION 10.05. Waiver of Subrogation.
Until this Indenture is discharged and all of the Notes are discharged
and paid in full, each Guarantor hereby irrevocably waives and agrees not to
exercise any claim or other rights which it may now or hereafter acquire against
the Company that arise from the existence, payment, performance or enforcement
of the Company's obligations under the Notes or this Indenture and such
Guarantor's obligations under this Note Guarantee and this Indenture, in any
such instance including, without limitation, any right of subrogation,
reimbursement, exoneration, contribution, indemnification, and any right to
participate in any claim or remedy of the Holders against the Company, whether
or not such claim, remedy or right arises in equity, or under contract, statute
or common law, including, without limitation, the right to take or receive from
the Company, directly or indirectly, in cash or other assets or by set-off or in
any other manner, payment or security on account of such claim or other rights.
If any amount shall be paid to any Guarantor in violation of the preceding
sentence and any amounts owing to the Trustee or the Holders under the Notes,
this Indenture, or any other document or instrument delivered under or in
connection with such agreements or instruments, shall not have been paid in
full, such amount shall have been deemed to have been paid to such Guarantor for
the benefit of, and held in trust for the benefit of, the Trustee or the Holders
and shall forthwith be paid to the Trustee for the benefit of itself or such
Holders to be credited and applied to the obligations in favor of the Trustee or
the Holders, as the case may be, whether matured or unmatured, in accordance
with the terms of this Indenture. Each Guarantor acknowledges that it shall
receive direct and indirect benefits from the financing arrangements
contemplated by this Indenture and that the waiver set forth in this Section
10.05 is knowingly made in contemplation of such benefits.
SECTION 10.06. Immediate Payment.
Each Guarantor agrees to make immediate payment to the Trustee on
behalf of the Holders of all Guarantee Obligations owing or payable to the
respective Holders upon receipt of a demand for payment therefor by the Trustee
to such Guarantor in writing.
SECTION 10.07. No Set-Off.
Each payment to be made by a Guarantor hereunder in respect of the
Guarantee Obligations shall be payable in the currency or currencies in which
such Guarantee Obligations are denominated, and, to the fullest extent permitted
by law, shall be made without set-off, counterclaim, reduction or diminution of
any kind or nature.
SECTION 10.08. Guarantee Obligations Absolute.
The obligations of each Guarantor hereunder are and shall be absolute
and unconditional and any monies or amounts expressed to be owing or payable by
each Guarantor
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hereunder which may not be recoverable from such Guarantor on the basis of a
Note Guarantee shall be recoverable from such Guarantor as a primary obligor and
principal debtor in respect thereof.
SECTION 10.09. Note Guarantee Obligations Continuing.
The obligations of each Guarantor hereunder shall be continuing and
shall remain in full force and effect until all such obligations have been paid
and satisfied in full. Each Guarantor agrees with the Trustee that it shall,
upon request by the Trustee, deliver to the Trustee suitable acknowledgments of
this continued liability hereunder and under any other instrument or instruments
relating to this Indenture in such form as counsel to the Trustee may reasonably
advise.
SECTION 10.10. Note Guarantee Obligations Not Reduced.
The obligations of each Guarantor hereunder shall not be satisfied,
reduced or discharged solely by the payment of such principal, premium, if any,
interest, fees and other monies or amounts as may at any time prior to discharge
of this Indenture pursuant to Article Eight be or become owing or payable under
or by virtue of or otherwise in connection with the Notes or this Indenture.
SECTION 10.11. Note Guarantee Obligations Reinstated.
The obligations of each Guarantor hereunder shall continue to be
effective or shall be reinstated, as the case may be, if at any time any payment
which would otherwise have reduced the obligations of any Guarantor hereunder
(whether such payment shall have been made by or on behalf of the Company or by
or on behalf of a Guarantor) is rescinded or reclaimed from any of the Holders
upon the insolvency, bankruptcy, liquidation or reorganization of the Company or
any Guarantor or otherwise, all as though such payment had not been made. If
demand for, or acceleration of the time for, payment by the Company or any other
Guarantor is stayed upon the insolvency, bankruptcy, liquidation or
reorganization of the Company or such Guarantor, all such Indebtedness otherwise
subject to demand for payment or acceleration shall nonetheless be payable by
each Guarantor as provided herein.
SECTION 10.12. Note Guarantee Obligations Not Affected.
To the fullest extent permitted by law, the obligations of each
Guarantor hereunder shall, subject to Section 10.04, not be affected, impaired
or diminished in any way by any act, omission, matter or thing whatsoever,
occurring before, upon or after any demand for payment hereunder (and whether or
not known or consented to by any Guarantor or any of the Holders) which, but for
this provision, might constitute a whole or partial defense to a claim against
any Guarantor hereunder or might operate to release or otherwise exonerate any
Guarantor from any of its obligations hereunder or otherwise affect such
obligations, whether occasioned by default of any of the Holders or otherwise,
including, without limitation:
(a) any limitation of status or power, disability, incapacity or other
circumstance relating to the Company or any other Person, including any
insolvency,
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bankruptcy, liquidation, reorganization, readjustment, composition,
dissolution, winding-up or other proceeding involving or affecting the
Company or any other Person;
(b) any irregularity, defect, unenforceability or invalidity in
respect of any indebtedness or other obligation of the Company or any other
Person under this Indenture, the Notes or any other document or instrument;
(c) any failure of the Company or any other Guarantor, whether or not
without fault on its part, to perform or comply with any of the provisions
of this Indenture, the Notes or any Note Guarantee, or to give notice
thereof to a Guarantor;
(d) the taking or enforcing or exercising or the refusal or neglect to
take or enforce or exercise any right or remedy from or against the Company
or any other Person or their respective assets or the release or discharge
of any such right or remedy;
(e) the granting of time, renewals, extensions, compromises,
concessions, waivers, releases, discharges and other indulgences to the
Company or any other Person;
(f) any change in the time, manner or place of payment of, or in any
other term of, any of the Notes, or any other amendment, variation,
supplement, replacement or waiver of, or any consent to departure from, any
of the Notes or this Indenture, including, without limitation, any increase
or decrease in the principal amount of or premium, if any, or interest or
Additional Interest on any of the Notes;
(g) any change in the ownership, control, name, objects, businesses,
assets, capital structure or constitution of the Company or a Guarantor;
(h) any merger or amalgamation of the Company or a Guarantor with any
Person or Persons;
(i) the occurrence of any change in the laws, rules, regulations or
ordinances of any jurisdiction by any present or future action of any
governmental authority or court amending, varying, reducing or otherwise
affecting, or purporting to amend, vary, reduce or otherwise affect, any of
the Guarantee Obligations or the obligations of a Guarantor under its Note
Guarantee; and
(j) any other circumstance, including release of a Guarantor pursuant
to Section 10.04 (other than by complete, irrevocable payment) that might
otherwise constitute a legal or equitable discharge or defense of the
Company under this Indenture or the Notes or of a Guarantor in respect of
its Note Guarantee hereunder.
SECTION 10.13. Waiver.
Without in any way limiting the provisions of Section 10.01, each
Guarantor hereby waives notice of acceptance hereof, notice of any liability of
any Guarantor hereunder, notice or proof of reliance by the Holders upon the
obligations of any Guarantor hereunder, and diligence, presentment, demand for
payment on the Company, protest, notice of dishonor or non-
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payment of any of the Guarantee Obligations, or other notice or formalities to
the Company or any Guarantor of any kind whatsoever.
SECTION 10.14. No Obligation To Take Action Against the Company.
Neither the Trustee nor any other Person shall have any obligation to
enforce or exhaust any rights or remedies against the Company or any other
Person or any property of the Company or any other Person before the Trustee is
entitled to demand payment and performance by any or all Guarantors of their
liabilities and obligations under their Note Guarantees or under this Indenture.
SECTION 10.15. Dealing with the Company and Others.
The Holders, without releasing, discharging, limiting or otherwise
affecting in whole or in part the obligations and liabilities of any Guarantor
hereunder and without the consent of or notice to any Guarantor, may
(a) grant time, renewals, extensions, compromises, concessions,
waivers, releases, discharges and other indulgences to the Company or any
other Person;
(b) take or abstain from taking security or collateral from the
Company or from perfecting security or collateral of the Company;
(c) release, discharge, compromise, realize, enforce or otherwise deal
with or do any act or thing in respect of (with or without consideration)
any and all collateral, mortgages or other security given by the Company or
any third party with respect to the obligations or matters contemplated by
this Indenture or the Notes;
(d) accept compromises or arrangements from the Company;
(e) apply all monies at any time received from the Company or from any
security upon such part of the Guarantee Obligations as the Holders may see
fit or change any such application in whole or in part from time to time as
the Holders may see fit; and
(f) otherwise deal with, or waive or modify their right to deal with,
the Company and all other Persons and any security as the Holders or the
Trustee may see fit.
SECTION 10.16. Default and Enforcement.
If any Guarantor fails to pay in accordance with Section 10.06 hereof,
the Trustee may proceed in its name as trustee hereunder in the enforcement of
the Note Guarantee of any such Guarantor and such Guarantor's obligations
thereunder and hereunder by any remedy provided by law, whether by legal
proceedings or otherwise, and to recover from such Guarantor the obligations.
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SECTION 10.17. Acknowledgment.
Each Guarantor hereby acknowledges communication of the terms of this
Indenture, the Notes and the Note Guarantees consents to and approves of the
same.
SECTION 10.18. Costs and Expenses.
Each Guarantor shall pay on demand by the Trustee any and all
reasonable costs, fees and expenses (including, without limitation, reasonable
legal fees on a solicitor and client basis) incurred by the Trustee, its agents,
advisors and counsel or any of the Holders in enforcing any of their rights
under any Note Guarantee.
SECTION 10.19. No Merger or Waiver; Cumulative Remedies.
No failure to exercise and no delay in exercising, on the part of the
Trustee or the Holders, any right, remedy, power or privilege hereunder or under
this Indenture or the Notes, shall operate as a waiver thereof; nor shall any
single or partial exercise of any right, remedy, power or privilege hereunder or
under this Indenture or the Notes preclude any other or further exercise thereof
or the exercise of any other right, remedy, power or privilege. The rights,
remedies, powers and privileges in the Note Guarantee and under this Indenture,
the Notes and any other document or instrument between a Guarantor and/or the
Company and the Trustee are cumulative and not exclusive of any rights,
remedies, powers and privilege provided by law.
SECTION 10.20. Survival of Note Guarantee Obligations.
Without prejudice to the survival of any of the other obligations of
each Guarantor hereunder, the obligations of each Guarantor under Section 10.01
shall survive the payment in full of the Guarantee Obligations and shall be
enforceable against such Guarantor, to the fullest extent permitted by law,
without regard to and without giving effect to any defense, right of offset or
counterclaim available to or which may be asserted by the Company or any
Guarantor.
SECTION 10.21. Note Guarantee in Addition to Other Guarantee Obligations.
The obligations of each Guarantor under its Note Guarantee and this
Indenture are in addition to and not in substitution for any other obligations
to the Trustee or to any of the Holders in relation to this Indenture or the
Notes and any guarantees or security at any time held by or for the benefit of
any of them.
SECTION 10.22. Severability.
Any provision of this Article Ten which is prohibited or unenforceable
in any jurisdiction shall not invalidate the remaining provisions and any such
prohibition or unenforceability in any jurisdiction shall not invalidate or
render unenforceable such provision in any other jurisdiction unless its removal
would substantially defeat the basic intent, spirit and purpose of this
Indenture and this Article Ten.
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SECTION 10.23. Successors and Assigns.
Subject to the provisions herein relating to the release of Note
Guarantees, each Note Guarantee shall be binding upon and inure to the benefit
of each Guarantor and the Trustee and the other Holders and their respective
successors and permitted assigns, except that no Guarantor may assign any of its
obligations hereunder or thereunder.
ARTICLE ELEVEN
MISCELLANEOUS
SECTION 11.01. Trust Indenture Act Controls.
If any provision of this Indenture limits, qualifies or conflicts with
another provision which is required or deemed to be included in this Indenture
by the Trust Indenture Act, such required or deemed provision of the Trust
Indenture Act shall control.
SECTION 11.02. Notices.
Any notices or other communications required or permitted hereunder
shall be in writing, and shall be sufficiently given if made by hand delivery,
by nationally recognized overnight courier service, by telecopier or registered
or certified mail, postage prepaid, return receipt requested, addressed as
follows:
if to the Company or a Guarantor:
c/o Navios Maritime Holdings Inc.
ββ ββββ βββββββ ββββββ
βββββββ βββ ββ, ββββββ
Attn: Secretary
Telephone: βββ-βββ-βββββββ
with a copy to:
Fried, Frank, Harris, βββββββ & ββββββββ LLP
βββ βββ ββββ βββββ
βββ ββββ, ββ βββββ
Attn: ββββββ βββββββ
Telephone: (βββ) βββ-ββββ
Facsimile: (βββ) βββ-ββββ
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if to the Trustee:
βββββ Fargo Bank, N.A.
Corporate Trust Services
Sixth and Marquette
MAC βββββ-βββ
βββββββββββ, ββ βββββ
Attn: Corporate Trust Services
Telephone: βββ-βββ-ββββ
Facsimile: βββ-βββ-ββββ
Each of the Company, each Guarantor and the Trustee by written notice
to each other such Person may designate additional or different addresses for
notices to such Person. Any notice or communication to the Company and the
Trustee, shall be deemed to have been given or made as of the date so delivered
if personally delivered; when replied to; when receipt is acknowledged, if
telecopied; five (5) calendar days after mailing if sent by registered or
certified mail, postage prepaid (except that a notice of change of address shall
not be deemed to have been given until actually received by the addressee); and
next Business Day if by nationally recognized overnight courier service.
Any notice or communication mailed to a Holder shall be mailed to him
by first class mail or other equivalent means at his address as it appears on
the registration books of the Registrar and shall be sufficiently given to him
if so mailed within the time prescribed.
Failure to mail a notice or communication to a Holder or any defect in
it shall not affect its sufficiency with respect to other Holders. If a notice
or communication is mailed in the manner provided above, it is duly given,
whether or not the addressee receives it.
Where this Indenture provides for notice in any manner, such notice
may be waived in writing by the Person entitled to receive such notice, either
before or after the event, and such waiver shall be the equivalent of such
notice. Waivers of notice by Holders shall be filed with the Trustee, but such
filing shall not be a condition precedent to the validity of any action taken in
reliance on such waiver.
In case by reason of the suspension of regular mail service or by
reason of any other cause it shall be impracticable to give such notice by mail,
then such notification as shall be made with the approval of the Trustee shall
constitute a sufficient notification for every purpose hereunder.
SECTION 11.03. Communications by Holders with Other Holders.
Holders may communicate pursuant to Trust Indenture Act section 312(b)
with other Holders with respect to their rights under this Indenture, the Notes
or the Note Guarantees. The Company, the Trustee, the Registrar and any other
Person shall have the protection of Trust Indenture Act section 312(c).
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SECTION 11.04. Certificate and Opinion as to Conditions Precedent.
Upon any request or application by the Company to the Trustee to take
any action under this Indenture, the Company shall furnish to the Trustee
(unless otherwise agreed by the Trustee):
(1) an Officers' Certificate, in form and substance reasonably
satisfactory to the Trustee, stating that, in the opinion of the signers,
all conditions precedent to be performed or effected by the Company, if
any, provided for in this Indenture relating to the proposed action have
been complied with; and
(2) an Opinion of Counsel stating that, in the opinion of such counsel
(who may rely upon Officers' Certificates as to matters of fact), all such
conditions precedent have been satisfied; provided, however, that such
opinion shall not be required in connection with the initial issuance of
the Notes hereunder.
SECTION 11.05. Statements Required in Certificate or Opinion.
Each certificate or opinion with respect to compliance with a
condition or covenant provided for in this Indenture, other than the Officers'
Certificate required by Section 4.06, shall include, to the extent required by
the Trust Indenture Act or requested by the Trustee:
(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 or satisfied; and
(4) a statement as to whether or not, in the opinion of each such
Person, such condition or covenant has been satisfied or complied with;
provided, however, that with respect to matters of fact, an Opinion of
Counsel may rely on an Officers' Certificate or certificates of public
officials.
SECTION 11.06. Rules by Paying Agent or Registrar.
The Paying Agent or Registrar may make reasonable rules and set
reasonable requirements for their functions.
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SECTION 11.07. Legal Holidays.
If a payment date is not a Business Day, payment may be made on the
next succeeding day that is a Business Day without the accrual of additional
interest in the intervening period.
SECTION 11.08. GOVERNING LAW; WAIVER OF JURY TRIAL; SUBMISSION TO JURISDICTION.
THIS INDENTURE, THE NOTES AND THE NOTE GUARANTEES SHALL BE GOVERNED BY
AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, WITHOUT
GIVING EFFECT TO CONFLICTS OF LAW PRINCIPLES TO THE EXTENT THAT THE APPLICATION
OF THE LAWS OF ANOTHER JURISDICTION WOULD BE REQUIRED THEREBY. EACH OF THE
COMPANY AND THE TRUSTEE HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT
PERMITTED BY APPLICABLE LAW, ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL
PROCEEDING ARISING OUT OF OR RELATING TO THIS INDENTURE, THE NOTES OR THE
TRANSACTIONS CONTEMPLATED HEREBY.
Any legal suit, action or proceeding arising out of or based upon this
Indenture, the Notes, the Note Guarantees or the transactions contemplated
hereby may be instituted in the federal courts of the United States of America
located in the City of New York or the courts of the State of New York in each
case located in the City of New York (collectively, the "SPECIFIED COURTS"), and
each party irrevocably submits to the non-exclusive jurisdiction of such courts
in any such suit, action or proceeding. Service of any process, summons, notice
or document by mail (to the extent allowed under any applicable statute or rule
of court) to such party's address set forth in Section 11.02 shall be effective
service of process for any suit, action or other proceeding brought in any such
court. The parties irrevocably and unconditionally waive any objection to the
laying of venue of any suit, action or other proceeding in the Specified Courts
and irrevocably and unconditionally waive and agree not to plead or claim in any
such court that any suit, action or other proceeding has been brought in an
inconvenient forum.
SECTION 11.09. No Adverse Interpretation of Other Agreements.
This Indenture may not be used to interpret another indenture, loan or
debt agreement of any of the Company or any of its Subsidiaries. Any such
indenture, loan or debt agreement may not be used to interpret this Indenture.
SECTION 11.10. No Personal Liability of Directors, Officers, Employees and
Stockholders.
No past, future or present director, Officer, employee, incorporator,
member, manager, agent or shareholder of the Company or any Guarantor, as such,
shall have any liability for any obligations of the Company or any Guarantors
under the Notes, this Indenture, the Note Guarantees or for any claim based on,
in respect of, or by reason of, such obligations or their creation. Each Holder
by accepting a Note waives and releases all such liability to the fullest
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extent permitted by law. Such waiver and release are part of the consideration
for issuance of the Notes and the Note Guarantees.
SECTION 11.11. Successors.
All agreements of the Company and the Guarantors in this Indenture,
the Notes and the Note Guarantees shall bind their respective successors. All
agreements of the Trustee in this Indenture shall bind its successor.
SECTION 11.12. Duplicate Originals.
All parties may sign any number of copies of this Indenture. Each
signed copy or counterpart shall be an original, but all of them together shall
represent the same agreement.
SECTION 11.13. Severability.
To the extent permitted by applicable law, in case any one or more of
the provisions in this Indenture, in the Notes or in the Note Guarantees shall
be held invalid, illegal or unenforceable, in any respect for any reason, the
validity, legality and enforceability of any such provision in every other
respect and of the remaining provisions shall not in any way be affected or
impaired thereby, it being intended that all of the provisions hereof shall be
enforceable to the full extent permitted by law.
SECTION 11.14. Force Majeure.
In no event shall the Trustee be responsible or liable for any failure
or delay in the performance of its obligations hereunder arising out of or
caused by, directly or indirectly, forces beyond its control, including, without
limitation, strikes, work stoppages, accidents, acts of war or terrorism, civil
or military disturbances, nuclear or natural catastrophes or acts of God, and
interruptions, loss or malfunctions of utilities, communications or computer
(software and hardware) services, it being understood that the Trustee shall use
reasonable efforts which are consistent with accepted practices in the banking
industry to resume performance as soon as practicable under the circumstances.
SECTION 11.15. Agent for Service; Submission to Jurisdiction; Waiver of
Immunities.
(a) The Company and each Guarantor hereby irrevocably consent and
agree to the service of any and all legal process, summons, notices and
documents in any such action, suit or proceeding brought against them with
respect to their obligations, liabilities or any other matter arising out of or
in connection with this Indenture, by serving a copy thereof upon any employee
of any of the Company or any Guarantor (in such capacity, the "Company Process
Agent") at any business location that the Company or any Guarantor may maintain
from time to time in the United States including, without limitation, at the
offices of Navios Corporation located at ββ ββββββββ ββββββ, βββββ βββ, βββββ
βββββββ, βββββββββββ βββββ.
(b) If at any time the Company or any Guarantor has or maintains a
business location in the State of New York (such Person, the "New York Presence
Obligor"), then the
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Company and the Guarantors shall, within 30 days after such location is opened,
is acquired or otherwise exists, irrevocably designate, appoint and empower the
New York Presence Obligor as their designee, appointee and agent to receive,
accept and acknowledge for and on their behalf service of any and all legal
process, summons, notices and documents that may be served in any action, suit
or proceeding brought against them in any United States or state court located
in the County of New York with respect to their obligations, liabilities or any
other matter arising out of or in connection with this Agreement and that may be
made on such designee, appointee and agent in accordance with legal procedures
prescribed for such courts (the "New York Process Agent"). Promptly upon making
such appointment, the Company and the Guarantors shall promptly deliver notice
thereof (which shall attach a copy of the operative appointing documentation) to
the Trustee.
(c) If at any time either (i) neither the Company nor any Guarantor
maintains a bona fide business location in the State of Connecticut or the State
of New York or (ii) a New York Presence Obligor exists but the Company or any
Guarantor fails to satisfy its obligations under the foregoing paragraph (b),
then the Company and the Guarantors shall promptly (and in any event within 10
days) irrevocably designate, appoint and empower CT Corporation System, with
offices currently at βββ ββββββ ββββββ, βββ ββββ, βββ ββββ βββββ (or such other
third party corporate service provider of national standing as may be reasonably
acceptable to the Representatives), as their designee, appointee and agent to
receive, accept and acknowledge for and on their behalf service of any and all
legal process, summons, notices and documents that may be served in any action,
suit or proceeding brought against them in any such United States or state court
located in the County of New York with respect to their obligations, liabilities
or any other matter arising out of or in connection with this Indenture and that
may be made on such designee, appointee and agent in accordance with legal
procedures prescribed for such courts (the "Third Party Process Agent"; each of
the Company Process Agent, the New York Process Agent or the Third Party Process
Agent, a "Process Agent") and pay all fees and expenses required by the Third
Party Process Agent in connection therewith. If for any reason such Third Party
Process Agent hereunder shall cease to be available to act as such, each of the
Company and the Guarantors agrees to designate a new Third Party Process Agent
in the County of New York on the terms and for the purposes of this Section
11.15 satisfactory to the Representatives.
(d) Each of the Company and the Guarantors further hereby irrevocably
consents and agrees to the service of any and all legal process, summons,
notices and documents in any such action, suit or proceeding against them by (i)
serving a copy thereof upon any of the relevant Process Agents specified in
clauses (a) through (c) above, or (ii) or by mailing copies thereof by
registered or certified air mail, postage prepaid, to the Company, at its
address specified in or designated pursuant to this Indenture. Each of the
Company and the Guarantors agrees that the failure of any Process Agent, to give
any notice of such service to it shall not impair or affect in any way the
validity of such service or any judgment rendered in any action or proceeding
based thereon.
(e) Each of the Company and each Guarantor agree that a final judgment
in any such suit, action or proceeding shall be conclusive and may be enforced
in other jurisdictions by suit on the judgment or in any other manner provided
by law. Nothing herein shall in any way be deemed to limit the ability of the
Trustee or any Holder to serve any such legal process,
-109-
summons, notices and documents in any other manner permitted by applicable law
or to obtain jurisdiction over the Company or the Guarantors or bring actions,
suits or proceedings against them in such other jurisdictions, and in such
manner, as may be permitted by applicable law.
(f) The provisions of this Section 11.15 shall survive any termination
of this Indenture, in whole or in part.
(g) To the extent that the Company or any Guarantor has or hereafter
may acquire any immunity from jurisdiction of any court or from any legal
process with respect to itself or its property, it hereby irrevocably waives (to
the extent permitted by law) such immunity in respect of its obligations under
each of this Indenture, the Notes and the Note Guarantees (and the Notations of
Guarantee). In addition, the Company and each Guarantor irrevocably waives and
agrees not to assert, by way of motion, as a defense, or otherwise in any such
suit, action or proceeding, any claim that it is not personally subject to the
jurisdiction of the above-mentioned courts for any reason whatsoever, that such
suit, action or proceeding is brought in an inconvenient forum or that the venue
for such suit is improper, or that this Indenture, the Notes or the Note
Guarantees (and the Notations of Guarantee) or the subject matter hereof or
thereof may not be enforced in such courts.
SECTION 11.16. Currency of Account; Conversion of Currency; Foreign Exchange
Restrictions.
(a) U.S. dollars are the sole currency of account and payment for all
sums payable by the Company and the Guarantors under or in connection with the
Notes, the Note Guarantees or this Indenture, including damages related thereto.
Any amount received or recovered in a currency other than U.S. dollars by a
Holder (whether as a result of, or of the enforcement of, a judgment or order of
a court of any jurisdiction, in the winding-up or dissolution of the Company or
otherwise) in respect of any sum expressed to be due to it from the Company
shall only constitute a discharge to the Company to the extent of the U.S.
dollar amount which the recipient is able to purchase with the amount so
received or recovered in that other currency on the date of that receipt or
recovery (or, if it is not practicable to make that purchase on that date, on
the first date on which it is practicable to do so). If that U.S. dollar amount
is less than the U.S. dollar amount expressed to be due to the recipient under
the Notes, the Company shall indemnify it against any loss sustained by it as a
result as set forth in Section 11.16(b). In any event, the Company and the
Guarantors shall indemnify the recipient against the cost of making any such
purchase. For the purposes of this Section 11.16, it shall be sufficient for the
Holder to certify in a satisfactory manner (indicating sources of information
used) that it would have suffered a loss had an actual purchase of U.S. dollars
been made with the amount so received in that other currency on the date of
receipt or recovery (or, if a purchase of U.S. dollars on such date had not been
practicable, on the first date on which it would have been practicable, it being
required that the need for a change of date be certified in the manner mentioned
above). The indemnities set forth in this Section 11.16 constitute separate and
independent obligations from other obligations of the Company and the
Guarantors, shall give rise to a separate and independent cause of action, shall
apply irrespective of any indulgence granted by any Holder and shall continue in
full force and effect despite any other judgment, order, claim or proof for a
liquidated amount in respect of any sum due under the Notes.
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(b) The Company and the Guarantors, jointly and severally, covenant
and agree that the following provisions shall apply to conversion of currency in
the case of the Notes, the Note Guarantees and this Indenture:
(1) (A) If for the purpose of obtaining judgment in, or enforcing
the judgment of, any court in any country, it becomes
necessary to convert into a currency (the "JUDGMENT
CURRENCY") an amount due in any other currency (the "BASE
CURRENCY"), then the conversion shall be made at the rate of
exchange prevailing on the Business Day before the day on
which the judgment is given or the order of enforcement is
made, as the case may be (unless a court shall otherwise
determine).
(B) If there is a change in the rate of exchange prevailing
between the Business Day before the day on which the
judgment is given or an order of enforcement is made, as the
case may be (or such other date as a court shall determine),
and the date of receipt of the amount due, the Company and
the Guarantors shall pay such additional (or, as the case
may be, such lesser) amount, if any, as may be necessary so
that the amount paid in the Judgment Currency when converted
at the rate of exchange prevailing on the date of receipt
shall produce the amount in the Base Currency originally
due.
(2) In the event of the winding-up of the Company or any Guarantor at
any time while any amount or damages owing under the Notes, the Note
Guarantees and this Indenture, or any judgment or order rendered in respect
thereof, shall remain outstanding, the Company and the Guarantors shall
indemnify and hold the Holders and the Trustee harmless against any
deficiency arising or resulting from any variation in rates of exchange
between (i) the date as of which the U.S. Dollar Equivalent of the amount
due or contingently due under the Notes, the Note Guarantees and this
Indenture (other than under this subsection (b)(2)) is calculated for the
purposes of such winding-up and (ii) the final date for the filing of
proofs of claim in such winding-up. For the purpose of this subsection
(b)(2), the final date for the filing of proofs of claim in the winding-up
of the Company or any Guarantor shall be the date fixed by the liquidator
or otherwise in accordance with the relevant provisions of applicable law
as being the latest practicable date as at which liabilities of the Company
or such Guarantor may be ascertained for such winding-up prior to payment
by the liquidator or otherwise in respect thereto.
(c) The obligations contained in subsections (a), (b)(1)(B) and (b)(2)
of this Section 11.16 shall constitute separate and independent obligations from
the other obligations of the Company and the Guarantors under this Indenture,
shall give rise to separate and independent causes of action against the Company
and the Guarantors, shall apply irrespective of any waiver or extension granted
by any Holder or the Trustee or either of them from time to time and shall
continue in full force and effect notwithstanding any judgment or order or the
filing of any proof of claim in the winding-up of the Company or any Guarantor
for a liquidated sum in respect of amounts due hereunder (other than under
subsection (b)(2) above) or under any such judgment or
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order. Any such deficiency as aforesaid shall be deemed to constitute a loss
suffered by the Holders or the Trustee, as the case may be, and no proof or
evidence of any actual loss shall be required by the Company or any Guarantor or
the liquidator or otherwise or any of them. In the case of subsection (b)(2)
above, the amount of such deficiency shall not be deemed to be reduced by any
variation in rates of exchange occurring between the said final date and the
date of any liquidating distribution.
(d) The term "RATE OF EXCHANGE" shall mean the rate of exchange quoted
by Reuters at 10:00 a.m. (New York time) for spot purchases of the Base Currency
with the Judgment Currency other than the Base Currency referred to in
subsections (b)(1) and (b)(2) above and includes any premiums and costs of
exchange payable.
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SIGNATURES
IN WITNESS WHEREOF, the parties hereto have caused this Indenture to
be duly executed all as of the date first written above.
NAVIOS MARITIME HOLDINGS INC.,
as Company
By:
------------------------------------
Name:
Title:
NAVIOS CORPORATION,
as a Guarantor
By:
------------------------------------
Name:
Title:
ANEMOS MARITIME HOLDINGS INC.,
as a Guarantor
By:
------------------------------------
Name:
Title:
NAVIOS SHIPMANAGEMENT INC.,
as a Guarantor
By:
------------------------------------
Name:
Title:
AEGEAN SHIPPING CORPORATION,
as a Guarantor
By:
------------------------------------
Name:
Title:
S-1
LIBRA SHIPPING ENTERPRISES CORPORATION,
as a Guarantor
By:
------------------------------------
Name:
Title:
ALEGRIA SHIPPING CORPORATION,
as a Guarantor
By:
------------------------------------
Name:
Title:
FELICITY SHIPPING CORPORATION,
as a Guarantor
By:
------------------------------------
Name:
Title:
GEMINI SHIPPING CORPORATION,
as a Guarantor
By:
------------------------------------
Name:
Title:
ARC SHIPPING CORPORATION,
as a Guarantor
By:
------------------------------------
Name:
Title:
S-2
GALAXY SHIPPING CORPORATION,
as a Guarantor
By:
------------------------------------
Name:
Title:
MAGELLAN SHIPPING CORPORATION,
as a Guarantor
By:
------------------------------------
Name:
Title:
IONIAN SHIPPING CORPORATION,
as a Guarantor
By:
------------------------------------
Name:
Title:
APOLLON SHIPPING CORPORATION,
as a Guarantor
By:
------------------------------------
Name:
Title:
HERAKLES SHIPPING CORPORATION,
as a Guarantor
By:
------------------------------------
Name:
Title:
S-3
ACHILLES SHIPPING CORPORATION,
as a Guarantor
By:
------------------------------------
Name:
Title:
KYPROS SHIPPING CORPORATION,
as a Guarantor
By:
------------------------------------
Name:
Title:
HIOS SHIPPING CORPORATION,
as a Guarantor
By:
------------------------------------
Name:
Title:
MERIDIAN SHIPPING ENTERPRISES INC.,
as a Guarantor
By:
------------------------------------
Name:
Title:
MERCATOR SHIPPING CORPORATION,
as a Guarantor
By:
------------------------------------
Name:
Title:
S-4
HORIZON SHIPPING ENTERPRISES
CORPORATION, as a Guarantor
By:
------------------------------------
Name:
Title:
HYPERION ENTERPRISES INC.,
as a Guarantor
By:
------------------------------------
Name:
Title:
STAR MARITIME ENTERPRISES CORPORATION,
as a Guarantor
By:
------------------------------------
Name:
Title:
NAVIMAX CORPORATION,
as a Guarantor
By:
------------------------------------
Name:
Title:
NAVIOS HANDYBULK INC.,
as a Guarantor
By:
------------------------------------
Name:
Title:
S-5
NAVIOS INTERNATIONAL INC.,
as a Guarantor
By:
------------------------------------
Name:
Title:
HESTIA SHIPPING LTD.,
as a Guarantor
By:
------------------------------------
Name:
Title:
βββββ FARGO BANK, N.A.,
as Trustee
By:
------------------------------------
Name:
Title:
S-6
EXHIBIT A
[INSERT THE GLOBAL NOTE LEGEND, IF APPLICABLE PURSUANT TO THE PROVISIONS OF THE
INDENTURE]
[INSERT THE PRIVATE PLACEMENT LEGEND, IF APPLICABLE PURSUANT TO THE PROVISIONS
OF THE INDENTURE]
A-1
NAVIOS MARITIME HOLDINGS INC.
9 1/2% Senior Notes 2014
CUSIP No.
ISIN No.
No. $________
NAVIOS MARITIME HOLDINGS INC., a ββββββββ Islands corporation, as
issuer, (the "COMPANY"), for value received promise to pay to ____________ or
its registered assigns, the principal sum of U.S. dollars [or such
other amount as is provided in a schedule attached hereto](1) on December 15,
2014.
Interest Payment Dates: June 15 and December 15, commencing.
Record Dates: June 1 and December 1.
Reference is made to the further provisions of this Note contained
herein, which shall for all purposes have the same effect as if set forth at
this place.
----------
(1) This language should be included only if the Note is issued in global form.
A-2
IN WITNESS WHEREOF, the Company has caused this Note to be signed
manually or by facsimile by its duly authorized officers.
Dated:
NAVIOS MARITIME HOLDINGS INC.,
as Company
By:
------------------------------------
Name:
Title:
A-3
FORM OF TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the 9 1/2% Senior Notes due 2014 described in the
within-mentioned Indenture.
Dated:
βββββ FARGO BANK, N.A.,
as Trustee
By:
------------------------------------
Authorized Signatory
A-4
(Reverse of Note)
9 1/2% Senior Notes due 2014
Capitalized terms used herein shall have the meanings assigned to them
in the Indenture referred to below unless otherwise indicated.
SECTION 1. Interest. Navios Maritime Holdings Inc., a ββββββββ Islands
corporation, as issuer, (the "COMPANY"), promises to pay interest (including
Additional Interest, if applicable) on the principal amount of this Note at 9
1/2% per annum from _______, until maturity. The Company shall pay interest
semi-annually in arrears on June 15 and December 15 of each year, or if any such
day is not a Business Day, on the next succeeding Business Day (each an
"INTEREST PAYMENT DATE"), commencing ______. Interest on the Notes shall accrue
from the most recent date to which interest has been paid or, if no interest has
been paid, from the date of original issuance. The Company shall pay interest
(including post-petition interest in any proceeding under any Bankruptcy Law) on
overdue principal and premium, if any, from time to time on demand to the extent
lawful at the interest rate applicable to the Notes; it shall pay interest
(including post-petition interest in any proceeding under any Bankruptcy Law) on
overdue installments of interest and Additional Interest, if any (in each case
without regard to any applicable grace periods) from time to time on demand at
the same rate to the extent lawful. Interest shall be computed on the basis of a
360-day year of twelve 30-day months.
SECTION 2. Method of Payment. The Company shall pay interest and
Additional Interest, if any, on the Notes to the Persons who are registered
Holders at the close of business on the June 1 or December 1 next preceding the
Interest Payment Date, even if such Notes are canceled after such Record Date
and on or before such Interest Payment Date, except as provided in Section 2.12
of the Indenture with respect to defaulted interest. The Notes shall be issued
in denominations of $1,000 and integral multiples of $1,000 in excess thereof.
The Company shall pay principal, premium, if any, and interest on the Notes 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 ("U.S. LEGAL TENDER").
Principal, premium, if any, interest and Additional Interest, if any, on the
Notes shall be payable at the office or agency of the Company maintained in the
United States for such purpose except that, at the option of the Company, the
payment of interest and Additional Interest, if any, may be made by check mailed
to the Holders at their respective addresses set forth in the register of
Holders; provided that for Holders owning at least $100,000 aggregate principal
amount of Notes that have given wire transfer instructions to the Company at
least ten (10) Business Days prior to the applicable payment date, the Company
shall make all payments of principal, interest, premium and Additional Interest,
if any, by wire transfer of immediately available funds to the accounts
specified by the Holders thereof. Until otherwise designated by the Company, the
Company's office or agency in the United States shall be the office of the
Trustee maintained for such purpose.
SECTION 3. Paying Agent and Registrar. Initially, βββββ Fargo Bank,
N.A., the Trustee under the Indenture, shall act as Paying Agent and Registrar.
The Company may change any Paying Agent or Registrar without notice to any
Holder. Except as provided in the Indenture, the Company or any of its
Subsidiaries may act in any such capacity.
A-5
SECTION 4. Indenture. The Company issued the Notes under an Indenture
dated as of December 18, 2006 (the "INDENTURE") by and among the Company, the
Guarantors (as defined therein) and the Trustee. The terms of the Notes include
those stated in the Indenture and those made part of the Indenture by reference
to the Trust Indenture Act of 1939, as amended (15 U.S. Code Sections
77aaa-77bbbb) (the "TRUST INDENTURE ACT"). The Notes are subject to all such
terms, and Holders are referred to the Indenture and the Trust Indenture 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.
SECTION 5. Optional Redemption.
(a) On or after December 15, 2010, the Company may redeem all or a
part of the Notes upon not less than 30 nor more than 60 days' notice, at the
redemption prices (expressed as percentages of principal amount) set forth below
plus accrued and unpaid interest and Additional Interest, if any, on the Notes
redeemed, to the applicable Redemption Date, if redeemed during the twelve-month
period beginning on December 15 of the years indicated below, subject to the
rights of Holders on the relevant Record Date to receive interest on the
relevant Interest Payment Date:
YEAR PERCENTAGE
---- ----------
2010............................... 104.750%
2011............................... 102.375%
2012 and thereafter................ 100.000%
(b) Prior to December 15, 2010, the Company may, at its option, redeem
all or a part of the Notes upon not less than 30 nor more than 60 days' notice
at a redemption price equal to the sum of:
(i) 100% of the principal amount of the Notes to be redeemed,
plus
(ii) the Applicable Premium, plus
accrued and unpaid interest and Additional Interest, if any, on the Notes
redeemed, to the applicable Redemption Date, subject to the right of Holders on
the relevant Record Date to receive interest due on the relevant interest
payment date (a "MAKE-WHOLE REDEMPTION").
SECTION 6. Redemption With Proceeds of Equity Offerings. At any time
prior to December 15, 2009, the Company may on any one or more occasions redeem
up to 35% of the aggregate principal amount of Notes issued under the Indenture
(including any Additional Notes) at a Redemption Price of 109.5% of the
principal amount, plus accrued and unpaid interest and Additional Interest, if
any, to the Redemption Date, with the net cash proceeds of one or more Equity
Offerings; provided that:
(1) at least 65% of the aggregate principal amount of Notes issued
under the Indenture (excluding Notes held by the Company and its
Subsidiaries) remains outstanding immediately after the occurrence of such
redemption; and
A-6
(2) such redemption occurs not more than 180 days after the date of
the closing of the relevant such Equity Offering.
SECTION 7. Redemption for Changes in Withholding Tax. The Company may,
at its option, redeem all, but not less than all, of the Notes then outstanding
at a redemption price equal to 100% of the principal amount of the Notes, plus
accrued and unpaid interest and Additional Interest, if any, thereon to the
Redemption Date, if the Company has become or would become obligated to pay, on
the next date on which any amount would be payable with respect to such Notes,
any Additional Amounts as a result of change in law (including any regulations
promulgated thereunder) or in the interpretation or administration of law, if
such change is announced and becomes effective on or after the Issue Date and
the Company determines in good faith that such obligation cannot be avoided
(including, without limitation, by changing the jurisdiction from which or
through which payment is made) by the use of reasonable measures (not requiring
material cost) available to the Company and the Guarantor.
Notice of any such redemption must be given within 60 days of the
earlier of the announcement and the effectiveness of any such amendment or
change referred to in the preceding paragraph. At the time such notice of
redemption is given, such obligation to pay such Additional Amounts must remain
in effect. Immediately prior to the mailing of any notice of redemption
described above, the Company shall deliver to the Trustee (i) an Officers'
Certificate stating that the Company is entitled to elect to effect such
redemption and setting forth a statement of facts showing that the conditions
precedent to the right of the Company so to elect to redeem have occurred and
(ii) if requested by the Trustee, an Opinion of Counsel qualified under the laws
of the relevant jurisdiction to the effect that the Company or the applicable
Guarantor or such successor Person, as the case may be, has or will become
obligated to pay such Additional Amounts as a result of such amendment or
change.
SECTION 8. Selection and Notice of Redemption. Notes in denominations
larger than $1,000 may be redeemed in part; provided that Notes shall be
redeemed only in integral multiples of $1,000 unless all Notes held by a Holder
are to be redeemed. Notice of redemption shall be mailed by first class mail 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, except that
redemption notices may be mailed more than 60 days prior to a Redemption Date if
the notice is issued in connection with a defeasance of the Notes or a
satisfaction and discharge of the Indenture. If any Note is to be redeemed in
part only, the notice of redemption that relates to such Note shall state the
portion of the principal amount thereof to be redeemed. A new Note in principal
amount equal to the unredeemed portion of the original Note shall be issued in
the name of the Holder upon cancellation of the original Note. Notes called for
redemption become due on the date fixed for redemption. On and after the
Redemption Date, interest and Additional Interest, if any, cease to accrue on
Notes or portions thereof called for redemption, unless the Company defaults in
the payment of the Redemption Price.
SECTION 9. Mandatory Redemption. The Company shall not be required to
make mandatory redemption or sinking fund payments with respect to the Notes (it
being understood that the foregoing shall not limit Section 10 below).
SECTION 10. Repurchase at Option of Holder.
A-7
(a) Upon the occurrence of a Change of Control, and subject to certain
conditions set forth in the Indenture, the Company shall be required to offer to
purchase all or any part (equal to $1,000 or an integral multiple of $1,000 in
excess thereof) of the outstanding Notes at a purchase price equal to 101% of
the aggregate principal amount thereof, plus accrued and unpaid interest and
Additional Interest, if any, thereon to the date of repurchase, subject to the
rights of Holders on the relevant Record Date to receive interest due on the
relevant interest payment date.
(b) The Company is, subject to certain conditions and exceptions,
obligated to make an offer to purchase Notes and certain other pari passu
Indebtedness at 100% of their principal amount, plus accrued and unpaid interest
and Additional Interest, if any, thereon to the date of repurchase, with certain
Excess Proceeds of Asset Sales in accordance with the Indenture.
SECTION 11. Denominations, Transfer, Exchange. The Notes are in
registered form without coupons in minimum denominations of $1,000 and integral
multiples of $1,000 in excess thereof. The transfer of Notes may be registered
and Notes may be exchanged as provided in the Indenture. The Registrar and the
Trustee may require a Holder, among other things, to furnish appropriate
endorsements and transfer documents and the Company may require a Holder to pay
any taxes and fees required by law or permitted by the Indenture. The Company
and the Registrar are not required to transfer or exchange any Note selected for
redemption, except the unredeemed portion of any Note being redeemed in part.
Also, the Company and the Registrar are not required to transfer or exchange any
Notes for a period of 15 days before the mailing of a notice of redemption of
Notes to be redeemed.
SECTION 12. Persons Deemed Owners. The registered Holder of a Note may
be treated as its owner for all purposes.
SECTION 13. Amendment, Supplement and Waiver. The Indenture and the
Notes may be amended, supplemented or waived as set forth in, and subject to the
terms and conditions of, the Indenture.
SECTION 14. Defaults and Remedies. The Events of Default relating to
the Notes are set forth in Section 6.01 of the Indenture. If an Event of Default
occurs and is continuing, the Trustee or the Holders of at least 25% in
principal amount of the then outstanding Notes generally may declare all the
Notes to be due and payable immediately. Notwithstanding the foregoing, in the
case of an Event of Default arising from certain events of bankruptcy or
insolvency as set forth in the Indenture, all outstanding Notes shall 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 notice of any continuing Default (except a Default
relating to the payment of principal, premium or interest or Additional
Interest, if any, including an accelerated payment or the failure to make a
payment on the Change of Control Payment Date pursuant to a Change of Control
Offer or the Asset Sale Payment Date pursuant to a Asset Sale Offer) 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 rescind an
acceleration or waive any existing Default
A-8
and its consequences under the Indenture except a continuing Default in the
payment of interest on, or the principal of, or the premium or Additional
Interest on, the Notes, subject to certain conditions being met. The Company
shall deliver to the trustee a statement specifying any Default or Event of
Default within 30 days of becoming aware thereof.
SECTION 15. Additional Amounts. All payments made by the Company under
or with respect to this Note or by a Guarantor under or with respect to its Note
Guarantee shall be made free and clear of and without withholding or deduction
for or on account of any present or future Taxes imposed or levied by or on
behalf of any Taxing Authority in any jurisdiction in which the Company or any
Guarantor is organized or is otherwise a resident for tax purposes or any
jurisdiction from or through which payment is made (each, a "RELEVANT TAXING
JURISDICTION"), unless the Company or such Guarantor is required to withhold or
deduct Taxes by law or by the interpretation or administration thereof.
If the Company or any Guarantor is so required to withhold or deduct
any amount for or on account of Taxes imposed by a Relevant Taxing Jurisdiction
from any payment made under or with respect to this Note or the Note Guarantee
of such Guarantor, the Company or such Guarantor, as applicable, shall pay such
additional amounts ("ADDITIONAL AMOUNTS") as may be necessary so that the net
amount received by each Holder (including Additional Amounts) after such
withholding or deduction shall equal the amount the Holder would have received
if such Taxes had not been withheld or deducted; provided, however, that no
Additional Amounts shall payable with respect to any Tax that would not have
been imposed, payable or due:
(1) but for the existence of any present or former connection between
the Holder (or the beneficial owner of, or person ultimately entitled to
obtain an interest in, such Notes) and the Relevant Taxing Jurisdiction
(including being a citizen or resident or national of, or carrying on a
business or maintaining a permanent establishment in, or being physically
present in, the Relevant Taxing Jurisdiction) other than the mere holding
of this Note or enforcement of rights hereunder or the receipt of payments
in respect hereof;
(2) but for the failure to satisfy any certification, identification
or other reporting requirements whether imposed by statute, treaty,
regulation or administrative practice; provided, however, that the Company
has delivered a request to the Holder to comply with such requirements at
least 30 days prior to the date by which such compliance is required;
(3) if the presentation of this Note (where presentation is required)
for payment has occurred within 30 days after the date such payment was due
and payable or was duly provided for, whichever is later;
(4) subject to the last paragraph of this Section 15, with respect to
any estate, inheritance, gift, sales, excise, transfer or personal property
tax, assessment or charge; or
(5) as a result of a combination of the foregoing clauses (1) through
(4).
In addition, Additional Amounts shall not be payable if the beneficial
owner of, or person ultimately entitled to obtain an interest in, this Note had
been the Holder and such
A-9
beneficial owner would not be entitled to the payment of Additional Amounts by
reason of clause (1), (2), (3), (4) or (5) above. In addition, Additional
Amounts shall not be payable with respect to any Tax which is payable otherwise
than by withholding from payments of, or in respect of principal of, or any
interest or Additional Interest, if any, on, this Note.
Whenever in this Note or the Indenture there is mentioned, in any
context, the payment of principal, premium, if any, interest or Additional
Interest, if any, or of any other amount payable under or with respect to this
Note, such mention shall be deemed to include mention of the payment of
Additional Amounts to the extent that, in such context, Additional Amounts are,
were or would be payable in respect thereof.
The Company and the Guarantors shall pay any present or future stamp,
court or documentary taxes, or any other excise or property taxes, charges or
similar levies that arise in any jurisdiction from the execution, delivery or
registration of this Note, this Indenture or any other document or instrument
referred to therein, or the receipt of any payments with respect to this Note,
excluding any such taxes, charges or similar levies imposed by any jurisdiction
in which the Company or any Guarantor or any successor Person is organized or is
otherwise resident for tax purposes, the United States of America or any
jurisdiction in which a Paying Agent is located, but not excluding those
resulting from, or required to be paid in connection with, the enforcement of
this Note or other such document or instrument following the occurrence of an
Event of Default with respect to this Note.
SECTION 16. No Recourse Against Others. No past, future or present
director, Officer, employee, incorporator, member, manager, agent or shareholder
of the Company or any Guarantor, as such, shall have any liability for any
obligations of the Company or any Guarantors under the Notes, the Indenture, the
Note Guarantees or for any claim based on, in respect of, or by reason of, such
obligations or their creation. The Holder by accepting this Note and the Note
Guarantees waives and releases all such liability. Such waiver and release are
part of the consideration for issuance of this Note and the Note Guarantees.
SECTION 17. Note Guarantees. This Note shall be entitled to the
benefits of certain Note Guarantees made for the benefit of the Holders.
Reference is hereby made to the Indenture for a statement of the respective
rights, limitations of rights, duties and obligations thereunder of the
Guarantors, the Trustee and the Holders.
SECTION 18. Trustee Dealings with the Company. Subject to certain
terms set forth in the Indenture, the Trustee, in its individual or any other
capacity, may become the owner or pledgee of Notes and may otherwise deal with
the Company, the Guarantors their Subsidiaries or their respective Affiliates as
if it were not the Trustee.
SECTION 19. Authentication. This Note shall not be valid until
authenticated by the manual signature of the Trustee or an authenticating agent.
SECTION 20. Abbreviations. Customary abbreviations may be used in the
name of a Holder or an assignee, such as: TEN COM (= tenants in common), TEN ENT
(= tenants by the entirety), 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).
A-10
SECTION 21. Additional Rights of Holders of Restricted Global Notes
and Restricted Definitive Notes. Pursuant to, but subject to the exceptions in,
the Registration Rights Agreement, the Company and the Guarantors shall be
obligated to use their commercially reasonable efforts to consummate an exchange
offer pursuant to which the Holder of this Note shall have the right to exchange
this Note for a 9 1/2% Senior Note due 2014 of the Company which shall have been
registered under the Securities Act, in like principal amount and having terms
identical in all material respects to this Note (except that such Note shall not
be entitled to Additional Interest and shall not contain terms with respect to
transfer restrictions). The Holders shall be entitled to receive certain
Additional Interest in the event such exchange offer is not consummated or the
Notes are not offered for resale and upon certain other conditions, all pursuant
to and in accordance with the terms of the Registration Rights Agreement.(2)
SECTION 22. CUSIP and ISIN Numbers. Pursuant to a recommendation
promulgated by the Committee on Uniform Security Identification Procedures, the
Company has caused CUSIP and ISIN numbers to be printed on the Notes and the
Trustee may use CUSIP or ISIN numbers in notices of redemption as a convenience
to Holders. No representation is made as to the accuracy of such numbers either
as printed on the Notes or as contained in any notice of redemption and reliance
may be placed only on the other identification numbers placed thereon.
SECTION 23. GOVERNING LAW. THIS NOTE SHALL BE GOVERNED BY, AND
CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK WITHOUT GIVING
EFFECT TO CONFLICTS OF LAW PRINCIPLES TO THE EXTENT THAT THE APPLICATION OF THE
LAWS OF ANOTHER JURISDICTION WOULD BE REQUIRED THEREBY.
The Company shall furnish to any Holder upon written request and
without charge a copy of the Indenture.
----------
(2) This Section not to appear on Exchange Securities or Additional Notes
unless required by the terms of such Additional Notes.
A-11
ASSIGNMENT FORM
I or we assign and transfer this Note to
________________________________________________________________________________
(Print or type name, address and zip code of assignee or transferee)
(Insert Social Security or other identifying number of assignee or transferee)
and irrevocably appoint _______________________________________ agent to
transfer this Note on the books of the Company. The agent may substitute another
to act for him.
Dated: _________________ Signed:
---------------------------------
(Sign exactly as name appears on
the other side of this Note)
Signature Guarantee:
-----------------------------------------------------------
Participant in a recognized Signature Guarantee
Medallion Program (or other signature guarantor program
reasonably acceptable to the Trustee)
In connection with any transfer of this Note occurring prior to the
date which is the date following the second anniversary of the original issuance
of this Note, the undersigned confirms that it has not utilized any general
solicitation or general advertising in connection with the transfer and is
making the transfer pursuant to one of the following:
[Check One]
(1) [__] to the Company or a subsidiary thereof; or
(2) [__] to a person who the transferor reasonably believes is a "qualified
institutional buyer" pursuant to and in compliance with Rule 144A under
the Securities Act of 1933, as amended (the "Securities Act"); or
(3) [__] outside the United States to a non-"U.S. person" as defined in Rule 902
of Regulation S under the Securities Act in compliance with Rule 904 of
Regulation S under the Securities Act; or
(4) [__] pursuant to the exemption from registration provided by Rule 144 under
the Securities Act or pursuant to another exemption available under the
Securities Act; or
(5) [__] pursuant to an effective registration statement under the Securities
Act.
A-12
and unless the box below is checked, the undersigned confirms that such Note is
not being transferred to an "affiliate" of the Company as defined in Rule 144
under the Securities Act (an "Affiliate"):
[__] transferee is an Affiliate of the Company.
Unless one of the foregoing items (1) through (6) is checked, the
Trustee shall refuse to register any of the Notes evidenced by this certificate
in the name of any person other than the registered Holder thereof; provided,
however, that if item (3) or (4) is checked, the Company or the Trustee may
require, prior to registering any such transfer of the Notes, in their sole
discretion, such written legal opinions, certifications (including an investment
letter in the case of box (3)) and other information as the Trustee or the
Company has reasonably requested to confirm that such transfer is being made
pursuant to an exemption from, or in a transaction not subject to, the
registration requirements of the Securities Act.
If none of the foregoing items (1) through (5) are checked, the
Trustee or Registrar shall not be obligated to register this Note in the name of
any person other than the Holder hereof unless and until the conditions to any
such transfer of registration set forth herein and in Section 2.16 of the
Indenture shall have been satisfied.
Dated: _________________ Signed:
--------------------------------
(Sign exactly as name appears on
the other side of this Note)
Signature Guarantee:
-----------------------------------------------------------
Participant in a recognized Signature Guarantee
Medallion Program (or other signature guarantor program
reasonably acceptable to the Trustee)
TO BE COMPLETED BY PURCHASER IF (2) ABOVE IS CHECKED
The undersigned represents and warrants that it is purchasing this
Note for its own account or an account with respect to which it exercises sole
investment discretion and that it and any such account is a "qualified
institutional buyer" within the meaning of Rule 144A under the Securities Act
and is aware that the sale to it is being made in reliance on Rule 144A and
acknowledges that it has received such information regarding the Company as the
undersigned has requested pursuant to Rule 144A or has determined not to request
such information and that it is aware that the transferor is relying upon the
undersigned's foregoing representations in order to claim the exemption from
registration provided by Rule 144A.
Dated: _______________ ----------------------------------------
NOTICE: To be executed by an executive
officer
A-13
OPTION OF HOLDER TO ELECT PURCHASE
If you want to elect to have this Note purchased by the Company
pursuant to Section 4.09 or Section 4.13 of the Indenture, check the appropriate
box:
Section 4.09 [_] Section 4.13 [_]
If you want to elect to have only part of this Note purchased by the
Company pursuant to Section 4.09 or Section 4.13 of the Indenture, state the
amount (in denominations of $1,000 and integral multiples of $1,000 in excess
thereof): $___________
Dated: _______________ Signed:
--------------------------------
(Sign exactly as name appears on
the other side of this Note)
Signature Guarantee:
----------------------------------------
Participant in a recognized Signature
Guarantee Medallion Program (or other
signature guarantor program reasonably
acceptable to the Trustee)
A-14
SCHEDULE OF EXCHANGES OF INTERESTS IN THE GLOBAL NOTE(3)
The following exchanges of a part of this Global Note for an interest
in another Global Note or for a Physical Note, or exchanges of a part of another
Global Note or Physical Note for an interest in this Global Note, have been
made:
Principal Amount of Signature of
Amount of decrease in Amount of increase in this Global Note authorized signatory
Principal Amount of Principal Amount of following such decrease of Trustee or Note
Date of Exchange this Global Note this Global Note (or increase) Custodian
---------------- --------------------- --------------------- ----------------------- --------------------
----------
(3) This schedule should be included only if the Note is issued in global form.
A-15
EXHIBIT B
FORM OF LEGENDS
Each Global Note and Physical Note that constitutes a Restricted
Security shall bear the following legend (the "Private Placement Legend") on the
face thereof until after the second anniversary of the Issue Date, unless
otherwise agreed by the Company and the Holder thereof or if such legend is no
longer required by Section 2.16(f) of the Indenture:
THE NOTES EVIDENCED HEREBY HAVE NOT BEEN REGISTERED UNDER THE UNITED STATES
SECURITIES ACT OF 1933 (THE "SECURITIES ACT") AND MAY NOT BE OFFERED, SOLD,
PLEDGED OR OTHERWISE TRANSFERRED EXCEPT (A)(1) TO A PERSON WHO THE SELLER
REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER WITHIN THE MEANING
OF RULE 144A UNDER THE SECURITIES ACT PURCHASING FOR ITS OWN ACCOUNT OR FOR
THE ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER IN A TRANSACTION MEETING THE
REQUIREMENTS OF RULE 144A, (2) IN AN OFFSHORE TRANSACTION COMPLYING WITH
RULE 903 OR RULE 904 OF REGULATION S UNDER THE SECURITIES ACT, (3) PURSUANT
TO AN EXEMPTION FROM REGISTRATION UNDER THE SECURITIES ACT PROVIDED BY RULE
144 THEREUNDER (IF AVAILABLE), (4) PURSUANT TO ANOTHER APPLICABLE EXEMPTION
FROM REGISTRATION UNDER THE SECURITIES ACT OR (5) PURSUANT TO AN EFFECTIVE
REGISTRATION STATEMENT UNDER THE SECURITIES ACT AND (B) IN ACCORDANCE WITH
ALL APPLICABLE SECURITIES LAWS OF THE STATES OF THE UNITED STATES AND OTHER
JURISDICTIONS.
Each Global Note authenticated and delivered hereunder shall also bear
the following legend:
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 OR 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.
EXHIBIT C
Form of Certificate To Be Delivered
in Connection with Transfers
Pursuant to Regulation S
[_____________], [_____]
βββββ Fargo Bank, N.A.
Corporate Trust Services
Sixth and Marquette
MAC βββββ-βββ
βββββββββββ, ββ βββββ
Attention: Corporate Trust Services
Re: Navios Maritime Holdings Inc. (the "COMPANY") 9 1/2% Senior
Notes due 2014 (the "NOTES")
Ladies and Gentlemen:
In connection with our proposed sale of $[_______] aggregate principal
amount of the Notes, we confirm that such sale has been effected pursuant to and
in accordance with Regulation S under the U.S. Securities Act of 1933, as
amended (the "SECURITIES ACT"), and, accordingly, we represent that:
(1) the offer of the Notes was not made to a person in the United
States;
(2) either (a) at the time the buy offer was originated, the
transferee was outside the United States or we and any person acting on our
behalf reasonably believed that the transferee was outside the United
States, or (b) the transaction was executed in, on or through the
facilities of a designated offshore securities market and neither we nor
any person acting on our behalf knows that the transaction has been
prearranged with a buyer in the United States;
(3) no directed selling efforts have been made in the United States in
contravention of the requirements of Rule 903(b) or Rule 904(b) of
Regulation S, as applicable;
(4) the transaction is not part of a plan or scheme to evade the
registration requirements of the Securities Act; and
(5) we have advised the transferee of the transfer restrictions
applicable to the Notes.
C-1
You, as Trustee, the Company, counsel for the Company and others are
entitled to conclusively rely upon this letter and are irrevocably authorized to
produce this letter or a copy hereof to any interested party in any
administrative or legal proceedings or official inquiry with respect to the
matters covered hereby. Terms used in this certificate have the meanings set
forth in Regulation S under the Securities Act.
Very truly yours,
[Name of Transferor]
By:
------------------------------------
Authorized Signatory
C-2
EXHIBIT D
FORM OF SUPPLEMENTAL INDENTURE
TO BE DELIVERED BY SUBSEQUENT GUARANTORS
SUPPLEMENTAL INDENTURE (this "SUPPLEMENTAL INDENTURE"), dated as of
_________________, 20__, among _______________________ (the "GUARANTEEING
SUBSIDIARY"), a subsidiary of Navios Maritimes Holdings Inc. (or its permitted
successor), a ββββββββ Islands corporation (the "COMPANY"), the Company, the
other Guarantors (as defined in the Indenture referred to herein) and βββββ
Fargo Bank, N.A., as trustee (or its permitted successor) under the Indenture
referred to below (the "TRUSTEE").
WITNESSETH
WHEREAS, the Company and the Guarantors has heretofore executed and
delivered to the Trustee an indenture (the "INDENTURE"), dated as of December
18, 2006 providing for the issuance of 9 1/2% Senior Notes due 2014 (the
"NOTES");
WHEREAS, the Indenture provides that under certain circumstances the
Guaranteeing Subsidiary shall execute and deliver to the Trustee a supplemental
indenture pursuant to which the Guaranteeing Subsidiary shall unconditionally
guarantee all of the Company's obligations under the Notes and the Indenture on
the terms and conditions set forth herein (the "NOTE GUARANTEE"); and
WHEREAS, pursuant to Section 9.01 of the Indenture, the Trustee is
authorized to execute and deliver this Supplemental Indenture.
NOW, THEREFORE, in consideration of the foregoing and for other good
and valuable consideration, the receipt of which is hereby acknowledged, the
Guaranteeing Subsidiary and the Trustee mutually covenant and agree for the
equal and ratable benefit of the Holders of the Notes as follows:
1. CAPITALIZED TERMS. Capitalized terms used herein without definition
shall have the meanings assigned to them in the Indenture.
2. AGREEMENT TO GUARANTEE. The Guaranteeing Subsidiary hereby agrees
to provide an unconditional Guarantee, on and subject to the terms, conditions
and limitations set forth in the Notation of Guarantee and in the Indenture,
including, but not limited, to Article Ten thereof.
4. NEW YORK LAW TO GOVERN. THIS SUPPLEMENTAL INDENTURE SHALL BE
GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK,
WITHOUT GIVING EFFECT TO CONFLICTS OF LAW PRINCIPLES TO THE EXTENT THAT THE
APPLICATION OF THE LAWS OF ANOTHER JURISDICTION WOULD BE REQUIRED THEREBY.
D-1
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 affect the construction hereof.
7. THE TRUSTEE. The Trustee shall not be responsible in any manner
whatsoever for or in respect of the validity or sufficiency of this Supplemental
Indenture or for or in respect of the recitals contained herein, all of which
recitals are made solely by the Guaranteeing Subsidiary and the Company.
D-2
IN WITNESS WHEREOF, the parties hereto have caused this Supplemental
Indenture to be duly executed and attested, all as of the date first above
written.
Dated: __________________, 20__
[GUARANTEEING SUBSIDIARY]
By:
----------------------------------
Name:
Title:
NAVIOS MARITIME HOLDINGS INC.
By:
----------------------------------
Name:
Title:
[EXISTING GUARANTORS]
By:
----------------------------------
Name:
Title:
βββββ FARGO BANK, N.A.,
as Trustee
By:
----------------------------------
Authorized Signatory
D-3
EXHIBIT E
NOTATION OF GUARANTEE
For value received, each Guarantor (which term includes any successor
Person under the Indenture) has, jointly and severally, unconditionally
guaranteed, to the extent set forth in the Indenture and subject to the
provisions in the Indenture dated as of December 18, 2006 (the "INDENTURE"),
among Navios Maritime Holdings Inc. (the "COMPANY"), the Guarantors party
thereto and βββββ Fargo Bank, N.A., as trustee (the "TRUSTEE"), (a) (x) the due
and punctual payment of the principal of, premium, if any, and interest and
Additional Interest, if any, on the Notes when and as the same shall become due
and payable, whether at maturity, upon redemption or repurchase, by acceleration
or otherwise, (y) the due and punctual payment of interest on the overdue
principal and (to the extent permitted by law) interest and Additional Interest,
if any, on the Notes and (z) the due and punctual payment and performance of all
other obligations of the Company and all other obligations of the other
Guarantors (including under the Note Guarantees). The obligations of the
Guarantors to the Holders and to the Trustee pursuant to the Note Guarantee and
the Indenture are expressly set forth in Article 10 of the Indenture and
reference is hereby made to the Indenture for the precise terms of the Note
Guarantee.
Capitalized terms used but not defined herein have the meanings given
to them in the Indenture.
E-1
IN WITNESS WHEREOF, each Guarantor has caused this Notation of
Guarantee to be duly executed.
Date:
[Guarantors]
E-2
EXHIBIT F
FORM OF INCUMBENCY CERTIFICATE
The undersigned, __________________, being the ________________ of
________________ (the "COMPANY"), does hereby certify that the individuals
listed below are qualified and acting officers of the Company as set forth in
the right column opposite their respective names and the signatures appearing in
the extreme right column opposite the name of each such officer is a true
specimen of the genuine signature of such officer and such individuals have the
authority to execute documents to be delivered to, or upon the request of, βββββ
Fargo Bank, N.A., as Trustee under the Indenture dated as of December 15, 2006,
by and between the Company, the guarantors party thereto and βββββ Fargo Bank,
N.A.
Name Title Signature
---- ----- ---------
_________________ _________________ ________________
_________________ _________________ ________________
_________________ _________________ ________________
IN WITNESS WHEREOF, the undersigned has duly executed and delivered
this Certificate as of the __________ day of __________, 20__.
Name:
Title:
F-1