SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of the
Securities Exchange Act of 1934
Date of Report (Date of earliest event reported) January 22, 1998
INTERNATIONAL SHIPHOLDING CORPORATION
(Exact name of registrant as specified in its charter)
Delaware 2-63322 36-2989662
(State or other (Commission File Number) (Federal Employer
jurisdiction Identification No.)
of incorporation)
650 Poydras Street, New Orleans, Louisiana 70130
(Address of principal executive offices) (Zip Code)
(504) 529-5461
(Registrant's telephone number, including area code)
N/A
(Former name or former address, if changed since last report.)
Item 5. Other Events
On January 22, 1998, International Shipholding Corporation
(the "Company") completed the private placement of $110,000,000
of the Company's 7 3/4 % Senior Notes due 2007 (the "Notes").
The Company received net proceeds from the sale of the Notes of
approximately $106.3 million and intends to use substantially all
of the net proceeds from the offering to repay approximately
$103.0 million in principal amount of secured indebtedness of
certain of the Company's subsidiaries and to repay approximately
$1.3 million of the Company's existing revolving credit facility.
The Notes have not been registered under the Securities Act
of 1933 and may not be offered or sold in the United States
absent registration or an applicable exemption from the
registration requirements thereunder. The holders of the Notes
are entitled to certain registration rights, pursuant to a
registration rights agreement which provides that the Company
will (a) within 60 calendar days after the date of original issue
of the Notes (the "Issue Date"), file a registration statement
with the Securities and Exchange Commission (the "Commission")
with respect to an offer to exchange (the "Exchange Offer") the
Notes for the Company's 7 3/4 % Senior Notes due 2007 (the
"Exchange Notes") which will have terms substantially identical
to the Notes (except that the Exchange Notes will not contain
terms with respect to transfer restrictions under the Securities
Act of 1933) and (b) use its best efforts to cause the
registration statement to be declared effective within 150 days
after the Issue Date. Under certain circumstances, the Company
will file with the Commission a shelf registration statement to
cover resales of the Notes by holders thereof.
Item 7. Financial Statements and Exhibits.
(a) Not applicable.
(b) Exhibits
4.1 Indenture dated January 22, 1998, between the
Company, as Issuer, and The Bank of New York, as
Trustee.
10.1Registration Rights Agreement dated January 22,
1998 among the Company and Citicorp Securities,
Inc., Citibank Canada Securities Limited and
Citibank International plc.
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act
of 1934, the Company has duly caused this report to be signed on
its behalf by the undersigned hereunto duly authorized.
INTERNATIONAL SHIPHOLDING CORPORATION
By: /s/ Gary L. Ferguson
------------------------------
Gary L. Ferguson
Vice President and
Chief Financial Officer
Dated: January 22, 1998
EXHIBIT INDEX
Exhibit No. Description
----------- -----------
4.1 Indenture dated January 22, 1998
among the Company, as Issuer, and
The Bank of New York, as Trustee.
10.1 Registration Rights Agreement dated
January 22, 1998 among the Company
and Citicorp Securities, Inc.,
Citibank Canada Securities Limited
and Citibank International plc.
===============================================================
INTERNATIONAL SHIPHOLDING CORPORATION,
as Issuer
and
THE BANK OF NEW YORK,
as Trustee
INDENTURE
Dated as of January 22, 1998
up to $160,000,000
7 3/4% Senior Notes due 2007
===============================================================
CROSS-REFERENCE TABLE
TIA Indenture
Section Section
- ------- ---------
310(a)(1) 7.10
(a)(2) 7.10
(a)(3) N.A.
(a)(4) N.A.
(a)(5) 7.10
(b) 7.08; 7.10
(c) N.A.
311(a) 7.11
(b) 7.11
(c) N.A.
312(a) 2.05
(b) 10.03
(c) 10.03
313(a) 7.06
(b) 7.06
(c) 7.06; 10.02
(d) 7.06; 10.02
314(a) 4.02; 4.04; 10.02
(b) N.A.
(c)(1) 10.04; 10.05
(c)(2) 10.04; 10.05
(c)(3) N.A.
(d) N.A.
(e) 10.05
(f) N.A.
315(a) 7.01; 7.02
(b) 7.05; 10.02
(c) 7.01
(d) 6.05; 7.01; 7.02
(e) 6.11
316(a) (last sentence) 10.06
(a)(1)(A) 6.05
(a)(1)(B) 6.04
(a)(2) 8.02
(b) 6.07
(c) 8.04
317(a)(1) 6.08
(a)(2) 6.09
(b) 7.12
318 10.01
N.A. means Not Applicable
____________________
NOTE: This Cross-Reference Table shall not, for any purpose,
be deemed to be a part of the Indenture.
TABLE OF CONTENTS
-----------------
Page
ARTICLE 1
DEFINITIONS AND INCORPORATION BY REFERENCE
Section 1.01. Definitions. 1
Section 1.02. Other Definitions. 18
Section 1.03. Incorporation by Reference of Trust
Indenture Act. 19
Section 1.04. Rules of Construction. 19
ARTICLE 2
THE NOTES
Section 2.01. Dating; Incorporation of Form in
Indenture. 20
Section 2.02. Execution and Authentication. 21
Section 2.03. Registrar and Paying Agent. 22
Section 2.04. Paying Agent To Hold Money in Trust. 22
Section 2.05. Noteholder Lists. 23
Section 2.06. Transfer and Exchange. 23
Section 2.07. Replacement Notes. 24
Section 2.08. Outstanding Notes. 25
Section 2.09. Temporary Notes. 25
Section 2.10. Cancellation. 26
Section 2.11. Defaulted Interest. 26
Section 2.12. Deposit of Moneys. 26
Section 2.13. CUSIP Number. 27
Section 2.14. Book-Entry Provisions for Global Notes. 27
Section 2.15. Special Transfer Provisions. 29
ARTICLE 3
REDEMPTION
Section 3.01. No Redemption. 31
ARTICLE 4
COVENANTS
Section 4.01. Payment of Notes. 31
Section 4.02. Provision of Financial Statements and
Other Information. 32
Section 4.03. Waiver of Stay, Extension or Usury
Laws. 33
Section 4.04. Compliance Certificate. 33
Section 4.05. Taxes. 34
Section 4.06. Limitation on Indebtedness. 34
Section 4.07. Limitation on Restricted Payments. 35
Section 4.08. Disposition of Proceeds of Asset Sales. 38
Section 4.09. Limitation on Transactions with
Affiliates. 42
Section 4.10. Limitations on Liens. 42
Section 4.11. Limitations on Guarantees by
Subsidiaries. 42
Section 4.12. Limitation on Sale-Leaseback
Transactions. 43
Section 4.13. Payments for Consent. 44
Section 4.14. Corporate Existence. 44
Section 4.15. Change of Control. 44
Section 4.16. Maintenance of Office or Agency. 47
Section 4.17. Restrictions on Preferred Stock of
Subsidiaries. 47
Section 4.18. Limitation on Dividends and Other
Payment Restrictions Affecting
Subsidiaries. 47
Section 4.19. Limitations on Unrestricted
Subsidiaries. 48
Section 4.20. Insurance. 48
ARTICLE 5
SUCCESSOR CORPORATION
Section 5.01. Limitation on Consolidation, Merger and
Sale of Assets. 49
Section 5.02. Successor Person Substituted. 52
ARTICLE 6
DEFAULTS AND REMEDIES
Section 6.01. Events of Default. 52
Section 6.02. Acceleration. 55
Section 6.03. Other Remedies. 56
Section 6.04. Waiver of Past Defaults and Events of
Default. 56
Section 6.05. Control by Majority. 56
Section 6.06. Limitation on Suits. 57
Section 6.07. Rights of Holders To Receive Payment. 57
Section 6.08. Collection Suit by Trustee. 58
Section 6.09. Trustee May File Proofs of Claim. 58
Section 6.10. Priorities. 59
Section 6.11. Undertaking for Costs. 59
ARTICLE 7
TRUSTEE
Section 7.01. Duties of Trustee. 60
Section 7.02. Rights of Trustee. 61
Section 7.03. Individual Rights of Trustee. 62
Section 7.04. Trustee's Disclaimer. 62
Section 7.05. Notice of Defaults. 62
Section 7.06. Reports by Trustee to Holders. 63
Section 7.07. Compensation and Indemnity. 63
Section 7.08. Replacement of Trustee. 64
Section 7.09. Successor Trustee by Consolidation,
Merger or Conversion. 65
Section 7.10. Eligibility; Disqualification. 66
Section 7.11. Preferential Collection of Claims
Against Company. 66
Section 7.12. Paying Agents. 66
ARTICLE 8
AMENDMENTS, SUPPLEMENTS AND WAIVERS
Section 8.01. Without Consent of Holders. 67
Section 8.02. With Consent of Holders. 68
Section 8.03. Compliance with Trust Indenture Act. 69
Section 8.04. Revocation and Effect of Consents. 70
Section 8.05. Notation on or Exchange of Notes. 70
Section 8.06. Trustee To Sign Amendments, etc. 71
ARTICLE 9
DISCHARGE OF INDENTURE; DEFEASANCE
Section 9.01. Satisfaction and Discharge of
Indenture. 71
Section 9.02. Defeasance. 72
Section 9.03. Covenant Defeasance. 72
Section 9.04. Conditions to Defeasance or Covenant
Defeasance. 73
Section 9.05. Deposited Money and U.S. Government
Obligations To Be Held in Trust;
Other Miscellaneous Provisions. 74
Section 9.06. Reinstatement. 75
Section 9.07. Moneys Held by Paying Agent. 75
Section 9.08. Moneys Held by Trustee. 76
ARTICLE 10
MISCELLANEOUS
Section 10.01. Trust Indenture Act Controls. 76
Section 10.02. Notices. 76
Section 10.03. Communications by Holders with Other
Holders. 78
Section 10.04. Certificate and Opinion as to
Conditions Precedent. 78
Section 10.05. Statements Required in Certificate and
Opinion. 78
Section 10.06. When Treasury Notes Disregarded. 79
Section 10.07. Rules by Trustee and Agents. 79
Section 10.08. Business Days; Legal Holidays. 79
Section 10.09. Governing Law. 79
Section 10.10. No Adverse Interpretation of Other
Agreements. 80
Section 10.11. No Recourse Against Others. 80
Section 10.12. Successors. 80
Section 10.13. Multiple Counterparts. 80
Section 10.14. Table of Contents, Headings, etc. 80
Section 10.15. Separability. 81
EXHIBITS
- --------
Exhibit A. Form of Note A-1
Exhibit B. Form of Legend for Global Notes B-1
Exhibit C. Form of Certificate to Be Delivered in
Connection with Transfers to Non-QIB
Accredited Investors C-1
Exhibit D. Form of Certificate to Be Delivered in
Connection with Transfers Pursuant to
Regulation S D-1
INDENTURE, dated as of January 22, 1998, between
INTERNATIONAL SHIPHOLDING CORPORATION, a Delaware corporation,
as Issuer (the "Company") and THE BANK OF NEW YORK, a New York
banking corporation, as Trustee (the "Trustee").
Each party agrees as follows for the benefit of the
other parties and for the equal and ratable benefit of the
Holders of the Company's 7 3/4% Senior Notes due 2007 (the
"Notes").
ARTICLE 1
DEFINITIONS AND INCORPORATION BY REFERENCE
Section 1.01. Definitions.
-----------
"Acquired Indebtedness" means Indebtedness of a
Person (i) assumed in connection with the acquisition of assets
or secured by the assets so acquired from such Person or
(ii) existing at the time such Person becomes a Subsidiary
(other than any Indebtedness incurred in connection with, or in
contemplation of, such asset acquisition of such Person
becoming a Subsidiary). Acquired Indebtedness shall be deemed
to be incurred on the date of the related acquisition of assets
from any Person or the date the acquired Person becomes a
Subsidiary.
"Affiliate" means, with respect to any specified
Person, (i) any other Person directly or indirectly controlling
or controlled by or under direct or indirect common control
with such specified Person or (ii) any other Person that
beneficially owns, directly or indirectly, 5% or more of such
specified Person's outstanding Capital Stock or (iii) any
officer or director of any such specified Person or any such 5%
stockholder of such specified Person, and shall not include any
employee or consultant of such Person who is not otherwise an
Affiliate of such Person. For the purposes of this definition,
"control" when used with respect to any specified Person means
the power to direct the management and policies of such Person
directly or indirectly, whether through ownership of voting
securities, by contract or otherwise; and the terms
"controlling" and "controlled" have meanings correlative to the
foregoing.
"Agent" means any Registrar, Paying Agent, co-
registrar or agent for service of notices and demands.
"Asset Sale" means any sale, issuance, conveyance,
transfer, capital lease or other disposition (including,
without limitation, by way of merger, consolidation or sale and
leaseback transaction) (collectively, a "transfer"), directly
or indirectly, in one or a series of related transactions, of
any of the following (each an "Asset"): (i) Capital Stock of
any Subsidiary (other than Directors Qualifying Shares);
(ii) all or substantially all of the properties and assets of
any division or line of business of the Company and
Subsidiaries (other than to a Wholly Owned Subsidiary); or
(iii) other properties or assets of the Company or any
Subsidiary (other than to the Company or a Wholly Owned
Subsidiary), other than in the ordinary course of business.
For the purposes of this definition, the term "Asset Sale"
shall not include (i) any transfer of properties and assets
that is governed by the provisions described under Section 5.01
of this Indenture; (ii) any transfer of properties or assets
the gross proceeds of which in the aggregate do not exceed $5
million in any year; or (iii) any transfer of properties or
assets to an Unrestricted Subsidiary permitted to be made under
the provisions described under Section 4.19 of this Indenture.
"Attributable Debt" means, with respect to a sale and
leaseback transaction, as at the time of determination, the
greater of (a) the fair market value of the property subject to
such sale and leaseback transaction (as set forth in a Board
Resolution) and (b) the present value (discounted at the
interest rate borne by the Notes, compounded annually) of the
total obligations of the lessee for rental payments during the
remaining term of the lease included in such sale and leaseback
transaction (including any period for which such lease has been
extended).
"Average Life to Stated Maturity" means, as of the
date of determination with respect to any Indebtedness, the
quotient obtained by dividing (i) the sum of the products of
(a) the number of years from the date of determination to the
date or dates of each successive scheduled principal payment of
such Indebtedness multiplied by (b) the amount of each such
principal payment by (ii) the sum of all such principal
payments.
"Bank Credit Agreement" means (i) the $25 million
credit facility to be entered into by the Company, as borrower,
and Citibank, N.A., as agent and lender, (ii) any one or more
additional agreements between the Company and one or more
financial institutions providing for the making of loans on an
unsecured revolving basis, the issuance of letters of credit
and/or the creation of bankers' acceptances, in each case for
the purpose of funding the Company's working capital
requirements and general corporate purposes, and (iii) any
replacements, renewals or refinancings of the foregoing.
"Board of Directors" means the board of directors of
the Company or a Guarantor, if any, or any committee authorized
to act on behalf of such board.
"Board Resolution" means with respect to any Person,
a copy of a resolution certified by the person appointed to act
as secretary at the meeting of the Board of Directors at which
such resolution was adopted or by any director present at the
meeting of the Board of Directors at which such resolution was
adopted to have been duly adopted, by the Board of Directors of
such Person and to be in full force and effect on the date of
such certification.
"Capital Lease Obligations" means any obligations of
the Company on a Consolidated basis incurred or assumed in the
ordinary course of business under or in connection with any
capital lease of real or personal property which, in accordance
with GAAP, has been recorded as a capitalized lease.
"Capital Stock" of any Person means any and all
shares, interests, participations, or other equivalents
(however designated) of such Person's capital stock, whether
now outstanding or issued after the date of the Indenture.
"Change of Control" means the occurrence of one or
more of the following events: (i) a "person" or "group" (within
the meaning of Sections 13(d) and 14(d) of the Exchange Act),
other than the Johnsen Family, is or becomes the "beneficial
owner" (as defined in Rule 13d-3 under the Exchange Act) of the
greater of (A) forty percent (40%) of the total voting power of
the then outstanding Voting Stock of the Company and (B) the
total voting power of the then outstanding Voting Stock of the
Company beneficially owned in the aggregate by the Johnsen
Family; (ii) the individuals who, as of the date of the
Indenture, are members of the Board of Directors of the Company
(the "Incumbent Board") cease for any reason to constitute at
least two-thirds of the Board of Directors of the Company;
provided, however, that if either the election of any new
director or the nomination for election of any new director by
the Company's stockholders was approved by a vote of at least
two-thirds of the Incumbent Board, such new director shall be
considered as a member of the Incumbent Board; (iii) (A) the
Company consolidates with or merges into any other Person or
conveys, transfers or leases all or substantially all of its
assets to any Person or (B) any Person merges into the Company,
in either event pursuant to a transaction in which any Voting
Stock of the Company outstanding immediately prior to the
effectiveness thereof is reclassified or changed into or
exchanged for cash, securities or other property (other than
any such transactions where (x) the outstanding Voting Stock of
the Company is converted into or exchanged for (I) Voting Stock
(other than Redeemable Capital Stock) of the surviving or
transferee corporation, or (II) cash, securities and/or other
property in an amount which could be paid as a Restricted
Payment under the Indenture (and is treated as such) and
(y) immediately after the consummation of such transaction, no
"person" or "group" other than the Johnsen Family is or becomes
the "beneficial owner," directly or indirectly of more than 35%
of the total Voting Stock of such surviving or transferee
corporation); or (iv) the Company is not in material compliance
with the citizenship requirements imposed under the Merchant
Marine Act of 1920, as amended, the Merchant Marine Act of
1936, as amended, or any other applicable United States laws
for entities engaged in coastwise trade or eligible to receive
operating differential subsidies.
"Commission" means the United States Securities and
Exchange Commission.
"Company" means International Shipholding
Corporation, a Delaware corporation, until a successor Person
shall have become such pursuant to the applicable provisions of
this Indenture, and thereafter "Company" shall mean such
successor Person.
"Company Request" means any written request signed in
the name of the Company by the Chairman of the Board of Direc
tors, the President, an Executive Vice President, the Chief
Financial Officer, the Treasurer or the Controller and attested
to by any Officer of the Company.
"Consolidated Income Tax Expense" means, for any
period, as applied to any Person, the provision for federal,
state, local or foreign income taxes of such Person and its
Consolidated Subsidiaries for such period as determined in
accordance with GAAP consistently applied.
"Consolidated Interest Expense" means, without
duplication, for any period, as applied to any Person, the sum
of (a) the interest expense of such Person and its Consolidated
Subsidiaries for such period as determined in accordance with
GAAP consistently applied including, without limitation,
(i) amortization of debt discount and debt issuance cost,
(ii) the net cost under interest rate contracts (including
amortization of discounts), (iii) the interest portion of any
deferred payment obligation, (iv) accrued interest, (v) noncash
interest payments and (vi) commissions, discounts, and other
fees and charges owed with respect to letters of credit and
bankers' acceptance financing, plus (b) the interest portion of
Capital Lease Obligations paid, accrued and/or scheduled to be
paid or accrued by such Person and its Consolidated
Subsidiaries, plus (c) capitalized interest, plus (d) Preferred
Stock dividends in respect of Preferred Stock of the Company or
any Subsidiary held by Persons other than the Company or a
Wholly Owned Subsidiary.
"Consolidated Net Income (Loss)" means, for any
period, the Consolidated net income (or loss) of the Company
and its Consolidated Subsidiaries for such period as determined
in accordance with GAAP, adjusted, to the extent included in
calculating such net income, by excluding (i) all extraordinary
gains or losses (less all fees and expenses relating thereto);
(ii) the portion of net income (or loss) of the Company and its
Consolidated Subsidiaries allocable to minority interests in
unconsolidated Persons to the extent that cash dividends or
distributions have not actually been received by such Person or
one of its Consolidated Subsidiaries; (iii) net income (or
loss) of any Person combined with the Company or any of its
Subsidiaries in a "pooling of interests" basis attributable to
any period prior to the date of combination; (iv) any gain or
loss, net of taxes, realized upon the termination of any
employee pension benefit plan; (v) net gains or losses (less
all fees and expenses relating thereto) in respect of
dispositions of assets other than in the ordinary course of
business; and (vi) the net income of any Subsidiary to the
extent that the declaration of dividends or similar
distributions by that Subsidiary of that income is not at the
end of the fiscal quarter in which such net income was earned
permitted, directly or indirectly, by operation of the terms of
its charter or any agreement, instrument, judgment, decree,
order, statute, rule or governmental regulations applicable to
that Subsidiary or its shareholders unless, and to the extent,
such net income can be paid to the Company in the form of
advances or principal repayments on intercompany indebtedness,
accounts or other obligations.
"Consolidated Net Tangible Assets" means, with
respect to the Company, the total assets shown on the balance
sheet of the Company and its Consolidated Subsidiaries, as
determined on a Consolidated basis in accordance with GAAP
consistently applied, as of the Company's latest fiscal quarter
for which financial information is then required to be
available, less goodwill and other intangibles.
"Consolidated Net Worth" means, with respect to the
Company, the Consolidated shareholders' equity of the Company
and its Subsidiaries, as determined in accordance with GAAP
consistently applied.
"Consolidation" means, with respect to any Person,
the consolidation of the accounts of such Person and each of
its Subsidiaries if and to the extent the accounts of such
Person and each of its Subsidiaries would normally be
consolidated with those of such Person, all in accordance with
GAAP. The term "Consolidated" shall have a similar meaning.
"Corporate Trust Office" means the office of the
Trustee at which at any particular time its corporate trust
business shall be principally administered, which office at the
date of execution of this Indenture is located at 101 Barclay
Street, Floor 21 West, New York, New York 10286.
"Default" means any event that is, or after notice or
passage of time or both would be, an Event of Default.
"Depository" means, with respect to the Notes issued
in the form of one or more Global Notes, The Depository Trust
Company or another Person designated as Depository by the Com
pany (or any successor thereto), which Person must be a
clearing agency registered under the Exchange Act.
"Directors Qualifying Shares" means shares of Capital
Stock of a Person held by nominees, directors or trustees
pursuant to the requirements of the law of the jurisdiction in
which such Person is organized.
"Exchange Act" means the Securities Exchange Act of
1934, as amended.
"Fair Market Value" means, with respect to any asset
or property, the sale value that would be obtained in an
arm's-length transaction between an informed and willing seller
under no compulsion to sell and an informed and willing buyer.
"Fixed Charge Coverage Ratio" means, for any period,
the ratio of (a) the sum of Consolidated Net Income,
Consolidated Interest Expense and Consolidated Income Tax
Expense plus, without duplication, all depreciation,
amortization and all other non-cash charges (excluding any such
non-cash charge constituting an extraordinary item of loss or
any non-cash charge which requires an accrual of or a reserve
for cash charges for any future period), in each case, for such
period, of the Company and its Subsidiaries on a Consolidated
basis, all determined in accordance with GAAP to
(b) Consolidated Interest Expense for such period; provided
that in making such computation, the Consolidated Interest
Expense attributable to interest on any Indebtedness computed
on a pro forma basis and bearing a floating interest rate shall
be computed as if the rate in effect on the date of computation
had been the applicable rate for the entire period.
"Generally Accepted Accounting Principles" or "GAAP"
means generally accepted accounting principles in the United
States, consistently applied, which are in effect on the date
of the Indenture.
"Holder" or "Noteholder" means the Person in whose
name a Note is registered on the Registrar's books.
"Indebtedness" with respect to any Person is defined
as, without duplication, (i) all indebtedness of such Person
for borrowed money or for the deferred purchase price of
property or services, excluding any trade payables and other
accrued current liabilities incurred in the ordinary course of
business, but including, without limitation, all obligations,
contingent or otherwise, of such Person in connection with any
letters of credit issued under letter of credit facilities,
acceptance facilities or other similar facilities, now or
hereafter outstanding; (ii) all obligations (other than
interest, premium and additional payments, if any) of such
Person evidenced by bonds, notes, debentures or other similar
instruments; (iii) all indebtedness created or arising under
any conditional sale or other title retention agreement with
respect to property acquired by such Person (even if the rights
and remedies of the seller or lender under such agreement in
the event of default are limited to repossession or sale of
such property), but excluding trade accounts payable arising in
the ordinary course of business; (iv) all Capital Lease
Obligations of such Person; (v) all Indebtedness referred to in
clause (i), (ii), (iii), or (iv) above of other Persons and all
dividends of other Persons, the payment of which is secured by
(or for which the Holder of such Indebtedness has an existing
right, contingent or otherwise, to be secured by) any Lien,
upon or in property (including, without limitation, accounts
and contract rights) owned by such Person, even though such
Person has not assumed or become liable for the payment of such
Indebtedness; (vi) all guarantees of Indebtedness by such
Person; (vii) all Redeemable Capital Stock valued at the
greater of its voluntary or involuntary maximum fixed
repurchase price, exclusive of accrued and unpaid dividends;
(viii) all obligations under interest rate swap or similar
agreements or currency hedge, exchange or similar agreements of
such Person; and (ix) any amendment, supplement, modification,
deferral, renewal, extension or refunding of any liability of
the types referred to in clauses (i) through (viii) above. For
purposes hereof, the "maximum fixed repurchase price" of any
Redeemable Capital Stock which does not have a fixed repurchase
price shall be calculated in accordance with the terms of such
Redeemable Capital Stock as if such Redeemable Capital Stock
were purchased on any date on which Indebtedness shall be
required to be determined pursuant to this Indenture, and if
such price is based upon, or measured by, the fair market value
of such Redeemable Capital Stock, such fair market value shall
be determined in good faith by the Board of Directors of the
issuer of such Redeemable Capital Stock.
"Indenture" means this Indenture as amended, restated
or supplemented from time to time.
"Indenture Obligations" means, the obligations of the
Company and any other obligor under this Indenture or under the
Notes, including any Guarantor, if any, to pay principal of,
premium, if any, and interest on the Notes when due and
payable, and all other amounts due or to become due under or in
connection with the Indenture or the Notes and the performance
of all other obligations to the Trustee and the Holders of the
Notes under the Indenture and the Notes, according to the terms
thereof.
"Independent Director" means a director of the
Company other than a director (i) who (apart from being a
director of the Company or any Subsidiaries) is an employee,
insider, associate or Affiliate of the Company or a Subsidiary,
or has held any such position during the previous five years or
(ii) who is a director, an employee, insider, associate or
Affiliate of another party to the transaction in question.
"Institutional Accredited Investor" means an institu
tion that is an "accredited investor" as that term is defined
in Rule 501 (a)(1), (2), (3) or (7) promulgated under the Secu
rities Act.
"Interest Payment Date" means the stated maturity of
an installment of interest on the Notes.
"Investments" means, with respect to any Person,
directly or indirectly, any advance, loan or other extension of
credit or capital contribution to (by means of any transfer of
cash or other property to others or any payment for property or
services for the account or use of others), or any purchase or
acquisition by such Person of any Capital Stock, bonds, notes,
debentures or other securities or assets issued or owed by any
other Person. Investments shall exclude extensions of trade
credit on commercially reasonable terms in accordance with
normal trade practices. For the purpose of making any
calculations under this Indenture (i) Investment shall include
the amount of Investment attributed to any Subsidiary at the
time that such Subsidiary is designated an Unrestricted
Subsidiary and shall exclude the amount of Investment
attributed to any Unrestricted Subsidiary that is designated a
Subsidiary (which exclusion shall be effective upon such
designation) and (ii) any property transferred to or from an
Unrestricted Subsidiary shall be valued at Fair Market Value at
the time of such transfer; provided that in each case, the Fair
Market Value of an asset or property shall be as determined by
the Board of Directors of the Company in good faith.
"Issue Date" means the date the Notes are first
issued by the Company and authenticated by the Trustee under
this Indenture.
"Johnsen Family" means (i) Niels W. Johnsen and Erik
F. Johnsen, (ii) the wives and issue of Niels W. Johnsen and
Erik F. Johnsen and (iii) any Affiliate of any of the
foregoing.
"Joint Venture Entity" means any Person in which the
Company (directly or indirectly) owns at least a 50% interest
and the remaining interest is owned by Persons who are not
Affiliates of the Company or of any Affiliate of the Company.
"Lien" means any lien, mortgage, charge, pledge,
security interest, or other encumbrance of any kind (including
any conditional sale or other title retention agreement and any
lease in the nature thereof).
"Maturity Date" means October 15, 2007.
"Medium or Long Term Contract" means a contract with
a duration of more than three years (without taking into
account any extension options).
"Moody's" means Moody's Investors Service, Inc. and
its successors.
"Net Cash Proceeds" means, with respect to any Asset
Sale, the proceeds thereof in the form of cash or cash
equivalents including payments in respect of deferred payment
obligations when received in the form of, or stock or other
assets when disposed of for, cash or cash equivalents (except
to the extent that such obligations are financed or sold with
recourse to the Company or any Subsidiary) net of (i) brokerage
commissions and other reasonable fees and expenses (including
fees and expenses of counsel and investment bankers) related to
such Asset Sale, (ii) provisions for all taxes payable as a
result of such Asset Sale, (iii) payments made to retire
Indebtedness where the Holder of such Indebtedness has a
security interest in the asset sold in the Asset Sale,
(iv) amounts required to be paid to any Person (other than the
Company or any Subsidiary) owning a beneficial interest in the
assets subject to the Asset Sale and (v) appropriate amounts to
be provided by the Company or any Subsidiary, as the case may
be, in accordance with GAAP, against any liabilities associated
with such Asset Sale and retained by the Company or any
Subsidiary, as the case may be, after such Asset Sale,
including, without limitation, pension and other
post-employment benefit liabilities, liabilities related to
environmental matters and liabilities under any indemnification
obligations associated with such Asset Sale, all as reflected
in an officers' certificate delivered to the Trustee.
"Non-U.S. Person" means a person who is not a U.S.
person, as defined in Regulation S.
"Notes" means the Company's 7 3/4% Senior Notes due
2007 that are issued on the Issue Date or subsequent to the
Issue Date under this Indenture, as amended or supplemented
from time to time pursuant to this Indenture and, when and if
issued, the Company's 7 3/4% Senior Notes due 2007 to be issued
pursuant to the Registration Rights Agreement as contemplated
hereunder.
"Offering Memorandum" means the Confidential Offering
Memorandum dated January 14, 1998 pursuant to which the Notes
were offered.
"Officer" means, with respect to any Person, the
Chairman of the Board of Directors, the President, the Chief
Financial Officer, any Executive Vice President, the Treasurer
or the Controller of such Person.
"Officers' Certificate" means, with respect to any
Person, a certificate signed by two Officers or by an Officer
and an Assistant Treasurer of such Person.
"Opinion of Counsel" means a written opinion from
legal counsel reasonably acceptable to the Trustee. Such legal
counsel shall be outside counsel and not an employee of or
in-house counsel to the Company.
"Pari Passu Indebtedness" means Indebtedness of the
Company ranking pari passu in right of payment with the Notes.
"Permitted Indebtedness" means (i) Indebtedness of
the Company or any of its Subsidiaries outstanding on the date
of the Indenture and not repaid out of the proceeds of the
Offering; (ii) Indebtedness of the Company pursuant to the
Notes originally issued on the Issue Date; (iii) Indebtedness
of the Company under one or more Bank Credit Agreements in an
aggregate principal amount at any one time outstanding not to
exceed $50,000,000; (iv) Indebtedness incurred in relation to
the provision of bonds, guarantees, letters of credit or
similar obligations required by the United States Federal
Maritime Commission or other governmental or regulatory
agencies in connection with Vessels owned or business conducted
by the Company or any Subsidiary; (v) Indebtedness of the
Company or any Subsidiary to finance the replacement of a
Vessel upon a total loss, destruction, condemnation,
confiscation, requisition, seizure, forfeiture or other taking
of title to or use of such Vessel (provided that such
condemnation, confiscation, requisition, seizure, forfeiture or
other taking of title to or use of such Vessel does not arise
out of any misconduct or negligent omission by the Company or
any of its Subsidiaries) (collectively, a "Total Loss") in an
aggregate amount up to the contract price for such replacement
Vessel less all compensation, damages and other payments
(including insurance proceeds other than in respect of business
interruption insurance) received by the Company or any
Subsidiary 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; (vi) Indebtedness of
the Company or any Subsidiary incurred to finance the
construction or acquisition of one or more Vessels in the
aggregate principal amount outstanding at any time (including
any renewals, extensions, substitutions, refundings,
refinancings or replacements thereof pursuant to clause (viii)
below) of up to $100,000,000 (in addition to any such
Indebtedness that was not incurred as Permitted Indebtedness as
determined at the time of incurrence by the Board of Directors
and evidenced by a Board Resolution); provided that (x) with
respect to Indebtedness incurred to finance the construction of
any such Vessel, such Indebtedness does not exceed 80% of the
contract price for such Vessel, (y) with respect to
Indebtedness incurred to finance the acquisition of any such
Vessel, such Indebtedness does not exceed the lesser of (i) the
contract price for the acquisition of such Vessel or (ii) the
fair market value of such Vessel at the time of acquisition and
(z) each such Vessel is to be initially employed (after giving
effect to any intermediary intercompany transactions) pursuant
to a then existing binding Medium or Long-Term Contract with a
third party who is not an Affiliate of the Company or a then
existing binding contract with the United States Military
Sealift Command that has a term (including any extensions at
the option of the United States Military Sealift Command) of at
least three years; (vii) any guarantees of Indebtedness of the
Company by a Subsidiary entered into in accordance with
Section 4.11 of this Indenture; (viii) any renewals,
extensions, substitutions, refundings, refinancings or
replacements of any Indebtedness described in clauses (i),
(ii), (v) and (vi) of this definition, including any successive
renewals, extensions, substitutions, refundings, refinancings
or replacements so long as such renewal, extension,
substitution, refunding, refinancing or replacement does not
result in an increase in the aggregate principal amount of the
outstanding Indebtedness represented thereby (plus the amount
of any premium required to be paid under the terms of the
instrument governing the Indebtedness being so renewed,
extended, substituted, refunded, refinanced or replaced) and,
in the case of the Notes or any extension, renewal, refunding,
refinancing, or replacement thereof, does not change the Stated
Maturity of any payment of principal thereof to a date earlier
than the Stated Maturity existing at the time of such
extension, renewal, refunding, refinancing or replacement; (ix)
Indebtedness of the Company owing to and held by any Subsidiary
of the Company or Indebtedness of a Subsidiary owing to and
held by the Company or any other Subsidiary of the Company;
provided, however, that any subsequent transfer or any other
event which results in any such Subsidiary ceasing to be a
Subsidiary of the Company or any subsequent transfer of any
such Indebtedness (except to the Company or another Subsidiary)
would be deemed, in each case, to constitute the incurrence of
such Indebtedness by the issuer thereof; (x) any guarantee of
Indebtedness permitted to be incurred under the Indenture;
provided that any Guarantor complies with Section 4.11 of this
Indenture; and (xi) Indebtedness of the Company or a Subsidiary
not covered by any other clause of this definition not to
exceed an aggregate principal amount at any time outstanding of
$50,000,000 (as determined at the time of issuance by the Board
of Directors and evidenced by a Board Resolution).
"Permitted Investment" means (i) Investments in any
of the Notes or any Guarantees; (ii) Temporary Cash
Investments; (iii) Investments by the Company in or to any
Subsidiary of the Company and Investments by a Subsidiary of
the Company in or to the Company or a Subsidiary of the Company
(or a person who becomes a Subsidiary as a result of such
Investment or who merges or consolidates into the Company or a
Subsidiary of the Company); (iv) loans or advances not in
excess of $1 million outstanding in the aggregate at any time
to employees in the ordinary course of business;
(v) Investments acquired or retained from another Person in
connection with any Asset Sale or other disposition of assets
to such Person; (vi) Investments by any Subsidiary or any
Unrestricted Subsidiary in the Company; (vii) Investments in an
Unrestricted Subsidiary to the extent permitted under clauses
(i)(x) and (ii) of Section 4.19 of this Indenture (it being
understood that any Investment in an Unrestricted Subsidiary
made in reliance upon clause (i)(y) thereunder shall not be
deemed to be a Permitted Investment); and (viii) Investments
not to exceed 5% of the Company's Consolidated Net Tangible
Assets at the time of determination.
"Person" means any individual, corporation, limited
or general partnership, joint venture, association, joint stock
company, trust, unincorporated organization or government or
any agency or political subdivision thereof.
"Preferred Stock" means, with respect to any Person,
any and all shares, interests, participations or other
equivalents (however designated) of such Person's preferred
stock whether now outstanding, or issued after the date of the
Indenture, and including, without limitation, all classes and
series of preferred stock.
"Private Placement Legend" means the legend initially
set forth on the Notes in the form set forth on Exhibit A.
"Qualified Capital Stock" of any Person means any and
all Capital Stock of such Person other than Redeemable Capital
Stock.
"Qualified Institutional Buyer" or "QIB" shall have
the meaning specified in Rule 144A promulgated under the Secu
rities Act.
"Redeemable Capital Stock" means any Capital Stock
that, either by its terms, by the terms of any security into
which it is convertible or exchangeable or otherwise, is, or
upon the happening of an event or passage of time would be,
required to be redeemed prior to the final Stated Maturity of
the Notes or is redeemable at the option of the Holder thereof
at any time prior to such final Stated Maturity, or is
convertible into or exchangeable for debt securities at any
time prior to such final Stated Maturity.
"Registration Rights Agreement" means the Registra
tion Rights Agreement dated as of January 22, 1998 among the
Company, and Citicorp Securities, Inc., Citibank Canada Securi
ties Limited and Citibank International plc, as Initial
Purchasers.
"Regulation S" means Regulation S promulgated under
the Securities Act.
"Responsible Officer" when used with respect to the
Trustee, means any officer within the corporate trust
department of the Trustee (or any successor group of the Trus
tee) or any other officer of the Trustee customarily performing
functions similar to those performed by any of the above desig
nated officers and also means, with respect to a particular
corporate trust matter, any other officer to whom such matter
is referred because of his knowledge of and familiarity with
the particular subject.
"Restricted Security" has the meaning set forth in
Rule 144(a)(3) promulgated under the Securities Act; provided
that the Trustee shall be entitled to request and conclusively
rely upon an Opinion of Counsel with respect to whether any
Note is a Restricted Security.
"Rule 144A" means Rule 144A promulgated under the
Securities Act.
"S&P" means Standard & Poor's Corporation and its
successors.
"Securities Act" means the Securities Act of 1933, as
amended.
"Significant Subsidiary" means any Subsidiary
(including its subsidiaries) of the Company which at the time
of determination meets any of the following conditions: (1) the
Company's and its other Subsidiaries' investments in the
Subsidiary exceeds 10% of the total assets of the Company and
its Subsidiaries Consolidated as of the end of the most
recently completed fiscal year; (2) the Company's and its other
Subsidiaries' proportionate share of the total assets (after
intercompany eliminations) of the Subsidiary exceeds 10% of the
total assets of the Company and its Subsidiaries Consolidated
as of the end of the most recently completed fiscal year; or
(3) the Company's and its other Subsidiaries' equity in the
income from continuing operations before income taxes,
extraordinary items and cumulative effect of a change in
accounting principle of the Subsidiary exceeds 10% of such
income of the Company and its Subsidiaries Consolidated for the
most recently completed fiscal year.
"Stated Maturity" when used with respect to any Note
or any installment of interest thereon, means the dates
specified in such Note as the fixed date on which the principal
of such Note or such installment of interest is due and
payable, and when used with respect to any other Indebtedness,
means the date specified in the instrument governing such
Indebtedness as the fixed date on which the principal of such
Indebtedness or any installment of interest is due and payable.
"Subordinated Indebtedness" means Indebtedness of the
Company which is subordinated in right of payment to the Notes.
"Subsidiary," with respect to any Person, means (i)
any corporation of which the outstanding Capital Stock having
at least a majority of the votes entitled to be cast in the
election of directors under ordinary circumstances shall at the
time be owned, directly or indirectly, by such Person or (ii)
any other Person (other than a corporation) including a
partnership in which the Company, a Subsidiary of the Company
or the Company and a Subsidiary of the Company, directly or
indirectly, at the date of determination thereof, has at least
a majority ownership interest. For the purposes of this
Indenture, an Unrestricted Subsidiary shall not be deemed a
subsidiary of the Company.
"Temporary Cash Investments" means any of the
following: (i) any investment in direct obligations of the
United States of America or any agency thereof or obligations
guaranteed by the United States of America or any agency
thereof, in each case, maturing within 360 days of the date of
acquisition thereof, (ii) investments in time deposit accounts,
certificates of deposit and money market deposits maturing
within 180 days of the date of acquisition thereof issued by a
bank or trust company which is organized under the laws of the
United States of America, any state thereof or any foreign
country recognized by the United States having capital, surplus
and undivided profits aggregating in excess of $300,000,000 and
whose debt is rated "A" (or such similar equivalent rating) or
higher by at least one nationally recognized statistical rating
organization (as defined in Rule 436 under the Securities Act),
(iii) repurchase obligations with a term of not more than
30 days for underlying securities of the types described in
clause (i) above entered into with a bank meeting the
qualifications described in clause (ii) above and
(iv) investments in commercial paper, maturing not more than
90 days after the date of acquisition, issued by a corporation
(other than an Affiliate or Subsidiary of the Company)
organized in existence under the laws of the United States of
America or any foreign country recognized by the United States
of America with a rating at the time as of which any investment
therein is made of "P-2" (or higher) according to Moody's or
"A-2" (or higher) according to S&P.
"TIA" means the Trust Indenture Act of 1939 (15 U.S.
Code sections 77aaa-77bbbb) as in effect on the date of this
Indenture (except as provided in Section 8.03 hereof).
"Title XI Financing" means any Indebtedness incurred
by the Company or any Subsidiary which is guaranteed by the
United States (or any agency thereof) pursuant to Title XI of
the Merchant Marine Act of 1936, as amended.
"Trust Officer" means any officer or assistant offi
cer of the Trustee assigned by the Trustee to administer trust
accounts.
"Trustee" means the party named as such in this
Indenture until a successor replaces it pursuant to this Inden
ture and thereafter means the successor.
"Unrestricted Subsidiary" means (1) any subsidiary of
the Company that at the time of determination shall be an
Unrestricted Subsidiary (as designated by the Board of
Directors of the Company, as provided below) and (2) any
subsidiary of an Unrestricted Subsidiary. The Board of
Directors of the Company may designate any subsidiary of the
Company (including any newly acquired or newly formed
subsidiary) to be an Unrestricted Subsidiary if all of the
following conditions apply: (a) such subsidiary is not liable,
directly or indirectly, with respect to any Indebtedness other
than Unrestricted Subsidiary Indebtedness and (b) any
Investment in such subsidiary (which shall be deemed to be made
as a result of designating such subsidiary an Unrestricted
Subsidiary) shall not violate the provisions of Section 4.19 of
this Indenture. Any such designation by the Board of Directors
of the Company shall be evidenced to the Trustee by filing with
the Trustee a Board Resolution giving effect to such
designation and an Officers' Certificate certifying that such
designation complies with the foregoing conditions. The Board
of Directors of the Company may designate any Unrestricted
Subsidiary as a Subsidiary; provided that immediately after
giving effect to such designation, the Company could incur
$1.00 of additional Indebtedness (other than Permitted
Indebtedness) pursuant to the restrictions under Section 4.06
of this Indenture.
"Unrestricted Subsidiary Indebtedness" of any
Unrestricted Subsidiary means Indebtedness of such Unrestricted
Subsidiary (a) as to which neither the Company nor any
Subsidiary is directly or indirectly liable (by virtue of the
Company or any such Subsidiary being the primary obligor on,
guarantor of, or otherwise liable in any respect to, such
Indebtedness), except to the extent the Company or any
Subsidiary is permitted to incur, create or assume any
guarantee of Indebtedness of any Affiliate pursuant to the
provisions under Section 4.07 of this Indenture, in which case
the Company shall be deemed to have made a Restricted Payment
equal to the principal amount of any such Indebtedness to the
extent guaranteed and (b) which, upon the occurrence of a
default with respect thereto, does not result in, or permit any
holder of any Indebtedness of the Company or any Subsidiary to
declare, a default on such Indebtedness of the Company or any
Subsidiary or cause the payment thereof to be accelerated or
payable prior to its Stated Maturity.
"U.S. Government Obligations" means (a) securities
that are direct obligations of the United States of America for
the payment of which its full faith and credit are pledged or
(b) obligations of a Person controlled or supervised by and
acting as an agency or instrumentality of the United States of
America, the payment of which is unconditionally guaranteed as
a full faith and credit obligation by the United States of
America, which, in either case, are not callable or redeemable
at the option of the issuer thereof, and shall also include a
depository receipt issued by a bank (as defined in Section
3(a)(2) of the Securities Act) as custodian with respect to any
such U.S. Government Obligation or a specific payment of prin
cipal of or interest on any such U.S. Government Obligation
held by such custodian for the account of the holder of such
depository receipt; provided that (except as required by law)
such custodian is not authorized to make any deduction from the
amount payable to the holder of such depository receipt from
any amount received by the custodian in respect of the U.S.
Government Obligation or a specific payment of principal or
interest on any such U.S. Government Obligation held by such
custodian for the account of the holder of such depository
receipt.
"Vessels" means the shipping vessels owned by and
registered in the name of the Company or any of its
Subsidiaries or operated by the Company pursuant to a lease or
other operating agreement constituting a Capital Lease
Obligation.
"Voting Stock" means stock of the class or classes
pursuant to which the holders thereof have the general voting
power under ordinary circumstances to elect at least a majority
of the board of directors, managers or trustees of a
corporation (irrespective of whether or not at the time stock
of any other class or classes shall have or might have voting
power by reason of the happening of any contingency).
"Wholly Owned Subsidiary" means a Subsidiary all the
Capital Stock of which (other than Directors Qualifying Shares)
is owned by the Company or another Wholly Owned Subsidiary of
the Company.
Section 1.02. Other Definitions.
-----------------
The definitions of the following terms may be found
in the sections indicated as follows:
Term Defined in Section
---- ------------------
"Agent Members" 2.14
"Business Day" 10.08
"Covenant Defeasance" 9.03
"Deficiency" 4.08
"Event of Default" 6.01
"Excess Proceeds" 4.08
"Global Notes" 2.01
"Guarantee" 4.11
"Guarantor" 4.11
"incur" 4.06
"Legal Defeasance" 9.02
"Legal Holiday" 10.08
"Note Amount" 4.08
"Offer" 4.08
"Offered Price" 4.08
"Offshore Physical Notes" 2.01
"Paying Agent" 2.03
"Physical Notes" 2.01
"Registered Exchange" 2.02
"Registrar" 2.03
"Regulation S Global Notes" 2.01
"Restricted Payments" 4.07
"Rule 144A Global Note" 2.01
"Surviving Entity" 5.01
"Transaction Survivor" 5.01
"U.S. Physical Notes" 2.01
Section 1.03. Incorporation by Reference
of Trust Indenture Act.
--------------------------
Whenever this Indenture refers to a provision of the
TIA, the portion of such provision required to be incorporated
herein in order for this Indenture to be qualified under the
TIA is incorporated by reference in and made a part of this
Indenture. The following TIA terms used in this Indenture have
the following meanings:
"indenture securities" means the Notes.
"indenture securityholder" means a Holder or
Noteholder.
"indenture to be qualified" means this Indenture.
"indenture trustee" or "institutional trustee" means
the Trustee.
"obligor on the indenture securities" means the Com
pany, or any other obligor on the Notes.
All other terms used in this Indenture that are
defined by the TIA, defined in the TIA by reference to another
statute or defined by Commission rule have the meanings therein
assigned to them.
Section 1.04. Rules of Construction.
----------------------
Unless the context otherwise requires:
(1) a term has the meaning assigned to it herein,
whether defined expressly or by reference;
(2) an accounting term not otherwise defined has the
meaning assigned to it in accordance with GAAP;
(3) "or" is not exclusive;
(4) words in the singular include the plural, and in
the plural include the singular; and
(5) words used herein implying any gender shall
apply to every gender.
ARTICLE 2
THE NOTES
Section 2.01. Dating; Incorporation of Form in Indenture.
-------------------------------------------
The Notes and the Trustee's certificate of authenti
cation shall be substantially in the form of Exhibit A which is
incorporated in and made part of this Indenture. The Notes may
have notations, legends or endorsements required by law, stock
exchange rule or usage. The Company may use "CUSIP" numbers in
issuing the Notes. The Company shall approve the form of the
Notes. Each Note shall be dated the date of its
authentication.
The Notes offered and sold (i) in reliance on
Rule 144A shall be issued initially in the form of one or more
permanent global Notes in registered form (the "Rule 144A
Global Notes"), (ii) pursuant to Regulation S shall be issued
initially in the form of one or more permanent global Notes in
registered form (the "Regulation S Global Notes" and, together
with the Rule 144A Global Notes, the "Global Notes"), in each
case substantially in the form set forth in Exhibit A,
deposited with the Trustee, as custodian for the Depository,
duly executed by the Company and authenticated by the Trustee
as hereinafter provided and shall bear the legend set forth on
Exhibit B. The aggregate principal amount of any Global Note
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 offered and sold in offshore transactions in
reliance on Regulation S may be issued in the form of certifi
cated Notes in registered form set forth in Exhibit A (the
"Offshore Physical Notes"). Notes offered and sold in reliance
on Rule 144A may each also be issued, in the form of
certificated Notes in registered form in substantially the form
set forth in Exhibit A (the "U.S. Physical Notes"). The
Offshore Physical Notes and the U.S. Physical Notes are
sometimes collectively herein referred to as the "Physical
Notes."
Section 2.02. Execution and Authentication.
-----------------------------
The Notes shall be executed on behalf of the Company
by two Officers of the Company or an Officer and an Assistant
Secretary of the Company. Such signature may be either manual
or facsimile.
If an Officer whose signature is on a Note no longer
holds that office at the time the Trustee authenticates the
Note, the Note shall be valid nevertheless.
A Note shall not be valid until the Trustee manually
signs the certificate of authentication on the Note. Such sig
nature shall be conclusive evidence that the Note has been
authenticated under this Indenture.
The Trustee or an authenticating agent shall authen
ticate Notes for original issue in the aggregate principal
amount not to exceed $160,000,000 upon a Company Request in one
or more series, provided that the aggregate principal amount of
Notes on the Issue Date shall not exceed $110,000,000. The
aggregate principal amount of Notes outstanding at any time may
not exceed such amount except as provided in Section 2.07
hereof. Upon receipt of the Company Request, the Trustee shall
authenticate an additional series of Notes in an aggregate
principal amount not to exceed $160,000,000 for issuance in
exchange for all Notes previously issued pursuant to an
exchange offer registered under the Securities Act (a
"Registered Exchange") or pursuant to a Private Exchange (as
defined in the Registration Rights Agreement), provided that
the aggregate principal amount of Exchange Notes in exchange
for the Notes originally issued on the Issue Date shall not
exceed $110,000,000. Exchange Notes (as defined in the Regis
tration Rights Agreement) may have such distinctive series des
ignation and "CUSIP" numbers as and such changes in the form
thereof as are specified in the Company Request referred to in
the preceding sentence. Exchange Notes issued pursuant to a
Registered Exchange shall not bear the Private Placement Leg
end. The Notes shall be issuable only in registered form with
out coupons and only in denominations of $1,000 and integral
multiples thereof.
The Trustee may appoint an authenticating agent to
authenticate Notes. Any such appointment shall be evidenced by
an instrument signed by an authorized officer of the Trustee, a
copy of which shall be furnished to the Company. An authenti
cating 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 authenticat
ing agent has the same right as an Agent to deal with the Com
pany or an Affiliate.
Section 2.03. Registrar and Paying Agent.
---------------------------
The Company shall maintain an office or agency where
Notes may be presented for registration of transfer or for
exchange ("Registrar"), an office or agency located in the Bor
ough of Manhattan, City of New York, State of New York where
Notes may be presented for payment ("Paying Agent") and an
office or agency where notices and demands to or upon the Com
pany in respect of the Notes and this Indenture may be served.
The Registrar shall keep a register of the Notes and of their
transfer and exchange. The Registrar shall provide the Company
a current copy of such register from time to time upon request
of the Company. The Company may have one or more co-registrars
and one or more additional paying agents. Neither the Company
nor any Affiliate may act as Paying Agent. The Company may
change any Paying Agent, Registrar or co-registrar without
notice to any Noteholder.
The Company shall enter into an appropriate agency
agreement with any Registrar or Paying Agent not a party to
this Indenture. The agreement shall implement the provisions
of this Indenture that relate to such Agent. The Company shall
notify the Trustee of the name and address of any such Agent.
If the Company fails to maintain a Registrar or Paying Agent,
or agent for service of notices and demands, or fails to give
the foregoing notice, the Trustee shall act as such. The Com
pany initially appoints the Trustee as Registrar, Paying Agent
and agent for service of notices and demands in connection with
the Notes.
Section 2.04. Paying Agent To Hold Money in Trust.
------------------------------------
On or before each due date of the principal of and
interest on any Notes, the Company shall deposit with the Pay
ing Agent a sum sufficient to pay such principal and interest
so becoming due. The Company at any time may require a Paying
Agent to pay all money held by it to the Trustee and the Trus
tee may at any time during the continuance of any payment
default, upon written request to a Paying Agent, require such
Paying Agent to forthwith pay to the Trustee all sums so held
in trust by such Paying Agent together with a complete account
ing of such sums. Upon doing so, the Paying Agent shall have
no further liability for the money.
Section 2.05. Noteholder Lists.
-----------------
The Trustee shall preserve in as current a form as is
reasonably practicable the most recent list available to it of
the names and addresses of Noteholders. If the Trustee is not
the Registrar, the Company shall furnish to the Trustee on or
before each April 1 and October 1 in each year, and at such
other times as the Trustee may request in writing, a list in
such form and as of such date as the Trustee may reasonably
require of the names and addresses of Noteholders.
Section 2.06. Transfer and Exchange.
----------------------
When a Note is presented to the Registrar with a
request to register the transfer thereof, the Registrar shall
register the transfer as requested if the requirements of
applicable law are met and, when Notes are presented to the
Registrar with a request to exchange them for an equal princi
pal amount of Notes of other authorized denominations, the Reg
istrar shall make the exchange as requested; provided that
every Note presented or surrendered for registration of
transfer or exchange shall be duly endorsed, or be accompanied
by a written instrument of transfer in form satisfactory to the
Company and the Registrar duly executed by the Holder thereof
or his attorney duly authorized in writing. To permit
transfers and exchanges, upon surrender of any Note for
registration of transfer at the office or agency maintained
pursuant to Section 2.03 hereof, the Company shall execute and
the Trustee shall authenticate Notes at the Registrar's
request. Any exchange or transfer shall be without charge,
except that the Company may require payment by the Holder of a
sum sufficient to cover any tax or other governmental charge
that may be imposed in relation to a transfer or exchange, but
this provision shall not apply to any exchange pursuant to
Sections 2.09 or 8.05 hereof. The Trustee shall not be
required to register transfers of Notes or to exchange Notes
for a period of 15 days before selection of any Notes to be
redeemed. The Trustee shall not be required to exchange or
register transfers of any Notes called or being called for
redemption in whole or in part, except the unredeemed portion
of any Note being redeemed in part.
Any Holder of the Global Note shall, by acceptance of
such Global Note, agree that transfers of the beneficial inter
ests in such Global Note may be effected only through a book
entry system maintained by the Holder of such Global Note (or
its agent), and that ownership of a beneficial interest in the
Global Note shall be required to be reflected in a book entry.
Each Holder of a Note agrees to indemnify the Company
and the Trustee against any liability that may result from the
transfer, exchange or assignment of such Holder's Note in vio
lation of any provision of this Indenture and/or applicable
U.S. Federal or state securities law.
Prior to the due presentation for registration of
transfer of any Note, the Company, the Trustee, the Paying
Agent, the Registrar or any co-registrar may deem and treat the
Person in whose name a Note is registered as the absolute owner
of such Note for the purpose of receiving payment of principal
of and interest, if any, on such Note and for all other
purposes whatsoever, whether or not such Note is overdue, and
none of the Company, the Trustee, the Paying Agent, the
Registrar or any co-registrar shall be affected by notice to
the contrary.
All Notes issued upon any transfer or exchange
pursuant to this Section 2.06 will evidence the same debt and
will be entitled to the same benefits under this Indenture as
the Notes surrendered upon such transfer or exchange.
Section 2.07. Replacement Notes.
------------------
If a mutilated Note is surrendered to the Trustee or
if the Holder of a Note presents evidence to the satisfaction
of the Company and the Trustee that the Note has been lost,
destroyed or wrongfully taken, the Company shall issue and the
Trustee shall authenticate a replacement Note if the require
ments of Section 8-405 of the New York Uniform Commercial Code
as in effect on the date of this Indenture are met. An indem
nity bond may be required by the Company or the Trustee that is
sufficient in the judgment of 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. In every
case of destruction, loss or theft, the applicant shall also
furnish to the Company and to the Trustee evidence to their
satisfaction of the destruction, loss or the theft of such Note
and the ownership thereof. The Company and the Trustee may
charge for their expenses (including reasonable attorneys' fees
and expenses) in replacing a Note. Every replacement Note is
an additional obligation of the Company. In the event any such
mutilated, lost, destroyed or wrongfully taken Note has become
due and payable, the Company in its discretion may pay such
Note instead of issuing a new Note in replacement thereof. The
provisions of this Section 2.07 are exclusive and shall
preclude (to the extent lawful) all other rights and remedies
with respect to replacement or payment of mutilated, lost,
destroyed or wrongfully taken Notes.
Section 2.08. Outstanding Notes.
------------------
Notes outstanding at any time are all Notes authenti
cated by the Trustee except for those cancelled by it, those
delivered to it for cancellation, and those described in this
Section 2.08 as not outstanding.
If a Note is replaced pursuant to Section 2.07, it
ceases to be outstanding until the Company and the Trustee
receive proof satisfactory to each of them that the replaced
Note is held by a bona fide purchaser.
If a Paying Agent holds on the Maturity Date money
sufficient to pay the principal of, premium, if any, and
accrued interest on Notes payable on that date, then on and
after that date, such Notes cease to be outstanding and
interest on them ceases to accrue.
Subject to Section 10.06, a Note does not cease to be
outstanding solely because the Company or an Affiliate holds
the Note.
Section 2.09. Temporary Notes.
----------------
Until definitive Notes are ready for delivery, the
Company may prepare and the Trustee shall authenticate tempo
rary Notes. Temporary Notes shall be substantially in the
form, and shall carry all rights, of definitive Notes but may
have variations that the Company considers appropriate for tem
porary Notes. Without unreasonable delay, the Company shall
prepare and the Trustee shall authenticate definitive Notes in
exchange for temporary Notes upon surrender of such temporary
Notes at the office or agency maintained pursuant to Section
2.03 hereof.
Section 2.10. 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 shall cancel and
return such Notes to the Company in accordance with its normal
practice, all Notes surrendered for transfer, exchange, payment
or cancellation and if such Notes are destroyed, deliver a
certificate of destruction to the Company unless the Company
instructs the Trustee in writing to deliver the Notes to the
Company. Subject to Section 2.07 hereof, the Company may not
issue new Notes to replace Notes in respect of which it has
previously paid all principal, premium and interest accrued
thereon, or delivered to the Trustee for cancellation.
Section 2.11. Defaulted Interest.
-------------------
If the Company defaults in a payment of interest on
the Notes, it shall pay the defaulted amounts, plus any inter
est payable on defaulted amounts pursuant to Section 4.01
hereof, to the persons who are Noteholders on a subsequent spe
cial record date. The Company shall fix the special record
date and payment date in a manner satisfactory to the Trustee
and provide the Trustee at least 20 days notice of the proposed
amount of defaulted interest to be paid and the special payment
date. At least 15 days before the special record date, the
Company shall mail or cause to be mailed to each Noteholder at
his address as it appears on the Notes register maintained by
the Registrar a notice that states the special record date, the
payment date (which shall be not less than five nor more than
ten days after the special record date), and the amount to be
paid. In lieu of the foregoing procedures, the Company may pay
defaulted interest in any other lawful manner not inconsistent
with the requirements of any securities exchange on which the
Notes may be listed, and upon such notice as may be required by
such exchange if, after written notice given by the Company to
the Trustee of such proposed method of payment, such payment
shall be deemed satisfactory to the Trustee.
Section 2.12. Deposit of Moneys.
------------------
Prior to 12:00 noon, New York City time, on each
Interest Payment Date and Maturity 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 or Maturity Date, as the case may be, in
a timely manner which permits the Trustee to remit payment to
the Holders on such Interest Payment Date or Maturity Date, as
the case may be. The principal and interest on Global Notes
shall be payable to the Depository or its nominee, as the case
may be, as the sole registered owner and the sole Holder of the
Global Notes represented thereby. The principal and interest
on Notes in certificated form shall be payable at the office of
the Paying Agent.
Section 2.13. CUSIP Number.
-------------
The Company in issuing the Notes may use a "CUSIP"
number(s), and if so, the Trustee shall use the CUSIP number(s)
in notices of redemption or exchange as a convenience to
Holders, provided that any such notice may state that no
representation is made as to the correctness or accuracy of the
CUSIP number(s) 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 or exchange shall
not be affected by any defect in or omission of such number(s).
Section 2.14. Book-Entry Provisions for Global Notes.
---------------------------------------
(a) The Global Notes initially shall (i) be regis
tered in the name of the Depository or the nominee of such
Depository, (ii) be delivered to the Trustee as custodian for
such Depository and (iii) bear legends as set forth in
Exhibit B.
Members of, or participants in, the Depository
("Agent Members") 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 Glo
bal 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 its Agent Members, the operation of custom
ary 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 suc
cessors or their respective nominees. Interests of beneficial
owners in the Global Notes may be transferred or exchanged for
Physical Notes and Physical Notes may be transferred or
exchanged for beneficial interests in Global Notes, in each
case, in accordance with the rules and procedures of the
Depository and the provisions of Section 2.15. In addition,
Physical Notes shall be issued to all beneficial owners in
exchange for their beneficial interests in Global Notes if
(i) the Depository notifies the Company that it is unwilling or
unable to continue as Depository for any Global Note and a
successor depositary 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
written request from the Depository to issue Physical Notes.
(c) In connection with any transfer or exchange of a
portion of the beneficial interest in any Global Note to bene
ficial owners pursuant to paragraph (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 the Global Note in an amount equal to the principal
amount of the beneficial interest in the Global Note to be
transferred or exchanged, and the Company shall execute, and
the Trustee shall upon receipt of a written order from the
Company authenticate and make available for delivery, one or
more Physical Notes of like tenor and amount.
(d) In connection with the transfer of Global Notes
as an entirety to beneficial owners pursuant to paragraph (b),
the Global Notes shall be deemed to be surrendered to the Trus
tee for cancellation, and the Company shall execute, and the
Trustee shall authenticate and deliver, to each beneficial
owner identified by the Depository in writing in exchange for
its beneficial interest in the Global Notes, 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), (c) or (d) shall, except as other
wise provided by paragraphs (a)(i)(x) and (c) of Section 2.15,
bear the Private Placement Legend.
(f) The Holder of any Global Note may grant proxies
and otherwise authorize any Person, including Agent Members and
Persons that may hold interests through Agent Members, to take
any action which a Holder is entitled to take under this Inden
ture or the Notes.
Section 2.15. Special Transfer Provisions.
----------------------------
(a) Transfers to Non-QIB Institutional Accredited
Investors and Non-U.S. Persons. The following provisions shall
apply with respect to the registration of any proposed transfer
of a Note constituting a Restricted Security to any Institu
tional Accredited Investor which is not a QIB or to any Non-
U.S. Person:
(i) the Registrar shall register the transfer of any
Note constituting a Restricted Security, whether or not
such Note bears the Private Placement Legend, if (x) the
requested transfer is subsequent to a date which is two
years after the later of the Issue Date and the last date
on which the Company or any of its Affiliates was the
owner of such Note or (y) (1) in the case of a transfer to
an Institutional Accredited Investor which is not a QIB
(excluding Non-U.S. Persons), the proposed transferee has
delivered to the Registrar a certificate substantially in
the form of Exhibit C hereto or (2) in the case of a
transfer to a Non-U.S. Person (including a QIB), the pro
posed transferor has delivered to the Registrar a certifi
cate substantially in the form of Exhibit D hereto; and
(ii) if the proposed transferor is an Agent Member
holding a beneficial interest in a Global Note, upon
receipt by the Registrar of (x) the certificate, if any,
required by paragraph (i) above and (y) instructions given
in accordance with the Depository's and the Registrar's
procedures,
whereupon (a) the Registrar shall reflect on its books and
records the date and (if the transfer does not involve a trans
fer of outstanding Physical Notes) a decrease in the principal
amount of a Global Note in an amount equal to the principal
amount of the beneficial interest in a Global Note to be trans
ferred, and (b) the Company shall execute and the Trustee shall
authenticate and make available for delivery one or more Physi
cal Notes of like tenor and amount.
(b) Transfers to QIBs. The following provisions
shall apply with respect to the registration of any proposed
transfer of a Note constituting a Restricted Security to a QIB
(excluding transfers to Non-U.S. Persons):
(i) the Registrar shall register the transfer if
such transfer is being made by a proposed transferor who
has checked the box provided for on the form of Note stat
ing, or has otherwise advised the Company and the Regis
trar 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 form of Note
stating, or has otherwise advised the Company and the Reg
istrar in writing, that it is purchasing the Note for its
own account or an account with respect to which it exer
cises 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 144A and acknowledges that it has received such
information regarding the Company as it has requested pur
suant 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; and
(ii) if the proposed transferee is an Agent Member,
and the Notes to be transferred consist of Physical Notes
which after transfer are to be evidenced by an interest in
the Global Note, upon receipt by the Registrar of instruc
tions 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 princi
pal amount of the Global Note in an amount equal to the
principal amount of the Physical Notes to be transferred,
and the Trustee shall cancel the Physical Notes so
transferred.
(c) Private Placement Legend. Upon the transfer,
exchange or replacement of Notes not bearing the Private Place
ment Legend, 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 Place
ment Legend unless (i) the circumstances contemplated by
paragraph (a)(i)(x) of this Section 2.15 exist, (ii) there is
delivered to the Registrar 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 provi
sions of the Securities Act or (iii) such Note has been sold
pursuant to an effective registration statement under the Secu
rities Act.
(d) 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 will 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 2.14 or this Section 2.15. 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 notice to the Registrar.
ARTICLE 3
REDEMPTION
Section 3.01. No Redemption.
--------------
Except for the redemptions provided for in Sections
4.08 and 4.15, the Company may not redeem the Notes, in whole
or in part, at any time.
ARTICLE 4
COVENANTS
Section 4.01. Payment of Notes.
-----------------
The Company shall pay the principal of and interest
(including all Liquidated Damages (as defined in the Registra
tion Rights Agreement) as provided in the Registration Rights
Agreement) on the Notes on the dates and in the manner provided
in the Notes and this Indenture. An installment of principal
or interest shall be considered paid on the date it is due if
the Trustee or Paying Agent holds on that date U.S. legal ten
der designated for and sufficient to pay such installment.
The Company shall pay interest on overdue principal
(including post-petition interest in a proceeding under any
Bankruptcy Law), and overdue interest, to the extent lawful, at
the rate specified in the Notes.
Section 4.02. Provision of Financial
Statements and Other Information.
---------------------------------
(a) Subject to clause (b) hereof, the Company shall
deliver to the Trustee (including sufficient copies to be
delivered to the Holders by the Trustee) within 15 calendar
days after the filing of the same with the Commission, copies
of the quarterly and annual reports and other reports, if any,
which the Company is required to file with the Commission pur
suant to Section 13 or 15(d) of the Exchange Act or pursuant to
this Secton 4.02. At all times when the Company is not subject
to the reporting requirements of Section 13 or 15(d) of the
Exchange Act, the Company will nonetheless file with the
Commission, to the extent permitted by the Commission, and
regardless of any such filing provide the Trustee within 15
calendar days of the filing thereof with the Commission (or
within 15 calendar days of when filing would ordinarily be
required if not then permitted) (including sufficient copies to
be delivered to the Holders by the Trustee) with such quarterly
and annual reports and other reports specified in clause (b)
below. Upon qualification of this Indenture under the TIA, the
Company shall also comply with the provisions of TIA Section
314(a).
(b) The Company shall (i) within 105 days after the
end of its fiscal year file (or provide to the Trustee in
accordance with clause (a) above if filing is not then
permitted) annual reports referred to in the foregoing clause
(a) on Form 10-K (or any successor form) containing the
information required to be contained therein (or required in
such successor form), which shall include consolidated
financial statements and notes thereto, together with a report
thereon expressed by an independent accounting firm and
management's discussion and analysis of financial condition and
results of operations; (ii) within 60 days after the end of
each of the first, second and third fiscal quarters of each
fiscal year, file (or provide to the Trustee in accordance with
clause (a) above if filing is not then permitted) reports on
Form 10-Q (or any successor form) containing the information
required to be contained therein (or required in such successor
form), which shall include unaudited consolidated financial
statements and management's discussion and analysis of
financial condition and results of operations for the first
three quarters of each fiscal year; and (iii) promptly from
time to time after the occurrence of any event required to be
therein reported, such other reports on Form 8-K (or any
successor form) containing the information required to be
contained therein (or required in such successor form). Each
of the reports shall be prepared in accordance with GAAP, as
then in effect, consistently applied and shall be prepared in
accordance with the applicable rules and regulations of the
Commission.
(c) The Company will, promptly upon written request,
provide to any Holder of Notes or any prospective transferee of
any such Holder, at the Company's expense, any information
concerning the Company (including financial statements)
necessary in order to permit such Holder to sell or transfer
Notes in compliance with Rule 144 and Rule 144A under the
Securities Act.
Section 4.03. Waiver of Stay, Extension or Usury Laws.
----------------------------------------
The Company covenants (to the extent that it may law
fully do so) that it will not at any time insist upon, or plead
(as a defense or otherwise) 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 would prohibit or forgive
the Company from paying all or any portion of the principal of,
premium, if any, and/or interest on the Notes as contemplated
herein, wherever enacted, now or at any time hereafter in
force, or which may affect the covenants or the performance of
this Indenture; and (to the extent that it may lawfully do so)
the Company hereby expressly waives all benefit or advantage of
any such law, and covenants that it will not hinder, delay or
impede the execution of any power herein granted to the Trus
tee, but will suffer and permit the execution of every such
power as though no such law had been enacted.
Section 4.04. Compliance Certificate.
-----------------------
(a) The Company shall deliver to the Trustee, within
90 days after the end of each fiscal year and on or before 45
days after the end of the first, second and third quarters of
each fiscal year, an Officers' Certificate (one of the signers
of which shall be the principal executive officer, principal
financial officer or principal accounting officer of the Com
pany) stating that a review of the activities of the Company
and its Subsidiaries during such fiscal year or fiscal quarter,
as the case may be, has been made under the supervision of the
signing Officers with a view to determining whether the Company
has kept, observed, performed and fulfilled its obligations
under this Indenture, and further stating, as to each such
Officer signing such certificate, that to the best of his or
her knowledge the Company has kept, observed, performed and
fulfilled each and every covenant contained in this Indenture
and, in the case of Restricted Payments, listing all Restricted
Payments for such quarter, and is not in default in the perfor
mance or observance of any of the terms, provisions and condi
tions hereof (or, if a Default or Event of Default shall have
occurred, describing all or such Defaults or Events of Default
of which he or she may have knowledge and what action each is
taking or proposes to take with respect thereto) and that to
the best of his or her knowledge no event has occurred and
remains in existence by reason of which payments on account of
the principal of or interest, if any, on the Notes are prohib
ited or if such event has occurred, a description of the event
and what action the Company is taking or proposes to take with
respect thereto.
(b) The Company will, so long as any of the Notes
are outstanding, deliver to the Trustee, forthwith upon any
Officer becoming aware of any Default or Event of Default, an
Officers' Certificate specifying such Default or Event of
Default and what action the Company is taking or proposes to
take with respect thereto.
Section 4.05. Taxes.
------
The Company shall, and shall cause each of its Sub
sidiaries to, pay prior to delinquency all material taxes,
assessments, and governmental levies except as contested in
good faith and by appropriate proceedings.
Section 4.06. Limitation on Indebtedness.
---------------------------
The Company will not, and will not permit any
Subsidiaries to, create, incur, assume or, directly or
indirectly, guarantee the payment of (collectively, "incur")
any Indebtedness (including any Acquired Indebtedness but
excluding Permitted Indebtedness) unless (a) at the time of
such event and after giving effect thereto on a pro forma basis
the Company's Fixed Charge Coverage Ratio for the four full
fiscal quarters immediately preceding such event, taken as one
period calculated on the assumption that such Indebtedness had
been incurred on the first day of such four-quarter period and,
in the case of Acquired Indebtedness, on the assumption that
the related acquisition (whether by means of purchase, merger,
consolidation or otherwise) also had occurred on such date with
the appropriate adjustments with respect to such acquisition
being included in such pro forma calculation, would have been
at least equal to 2.0:1.0 and (b) in the case of any
Indebtedness of the Company, the Indebtedness is pari passu in
right of payment to the Notes or is Subordinated Indebtedness
provided that such Subordinated Indebtedness has a Stated
Maturity (including any scheduled repayments or sinking fund
payments) subsequent to one year after the maturity of the
Notes.
Section 4.07. Limitation on Restricted Payments.
----------------------------------
The Company will not, and will not permit any
Subsidiary to, directly or indirectly:
(i) declare or pay any dividend on, or make any
distribution to Holders of, any Capital Stock of the
Company (other than dividends or distributions payable in
shares of Qualified Capital Stock of the Company or in
options, warrants or other rights to purchase Qualified
Capital Stock of the Company);
(ii) purchase, redeem or otherwise acquire or retire
for value any Capital Stock of the Company or any
Affiliate thereof (other than any Wholly Owned Subsidiary
of the Company) or any option, warrant or other right to
acquire such Capital Stock;
(iii) make any principal payment on, or redeem,
repurchase, defease or otherwise acquire or retire for
value, prior to any scheduled repayment, sinking fund
payment or maturity any Subordinated Indebtedness of the
Company;
(iv) declare or pay any dividend or distribution on
any Capital Stock of any Subsidiary to any Person other
than the Company or any Wholly Owned Subsidiaries or
purchase, redeem or otherwise acquire or retire for value
any Capital Stock of any Subsidiary held by any Person
(other than the Company or any Wholly Owned Subsidiaries);
(v) incur, create or assume any guarantee of
Indebtedness of any Affiliate (other than with respect to
(i) guarantees of Indebtedness of any Wholly Owned
Subsidiary of the Company by the Company or by any
Subsidiary or (ii) guarantees of Indebtedness of the
Company by any Subsidiary, in each case in accordance with
the terms of the Indenture); or
(vi) make any Investment (other than any Permitted
Investment) in any Person (such payments described in (i)
through (vi) collectively, "Restricted Payments");
unless at the time of and after giving effect to the proposed
Restricted Payment (the amount of any such Restricted Payment,
if other than cash, as determined by the Board of Directors,
whose determination shall be conclusive and evidenced by a
Board Resolution), (1) no Default or Event of Default shall
have occurred and be continuing, (2) immediately before and
immediately after giving effect to such transaction on a pro
forma basis, the Company could incur $1.00 of additional
Indebtedness under the provisions of Section 4.06 of this
Indenture (other than Permitted Indebtedness), and (3) the
aggregate amount of all Restricted Payments declared or made
after the date of the Indenture shall not exceed the sum of:
(A) 50% of the Consolidated Net Income of the
Company accrued on a cumulative basis during the period
beginning on the first day of the fiscal quarter in which
the Notes are initially issued and ending on the last day
of the Company's last fiscal quarter ending prior to the
date of such proposed Restricted Payment (or, if such
aggregate cumulative Consolidated Net Income shall be a
loss, minus 100% of such loss);
(B) the aggregate net proceeds, including the Fair
Market Value of property other than cash (as determined by
the Board of Directors of the Company, whose good faith
determination shall be conclusive) received after the date
of the Indenture by the Company as capital contributions
to the Company;
(C) the aggregate net proceeds, including the Fair
Market Value of property other than cash (as determined by
the Board of Directors of the Company, whose good faith
determination shall be conclusive) received after the date
of the Indenture by the Company from the issuance or sale
(other than to any Subsidiaries) of shares of Capital
Stock of the Company or any options or warrants to
purchase such shares (other than issuances in respect of
clause (ii) of the next paragraph) of Capital Stock of the
Company;
(D) the aggregate net proceeds, including the Fair
Market Value of property other than cash (as determined by
the Board of Directors of the Company, whose good faith
determination shall be conclusive) received after the date
of the Indenture by the Company (other than from any
Subsidiaries) upon the exercise of any options or warrants
to purchase shares of Capital Stock of the Company;
(E) the aggregate net proceeds, including the Fair
Market Value of property other than cash (as determined by
the Board of Directors of the Company, whose good faith
determination shall be conclusive) received after the date
of the Indenture, by the Company for debt securities that
have been converted into or exchanged for Qualified
Capital Stock of the Company; and
(F) $10 million.
Notwithstanding the foregoing, and in the case of
clause (iii) below, so long as there is no Default or Event of
Default continuing, the foregoing provisions shall not take
into account and shall not prohibit:
SEQUENCE LEVEL 5 NUMBERING RESET
(i) the payment of any dividend within 60 days after
the date of declaration if at the date of declaration,
such payment would be permitted by the provisions of the
preceding paragraph and such payment shall be deemed to
have been paid on such date of declaration for purposes of
the calculation required by the provisions of the
preceding paragraph;
(ii) any redemption, repurchase or other acquisition
or retirement of any shares of any class of Capital Stock
of the Company or any Subordinated Indebtedness in
exchange for, or out of the net proceeds of, a
substantially concurrent issue and sale (other than to a
Subsidiary) of other shares of Qualified Capital Stock of
the Company, provided that the net proceeds from the
issuance of such shares of Qualified Capital Stock are
excluded from clause (C) of the preceding paragraph; or
(iii) any redemption, repurchase, or other acquisition
or retirement of Subordinated Indebtedness of the Company
(other than Redeemable Capital Stock) made by exchange
for, or out of the proceeds of the substantially
concurrent sale of, Subordinated Indebtedness of the
Company so long as (A) the principal amount of such new
Indebtedness does not exceed the principal amount of the
Indebtedness being so redeemed, repurchased, acquired or
retired (plus the amount of any premium required to be
paid under the terms of the instrument governing the
Indebtedness being so redeemed, repurchased, acquired or
retired), (B) such Indebtedness is subordinated to Senior
Indebtedness and the Notes to the same extent as such
Subordinated Indebtedness so purchased, exchanged,
redeemed, repurchased, acquired or retired, (C) such
Indebtedness has a Stated Maturity for its final scheduled
principal payment later than the Stated Maturity for the
final scheduled principal payment of the Notes and
(D) such Indebtedness has an Average Life to Stated
Maturity equal to or greater than the remaining Average
Life to Stated Maturity of the Notes.
Section 4.08. Disposition of Proceeds of Asset Sales.
---------------------------------------
(a) The Company will not, and will not permit any
Subsidiary to, make any Asset Sale unless (i) at least 85% of
the proceeds from such Asset Sale are received in cash (or, in
lieu of cash, (x) a promissory note issued by the purchaser of
the Asset covered by the Asset Sale and secured by a first
perfected security interest in such Asset provided such
security interest remains in full force and perfected until all
obligations arising under such promissory note are paid in full
or (y) property or assets to be used by the Company in a
substantially similar manner as the property or asset which was
disposed of in such Asset Sale, as determined by the Board of
Directors of the Company, whose good faith determination shall
be conclusive) and (ii) the Company or such Subsidiary receives
consideration at the time of such Asset Sale at least equal to
the Fair Market Value of the shares or assets subject to such
Asset Sale as determined by the Board of Directors and
evidenced in a Board Resolution, whose determination shall be
conclusive (including valuation of all non-cash consideration).
(b) If all or a portion of the Net Cash Proceeds of
any Asset Sale are not required to be applied to repay
permanently any outstanding Pari Passu Indebtedness or any
Indebtedness of any Subsidiary as required by the terms
thereof, the Company determines not to apply such Net Cash
Proceeds to the prepayment of Pari Passu Indebtedness or any
Indebtedness of any Subsidiary or if no such Pari Passu
Indebtedness or such Indebtedness of any Subsidiary is
outstanding, then the Company may, within one year of the Asset
Sale, invest (or enter into a legally binding agreement to
invest) the Net Cash Proceeds in assets that (as determined by
the Board of Directors, whose determination shall be conclusive
and evidenced by a Board Resolution) will be used by the
Company and Wholly Owned Subsidiaries in their marine
transportation businesses or in businesses reasonably related
thereto. If any legally binding agreement to invest any Net
Cash Proceeds is terminated, then the Company may invest such
Net Cash Proceeds, prior to the end of such one-year period or
six months from such termination, whichever is later, in the
business of the Company and Wholly Owned Subsidiaries as
provided above. The amount of such Net Cash Proceeds neither
used to repay or prepay Indebtedness nor used or invested as
set forth in the preceding sentences constitutes "Excess
Proceeds."
(c) When the aggregate amount of Excess Proceeds
equals $50 million or more, the Company shall apply the Excess
Proceeds to the repayment of the Notes as provided in this
paragraph (c). The Company shall make an offer to purchase (an
"Offer") from all Holders of the Notes in accordance with the
procedures set forth in this Section 4.08 in the maximum
principal amount (expressed as a multiple of $1,000) of Notes
that may be purchased out of the Excess Proceeds (the "Note
Amount"). The offer price shall be payable in cash in an
amount equal to 100% of the principal amount of the Notes plus
accrued and unpaid interest, if any, to the date such Offer is
consummated (the "Offered Price"), in accordance with the
procedures set forth in this Section 4.08. To the extent that
the aggregate Offered Price tendered pursuant to an Offer is
less than the Note Amount (the amount by which the aggregate
Offered Price is less than the Note Amount constitutes a
"Deficiency"), the Company may use such Deficiency, or a
portion thereof, in the business of the Company and Wholly
Owned Subsidiaries. Upon completion of the purchase of all the
Notes tendered pursuant to an Offer, the amount of Excess
Proceeds shall be reset at zero.
(d) If the Company becomes obligated to make an
offer pursuant to clause (c) above, Notes shall be purchased by
the Company, at the option of the Holder thereof, in whole or
in part in integral multiples of $1,000, on a date that is not
earlier than 45 days nor later than 60 days from the date the
notice is given to Holders, or such later date as may be
necessary for the Company to comply with the requirements under
the Exchange Act. The Offer shall remain open for a period of
20 Business Days following its commencement or such longer
period as may be required by law. The notice, which shall
govern the terms of the Offer, shall state:
(1) that the Offer is being made pursuant to this
Section 4.08 and the length of time the Offer will remain
open;
(2) the purchase price and the Offer Date;
(3) that any Note not tendered or accepted for pay
ment will continue to accrue interest;
(4) that any Note accepted for payment pursuant to
the Offer shall cease to accrue interest on and after the
Offer Date;
(5) that Holders electing to have a Note purchased
pursuant to any Offer will be required to surrender the
Note, with the form entitled "Option of Holder to Elect
Purchase" on the reverse of the Note completed, to the
Company, a depositary, if appointed by the Company, or a
Paying Agent at the address specified in the notice prior
to the close of business on the third Business Day before
the Offer Date in order to collect the purchase price;
(6) that Holders will be entitled to withdraw their
election if the Paying Agent receives, not later than the
expiration of the Offer period, a facsimile transmission
or letter setting forth the name of the Holder, the
principal amount of the Note the Holder delivered for
purchase (including, if any, the CUSIP number and the
certificate number of such Note) and a statement that such
Holder is withdrawing his election to have the Note
purchased;
(7) that, if the aggregate principal amount of Notes
surrendered by Holders exceeds the Excess Proceeds, the
Company shall select the Notes to be purchased on a pro
rata basis based upon amounts tendered (with such
adjustments as may be deemed appropriate by the Company so
that only Notes in denominations of $1,000, or integral
multiples thereof, shall be purchased); and
(8) that Holders whose Notes were purchased only in
part will be issued new Notes equal in principal amount to
the unpurchased portion of the Notes surrendered; provided
that each Note purchased and each such new Note issued
shall be in an original principal amount in denominations
of $1,000 and integral multiples thereof.
On or before the Offer Date, the Company shall, to
the extent lawful, accept for payment, on a pro rata basis to
the extent necessary, Notes or portions thereof tendered pursu
ant to the Offer, deposit with the Paying Agent U.S. legal
tender sufficient to pay the purchase price plus accrued
interest, if any, to the Offer Date on the Notes to be
purchased and deliver to the Paying Agent an Officers'
Certificate stating that such Notes or portions thereof were
accepted for payment by the Company in accordance with the
terms of this Section 4.08. The Paying Agent shall promptly
(but in any case not later than 5 days after the Excess
Proceeds payment date) mail or deliver to each tendering Holder
an amount equal to the purchase price of the Note tendered by
such Holder and accepted by the Company for purchase, and the
Company shall promptly execute and issue a new Note, and the
Trustee shall promptly authenticate and mail or make available
for delivery such new Note to such Holder equal in principal
amount to any unpurchased portion of the Note surrendered;
provided that each such Note shall be issued in an original
principal amount in denominations of $1,000 and integral
multiples thereof. Any Note not so accepted shall be promptly
mailed or delivered by the Company to the Holder thereof.
(e) Whenever Excess Proceeds received by the Company
equals $50 million or more, such Excess Proceeds shall, prior
to the purchase of Notes described in paragraph (c) above, be
set aside by the Company in a separate account pending
(i) deposit with the depositary of the amount required to
purchase the Notes tendered in an Offer or (ii) delivery by the
Company of the Offered Price to the Holders of the Notes
tendered in an Offer. Such Excess Proceeds may be invested in
Temporary Cash Investments the maturity date of which is not
later than the Offer Date. The Company shall be entitled to any
interest or dividends accrued, earned or paid on such Temporary
Cash Investments.
(f) In the event that the Company shall be unable to
purchase Notes from Holders thereof in an Offer because of
provisions of applicable law, the Company need not make an
Offer. The Company shall then be obligated to (i) invest the
Excess Proceeds in properties and assets to replace the
properties and assets that were the subject of the Asset Sale
or in properties and assets that (as determined by the Board of
Directors, whose determination shall be conclusive and
evidenced by a Board Resolution) will be used in the businesses
of the Company and Wholly Owned Subsidiaries existing on the
date of the Indenture or in businesses reasonably related
thereto and/or (ii) apply the Excess Proceeds to repay Pari
Passu Indebtedness or Indebtedness of Subsidiaries.
(g) The Company shall comply, to the extent
applicable, with the requirements of Rule 14e-1 under the
Exchange Act and other securities laws or regulations in
connection with the repurchase of the Notes. To the extent
that the provisions of any United States federal or state
securities laws and regulations conflict with this Section
4.08, the Company shall comply with the applicable United
States federal or state securities laws and regulations and
shall not be deemed to have breached its obligations under this
Section 4.08 by virtue thereof.
Section 4.09. Limitation on Transactions with Affiliates.
-------------------------------------------
The Company will not, and will not permit any
Subsidiary to, directly or indirectly (other than pursuant to
contractual arrangements in effect on the date of the
Indenture), conduct any business or enter into any transaction
or series of related transactions (including, without
limitation, the sale, purchase, exchange or lease of assets,
property or services) with any Affiliate of the Company (other
than a Wholly Owned Subsidiary or a Joint Venture Entity)
unless (i) the terms of such business transaction or series of
transactions are (A) set forth in writing and (B) no less
favorable to the Company or such Subsidiary, as the case may
be, than would be obtainable in a comparable transaction or
series of related transactions in arm's-length dealings with an
unrelated third party, and (ii) with respect to a transaction
or series of transactions involving aggregate payments in
excess of $1 million, such transaction or series of
transactions has been approved by a majority of the Independent
Directors.
Section 4.10. Limitations on Liens.
---------------------
The Company will not, and will not permit any
Subsidiary to, create, incur, assume or suffer to exist any
Liens of any kind upon any of their respective assets or
properties having an aggregate book value in excess of $500,000
now owned or acquired after the date of the Indenture or any
income or profits therefrom to secure any Indebtedness of the
Company unless contemporaneously therewith or prior thereto the
Notes are equally and ratably secured with the obligation or
liability secured by such Lien, except for the Liens set forth
on Schedule I hereto and any extension, renewal, refinancing or
replacement, in whole or in part, of any Lien set forth on
Schedule I hereto, so long as (1) the amount of security is not
increased thereby, (2) the aggregate amount of Indebtedness or
other obligations secured by the Lien after such extension,
renewal, refinancing or replacement does not exceed the
aggregate amount of the Indebtedness or other obligations
secured by the existing Lien prior to such extension, renewal,
refinancing or replacement and (3) the Indebtedness secured by
such Lien (other than Permitted Indebtedness), if any, is
permitted under the provisions of the Indenture.
Section 4.11. Limitations of Guarantees by Subsidiaries.
------------------------------------------
(a) The Company will not permit any Subsidiary,
directly or indirectly, to assume, guarantee or in any other
manner become liable with respect to any Indebtedness of the
Company unless (i) such Subsidiary simultaneously executes and
delivers a supplemental indenture evidencing its guarantee of
payment of the Notes, on a ranking in right of payment at least
equal to such assumption, guarantee or liability (unless such
other indebtedness of the Company being guaranteed is
subordinated indebtedness, in which case on a ranking in right
of payment prior to such assumption, guarantee or liability)
and (ii) such Subsidiary waives, and will not in any manner
whatsoever claim or take the benefit or advantage of, any
rights of reimbursement, indemnity or subrogation or any other
rights against the Company or any other Subsidiary as a result
of any payment by such Subsidiary under its guarantee.
(b) Each guarantee of the Notes created pursuant to
the provisions described in the foregoing paragraph is referred
to as a "Guarantee" and the issuer of each such Guarantee is
referred to as a "Guarantor." Notwithstanding the foregoing,
any Guarantee by a Subsidiary of the Notes shall provide by its
terms that it shall be automatically and unconditionally
released and discharged upon any sale, exchange or transfer, to
any Person not an Affiliate of the Company, of all of the
Capital Stock owned by the Company (directly or indirectly) in,
or all or substantially all the assets of, such Subsidiary,
which is in compliance with the Indenture.
Section 4.12. Limitation on Sale-Leaseback Transactions.
------------------------------------------
The Company shall not, and shall not permit any
Subsidiary to, enter into any sale and leaseback transaction
unless (i) the Company or such Subsidiary could have incurred
Indebtedness in an amount equal to the Attributable Debt
relating to such sale and leaseback transaction pursuant to
Section 4.06 of this Indenture or (ii) the proceeds of such
sale and leaseback transaction are at least equal to the fair
value (as determined in good faith by the Board of Directors
and evidenced by a Board Resolution) of the property and the
Company or such Subsidiary applies or causes to be applied an
amount in cash equal to the Net Cash Proceeds from such sale to
(A) purchase Notes or prepay Pari Passu Indebtedness or any
Indebtedness of any Subsidiary or (B) be used by the Company
and Wholly Owned Subsidiaries in their marine transportation
businesses or in businesses reasonably related thereto, in each
case within 90 days of the effective date of any such sale and
leaseback transaction.
Section 4.13. Payments for Consent.
---------------------
Neither the Company nor any of its Subsidiaries
shall, directly or indirectly, pay or cause to be paid any con
sideration, whether by way of interest, fee or otherwise, to
any Holder of any Notes for or as an inducement to any consent,
waiver or amendment of any of the terms or provisions of this
Indenture or the Notes unless such consideration is offered to
be paid or agreed to be paid to all Holders of the Notes which
so consent, waive or agree to amend in the time frame set forth
in solicitation documents relating to such consent, waiver or
agreement.
Section 4.14. Corporate Existence.
--------------------
Subject to Article 5 hereof, the Company shall use
all reasonable efforts to preserve and keep in full force and
effect (i) its corporate existence, and the corporate,
partnership or other existence of each Subsidiary, in
accordance with the respective organizational documents (as the
same may be amended from time to time) of each Subsidiary and
(ii) the rights (charter and statutory), licenses and
franchises of the Company and its Subsidiaries; provided,
however, that the Company shall not be required to preserve any
such right, license or franchise, or the corporate, partnership
or other existence of any of its Subsidiaries, if the Board of
Directors shall determine that the preservation thereof is no
longer desirable in the conduct of the business of the Company
and its Subsidiaries, taken as a whole, and that the loss
thereof is not adverse in any material respect to the Holders.
Section 4.15. Change of Control.
------------------
(a) If a Change of Control occurs at any time, each
Holder of Notes will have the right to require that the Company
repurchase such Holder's Notes at a purchase price in cash
equal to 101% of the principal amount of such Notes plus
accrued and unpaid interest, if any, to the date of purchase,
as provided in and subject to the terms of this Section 4.15.
All Notes properly tendered pursuant to such Change of Control
offer and not withdrawn pursuant thereto will be purchased on
the Change of Control payment date. The Change of Control
offer shall remain open for at least 20 Business Days and until
the close of business on the Change of Control payment date.
(b) Within 30 days following any Change of Control,
the Company will mail a notice to each Holder. Such notice
shall be sent by first-class mail, postage prepaid, to the
Trustee and to each Holder of the Notes, at the address
appearing in the register maintained by the Registrar of the
Notes, and shall state:
(i) that the Change of Control offer is being made
pursuant to this Section 4.15, the length of time the
Change of Control offer will remain open and that all
Notes tendered will be accepted for payment, and otherwise
subject to the terms and conditions set forth herein;
(ii) the Change of Control purchase price and the
Change of Control payment date (which shall be no earlier
than 30 days nor later than 60 days from the date such
notice is mailed);
(iii) that any Note not tendered or improperly
tendered will continue to accrue interest;
(iv) that, unless the Company defaults in the payment
of the Change of Control purchase price, any Notes
accepted for payment pursuant to the Change of Control
offer shall cease to accrue interest after the Change of
Control payment date;
(v) that Holders electing to have their Notes
purchased pursuant to a Change of Control Offer will be
required to surrender the Notes, with the form entitled
"Option of Holder to Elect Purchase" on the reverse of the
Notes completed, to the Paying Agent at the address speci
fied in the notice prior to the close of business on the
third Business Day preceding the Change of Control payment
date in order to collect the purchase price;
(vi) that Holders will be entitled to withdraw their
election if the Paying Agent receives, not later than the
close of business on the Change of Control payment date, a
facsimile transmission or letter setting forth the name of
the Holder, the principal amount of the Notes delivered
for purchase (including, if any, the CUSIP number and the
certificate number of such Notes), and a statement that
such Holder is withdrawing his election to have such Notes
purchased;
(vii) that Holders whose Notes are being purchased
only in part will be issued new Notes equal in principal
amount to the unpurchased portion of the Notes surren
dered, provided that each Note purchased and each such new
Note issued shall be in an original principal amount in
denominations of $1,000 and integral multiples thereof;
(viii) any other procedures that a Holder must follow
to accept a Change of Control offer or effect withdrawal
of such acceptance;
(ix) the name and address of the Paying Agent; and
(x) the circumstances and relevant facts regarding
such Change of Control.
On the Change of Control payment date, the Company
shall, to the extent lawful, (i) accept for payment Notes or
portions thereof tendered pursuant to the Change of Control
Offer, (ii) deposit with the Paying Agent U.S. legal tender
sufficient to pay the Change of Control purchase price of all
Notes or portions thereof so tendered and (iii) deliver or
cause to be delivered to the Paying Agent an Officers'
Certificate stating that such Notes or portions thereof were
accepted for purchase by the Company in accordance with the
terms of this Indenture. The Paying Agent shall promptly (but
in any case not later than 5 days after the Change of Control
payment date) mail or deliver to each Holder of Notes so
accepted payment in an amount equal to the Change of Control
Purchase Price for such Notes, and the Company shall promptly
execute and issue, and the Trustee shall promptly authenticate
and make available for delivery to such Holder, new Notes equal
in principal amount to any unpurchased portion of the Notes
surrendered; provided that each such new Note shall be issued
in an original principal amount in denominations of $1,000 and
integral multiples thereof. Any Note not so accepted shall be
promptly mailed or delivered by the Company to the Holder
thereof.
The Company shall comply, to the extent applicable,
with the requirements of Rule 14e-1 under the Exchange Act and
other securities laws or regulations in connection with the
repurchase of the Notes as described above. To the extent that
the provisions of any United States federal or state securities
laws and regulations conflict with this Section 4.15, the
company will company with such applicable securities laws and
regulations and will not be deemed to have breached its
obligations under this Section 4.15 by virtue thereof.
Section 4.16. Maintenance of Office or Agency.
--------------------------------
The Company shall maintain an office or agency where
Notes may be presented or surrendered for registration of
transfer or exchange or for payment and where notices and
demands to or upon the Company in respect of the Notes and this
Indenture may be served. The Company shall give prompt written
notice to the Trustee of the location, and any change in the
location, of such office or agency. If at any time the Company
shall fail to maintain any such required office or agency or
shall fail to furnish the Trustee with the address thereof,
such presentations, surrenders, notices and demands may be made
or served at the address of the Trustee as set forth in Section
10.02 and the Company hereby appoints the Trustee as its agent
to receive all such presentations, surrenders, notices and
demands.
The Company may also from time to time designate one
or more other offices or agencies where the Notes may be pre
sented 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 such designation or
rescission and of any change in the location of any such other
office or agency.
The Company hereby initially designates the Corporate
Trust Office of the Trustee set forth in Section 10.02 as such
office of the Company.
Section 4.17. Restrictions on Preferred Stock of
Subsidiaries.
----------------------------------
The Company will not permit any Subsidiary to issue
any Preferred Stock (other than to the Company or a Wholly
Owned Subsidiary), or permit any Person (other than the Company
or a Wholly Owned Subsidiary) to own any Preferred Stock of any
Subsidiary.
Section 4.18. Limitation on Dividends and
Other Payment Restrictions
Affecting Subsidiaries.
---------------------------
The Company will not, and will not permit any
Subsidiary to, create or otherwise cause to become effective
any consensual encumbrance or restriction of any kind, on the
ability of any Subsidiary to (a) pay dividends or make any
other distribution on its Capital Stock, (b) pay any
Indebtedness owed to the Company or any other Subsidiary,
(c) make any Investment in the Company or any other Subsidiary
or (d) transfer any of its property or assets to the Company or
any other Subsidiary, except (i) any encumbrance or restriction
pursuant to an agreement in effect at or entered into on the
date of the Indenture; (ii) any encumbrance or restriction
pursuant to Title XI Financing provided that such encumbrance
or restriction is no more onerous to the Company or such
Subsidiary than any provision contained in any agreement or
other document pertaining to a Title XI Financing to which the
Company or such Subsidiary is a party or subject which is
outstanding on the date of the Indenture; (iii) any encumbrance
or restriction, with respect to a Subsidiary that is not a
Subsidiary on the date of the Indenture, in existence at the
time such Person becomes a Subsidiary or created on the date it
becomes a Subsidiary and not incurred in connection with, or in
contemplation of, such Person becoming a Subsidiary; and
(iv) any encumbrance or restriction existing under any
agreement that extends, renews, refinances or replaces the
agreements containing the restrictions in the foregoing
clauses (i), (ii), and (iii) provided, that the terms and
conditions of any such restrictions are not materially less
favorable to the Holders of the Notes than those under or
pursuant to the agreement evidencing the Indebtedness so
extended, renewed, refinanced or replaced (in the opinion of
the Board of Directors of the Company and evidenced in a Board
Resolution whose determination shall be conclusive).
Section 4.19. Limitations on Unrestricted Subsidiaries.
-----------------------------------------
The Company will not make, and will not permit any
Subsidiaries to make, any Investments in Unrestricted
Subsidiaries if, at the time thereof, (i) the aggregate amount
of such Investments would exceed the sum of (x) 10% of the
Company's Consolidated Net Tangible Assets at the time of
determination and (y) the amount of Restricted Payments then
permitted to be made pursuant to Section 4.07 of this Indenture
and (ii) after giving effect to such Investment, the Company
could not incur $1.00 of additional Indebtedness (other than
Permitted Indebtedness). Any Investments in Unrestricted
Subsidiaries permitted to be made pursuant to this covenant may
be made in cash or property.
Section 4.20. Insurance.
----------
The Company shall maintain, and shall cause its
Subsidiaries to maintain, insurance with responsible carriers
(which shall include the Company's wholly-owned subsidiary, Bay
Insurance Company, a Bermuda company), against such risks and
in such amounts, and with such deductibles, retentions, self-
insured amounts and co-insurance provisions, as are customarily
carried by similar businesses of similar size, including
property and casualty loss, workers compensation and
interruption of business insurance.
ARTICLE 5
SUCCESSOR CORPORATION
Section 5.01. Limitation on Consolidation,
Merger and Sale of Assets.
----------------------------
The Company shall not, in a single transaction or
through a series of related transactions, consolidate or merge
with or into any other Person or sell, assign, convey,
transfer, lease or otherwise dispose of all or substantially
all of its properties and assets as an entirety to any other
Person or group of affiliated Persons or permit any
Subsidiaries to enter into any such transaction or transactions
if such transaction or transactions, in the aggregate, would
result in a sale, assignment, transfer, lease or disposal of
all or substantially all of the properties and assets of the
Company and Subsidiaries on a Consolidated basis to any other
Person or group of affiliated Persons, or permit any Person to
consolidate or merge with or into the Company unless at the
time and after giving effect thereto (i) either (a) the Company
shall be the continuing Person, or (b) the Person (if other
than the Company) formed by such consolidation or into which
the Company is merged or to which all or substantially all of
the properties and assets of the Company, substantially as an
entirety, are transferred (the "Surviving Entity") shall be a
corporation, partnership or trust organized and validly
existing under the laws of the United States of America, or any
state thereof or the District of Columbia, and shall expressly
assume, by an indenture supplemental hereto, executed and
delivered to the Trustee, in form reasonably satisfactory to
the Trustee, the due and punctual payment of the principal of,
premium, if any, and interest on all of the Notes and the
performance and observance of every covenant of the Indenture
on the part of the Company to be performed or observed, and the
Indenture shall remain in full force and effect;
(ii) immediately before and immediately after giving effect to
such transaction on a pro forma basis (and treating any
Indebtedness not previously an obligation of the Company or a
Subsidiary which becomes the obligation of the Company or any
Subsidiary in connection with or as a result of such
transaction as having been incurred at the time of such
transaction), no Default or Event of Default shall have
occurred and be continuing and the Company (or the Surviving
Entity if the Company is not the continuing obligor under the
Indenture), after giving effect to such transaction, could
incur $1.00 of additional Indebtedness (other than Permitted
Indebtedness) under Section 4.06 of this Indenture;
(iii) immediately after giving effect to such transaction on a
pro forma basis (and treating any Indebtedness not previously
an obligation of the Company or a Subsidiary which becomes the
obligation of the Company or any Subsidiary in connection with
or as a result of such transaction as having been incurred at
the time of such transaction), the Consolidated Net Worth of
the Company (or the Surviving Entity if the Company is not the
continuing obligor under the Indenture) is at least equal to
the Consolidated Net Worth of the Company immediately before
such transaction; and (iv) each Guarantor, if any, unless it is
the other party to the transactions described above, shall have
by supplemental indenture or guarantee confirmed that its
Guarantee shall apply to such Person's obligations under the
Indenture and the Notes.
In connection with any consolidation, merger,
transfer or lease contemplated hereby, the Company or such
Person shall deliver, or cause to be delivered, to the Trustee,
in the form and substance reasonably satisfactory to the
Trustee, an Officer's Certificate and an Opinion of Counsel,
each stating that such consolidation, merger, sale, assignment,
transfer, lease or disposition and the supplemental indenture
in respect thereto comply with the requirements under the
Indenture.
A Guarantor, if any (other than any Subsidiary whose
Guarantee is being released as described in Section 4.11 of
this Indenture as a result of such transaction), shall not, and
the Company will not permit a Guarantor, in a single
transaction or through a series of related transactions, to
consolidate with or merge with or into any other Person, or
sell, assign, convey, transfer, lease or otherwise dispose of
all or substantially all of its properties and assets on a
Consolidated basis substantially as an entirety to any other
Person or group of affiliated Persons unless (i) either
(1) such Guarantor shall be the continuing corporation,
partnership or trust or (2) the entity (if other than such
Guarantor) formed by such consolidation or into which such
Guarantor is merged or the Person which acquires by sale,
assignment, conveyance, transfer, lease or disposition the
properties and assets of such Guarantor substantially as an
entirety (the "Transaction Survivor") shall be a corporation,
partnership or trust organized and validly existing under
(x) the laws of the United States, any state thereof or the
District of Columbia or (y) the laws of any other country
recognized by the United States of America and, in either case,
shall expressly assume by a supplemental indenture or
guarantee, executed and delivered to the Trustee, in form
reasonably satisfactory to the Trustee, all the obligations of
such Guarantor under the Notes and the Indenture;
(ii) immediately after giving effect to such transaction (and
treating any Indebtedness not previously an obligation of such
Guarantor or a subsidiary thereof which becomes the obligation
of such Guarantor or any of its subsidiaries in connection with
or as a result of the transaction as having been incurred at
the time of the transaction), no Default or Event of Default
shall have occurred and be continuing; (iii) the Transaction
Survivor shall have delivered to the Trustee opinions of
independent counsel to the effect that (a) the Holders of the
outstanding Notes will not recognize United States federal
income, gain or loss for income tax or other tax purposes as a
result of such transaction, and will be subject to United
States federal income tax and other tax on the same amounts, in
the same manner and at the same times as would be the case if
such transaction had not occurred and (b) there will be no
withholding tax imposed on any payments made pursuant to the
Notes or the Guarantees by the jurisdiction in which the
Transaction Survivor is domiciled or incorporated; provided
that the Holders of Notes file any forms with the relevant
governments which the Company reasonably requests such Holders
to file, which filings will have no other material economic or
legal consequences to such Holders; and (iv) such Guarantor
shall have delivered to the Trustee an Officer's Certificate
and an Opinion of Counsel, each stating that such
consolidation, merger, sale, assignment, conveyance, transfer,
lease or disposition and such supplemental indenture comply
with the Indenture, and that all conditions precedent therein
relating to such transaction have been complied with.
Notwithstanding the foregoing, any Subsidiary may
(x) merge or consolidate with or into any other Wholly Owned
Subsidiary or the Company or (y) sell, assign, convey,
transfer, lease, or otherwise dispose of all or substantially
all of its properties and assets to any other Wholly Owned
Subsidiary or the Company; provided that (A) any Person
surviving any such merger or consolidation with a Guarantor or
which acquires substantially all of the assets of any Guarantor
(the "Acquisition Survivor") shall expressly assume by a
supplemental indenture or guarantee executed and delivered to
the Trustee, in form and substance reasonably satisfactory to
the Trustee, any obligations of such Subsidiary to guarantee
the obligations owing under this Indenture; and (B) the
Acquisition Survivor shall have delivered to the Trustee an
officers' certificate and an opinion of counsel, each stating
that the transaction and the supplemental guarantee or
indenture executed in connection therewith comply with this
Article and that all conditions precedent herein provided for
relating to such transaction have been complied with.
In the event of any transaction (other than a lease)
described in and complying with the conditions listed in the
immediately preceding paragraphs in which the Company or any
Guarantor is not the continuing corporation, the successor
Person formed or remaining shall succeed to, and be substituted
for, and may exercise every right and power of, the Company or
such Guarantor, as the case may be, with the same effect as if
such successor Person had been named as the Company under the
Indenture or such Guarantor under the Guarantee, as the case
may be.
Section 5.02. Successor Person Substituted.
-----------------------------
Upon any consolidation, merger, conveyance or any
transfer of all or substantially all of the assets of the Com
pany or any Guarantor, if any, in accordance with Section 5.01
of this Indenture, the successor Person formed by such
consolidation or into which the Company or any Guarantor, if
any, is merged or to which such transfer is made shall succeed
to, and be substituted for, and may exercise every right and
power of, the Company or any Guarantor, if any, under this
Indenture, the Notes and/or the Guarantees, as the case may be,
with the same effect as if such successor Person had been named
as the Company herein or such Guarantor under the Guarantee,
and thereafter the predecessor corporation shall be relieved of
all obligations and covenants under this Indenture, the Notes
and/or the Guarantees, as the case may be.
ARTICLE 6
DEFAULTS AND REMEDIES
Section 6.01. Events of Default.
------------------
An "Event of Default" occurs if:
(i) there shall be a failure to pay an installment
of interest on any of the Notes when it becomes due and
payable and continuance of such default for a period of
30 days after the date when due;
(ii) there shall be a failure to pay when due the
principal of (at its Stated Maturity, required repurchase
or otherwise) or premium, if any, on any of the Notes;
(iii) the Company or any Guarantor, if any, shall fail
to comply with its obligations under Section 5.01 of this
Indenture;
(iv) (A) the Company shall fail to perform or observe
any other covenant, warranty or agreement contained in the
Notes or the Indenture (other than a default in the
performance or breach of a covenant, warranty or agreement
which is expressly dealt with elsewhere herein) for a
period of 30 days after written notice of such failure,
requiring the Company to remedy the same, shall have been
given (x) to the Company by the Trustee or (y) to the
Company and the Trustee by the Holders of at least 25% in
aggregate principal amount of the Notes then outstanding;
or (B) the Company shall have failed to make or consummate
an offer in accordance with the provisions of
Sections 4.08 or 4.15 of this Indenture;
(v) (A) a default in the payment of the principal,
premium, if any, or interest on any Indebtedness shall
have occurred under any agreements, indentures or
instruments under which the Company or any Significant
Subsidiary then has outstanding Indebtedness in excess of
$5 million when the same shall become due and payable and
continuation of such default after any applicable grace
period or (B) an event of default as defined in any of the
foregoing agreements, indentures or instruments shall have
occurred and the Indebtedness thereunder, if not already
matured at its final maturity in accordance with its
terms, shall have been accelerated;
(vi) any Guarantee, if any, is determined by a court
of competent jurisdiction to be null and void or the
Guarantor, if any, denies that it has any further
liability under the Guarantee, or gives notice to such
effect (other than by reason of the release of any such
Guarantee in accordance with Section 4.11 of this
Indenture);
(vii) one or more judgments, orders or decrees for the
payment of money in excess of $5 million, either
individually or in the aggregate, shall be entered against
the Company or any Significant Subsidiary or any of their
respective properties which is not fully covered by
insurance, bond or surety or similar instrument and shall
not be discharged and either (a) any creditor shall have
commenced an enforcement proceeding upon such judgment,
order or decree or (b) there shall have been a period of
60 days during which a stay of enforcement of such
judgment, order or decree, by reason of an appeal or
otherwise, shall not be in effect; or
(viii) the Company or any Significant Subsidiary
pursuant to or within the meaning of any Bankruptcy Law:
(A) commences a voluntary case,
(B) consents to the entry of an order for
relief against it in an involuntary case,
(C) consents to the appointment of a Custodian
of it or for all or substantially all of its prop
erty, or
(D) makes a general assignment for the benefit
of its creditors, or
(E) generally is not able to pay its debts as
they become due; or
(ix) a court of competent jurisdiction enters an
order or decree under any Bankruptcy Law that:
(A) is for relief against the Company or any
Significant Subsidiary in an involuntary case,
(B) appoints a Custodian of the Company or any
Significant Subsidiary or for all or substantially
all of the property of the Company or any Significant
Subsidiary, or
(C) orders the liquidation of the Company or
any Significant Subsidiary,
and the order or decree remains unstayed and in effect for
60 days.
The term "Bankruptcy Law" means Title 11, U.S. Code
or any similar federal or state law for the relief of debtors.
The term "Custodian" means any receiver, trustee, assignee,
liquidator, custodian or similar official under any Bankruptcy
Law.
The Trustee may withhold notice as provided under
Section 7.05 to the Holders of the Notes of any Default (except
in payment of principal or premium, if any, or interest on the
Notes) if the Trustee considers it to be in the interests of
the Holders of the Notes to do so.
Section 6.02. Acceleration.
-------------
(a) If an Event of Default (other than an Event of
Default arising under Section 6.01(viii) or (ix)) shall occur
and be continuing, the Trustee or the Holders of not less than
25% in aggregate principal amount of the Notes then outstanding
may declare the principal of all the Notes to be due and
payable immediately at their principal amount together with
accrued and unpaid interest to the date the Notes become due
and payable and thereupon the Trustee may, at its discretion,
proceed to protect and enforce the rights of the Holders of
Notes by appropriate judicial proceeding. If an Event of
Default specified in Section 6.01(viii) or (ix) occurs and is
continuing, then the principal of all the Notes shall ipso
facto become and be immediately due and payable without any
declaration or other act on the part of the Trustee or any
Holder.
(b) Notwithstanding the provisions of Section 6.04
of this Indenture, after a declaration of acceleration, but
before a judgment or decree for payment of the money due has
been obtained by the Trustee, the Holders of a majority in
aggregate principal amount of Notes outstanding, by written
notice to the Company and the Trustee, may rescind and annul
such declaration if (a) the Company has paid or deposited with
the Trustee a sum sufficient to pay (i) all sums paid or
advanced by the Trustee under the Indenture and the reasonable
compensation, expenses, disbursements and advances of the
Trustee, its agents and counsel, (ii) all overdue interest on
all Notes, (iii) the principal of and premium, if any, on any
Notes which have become due otherwise than by such declaration
of acceleration and interest thereon at the rate borne by the
Notes, and (iv) to the extent that payment of such interest is
lawful, interest upon overdue interest at the rate borne by the
Notes; and (b) all Events of Default, other than the nonpayment
of principal of the Notes which have become due solely by such
declaration of acceleration, have been cured or waived.
(c) The Company is required to notify the Trustee
within five business days of the occurrence of any Default.
Section 6.03. Other Remedies.
---------------
If an Event of Default occurs and is continuing, the
Trustee may pursue any available remedy by proceeding at law or
in equity to collect the payment of principal of, or premium,
if any, and interest on the Notes or to enforce the performance
of any provision of the Notes or this Indenture and may take
any necessary action requested of it as Trustee to settle, com
promise, adjust or otherwise conclude any proceedings to which
it is a party.
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
Noteholder in exercising any right or remedy accruing upon an
Event of Default shall not impair the right or remedy or con
stitute 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.
Section 6.04. Waiver of Past Defaults
and Events of Default.
-----------------------
Subject to Sections 6.02, 6.07 and 8.02 hereof, the
Holders of not less than a majority in aggregate principal
amount of the Notes outstanding may on behalf of the Holders of
all the Notes waive any past Default under the Indenture and
its consequences, except a Default in the payment of the
principal of, premium, if any, or interest on any Note, or in
respect of a covenant or provision which under the Indenture
cannot be modified or amended without the consent of the Holder
of each Note outstanding. 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 Event of Default or impair any
right consequent thereto.
Section 6.05. Control by Majority.
--------------------
The Holders of a majority in principal amount of the
outstanding Notes have the right to direct the time, method and
place of conducting any proceeding for any remedy available to
the Trustee or exercising any trust or power conferred on the
Trustee by this Indenture. The Trustee, however, may refuse to
follow any direction that conflicts with any laws or
regulations or this Indenture or that the Trustee determines
may be unduly prejudicial to the rights of another Noteholder
not taking part in such direction, and the Trustee shall have
the right to decline to follow any such direction if the
Trustee, being advised by counsel, determines that the action
so directed may not lawfully be taken or if the Trustee in good
faith shall, by a Trust Officer, determine that the proceedings
so directed may involve it in personal liability; provided that
the Trustee may take any other action deemed proper by the
Trustee which is not inconsistent with such direction. Prior
to taking any action hereunder, the Trustee shall be entitled
to indemnification or security satisfactory to it in its
reasonable discretion against all losses, liabilities, expenses
or fees caused by taking or not taking such action.
Section 6.06. Limitation on Suits.
--------------------
Subject to Section 6.07 of this Indenture, no Holder
has any right to institute any proceeding with respect to this
Indenture or pursue any remedy thereunder unless:
(1) the Holders of at least 25% in aggregate princi
pal amount of the outstanding Notes make a written request
to the Trustee to institute such proceeding or pursue the
remedy as Trustee;
(2) such Holder or Holders offer to the Trustee
indemnity reasonably satisfactory to the Trustee against
any loss, liability, expense or fee;
(3) the Trustee fails to institute such proceeding
or pursue such remedy within 15 calendar days after
receipt of such notice and the indemnity; and
(4) the Trustee has not received directions incon
sistent with such written request during such 15-day
period by the Holders of a majority in aggregate principal
amount of the outstanding Notes.
A Noteholder may not use this Indenture to prejudice
the rights of another Noteholder or to obtain a preference or
priority over another Noteholder.
Section 6.07. Rights of Holders To Receive Payment.
-------------------------------------
Notwithstanding any other provision of this Inden
ture, the right of any Holder of a Note to receive payment of
principal of, or premium, if any, or accrued interest, if any,
on any Note held by such Holder on or after the respective due
dates expressed in such Note, or to bring suit for the
enforcement of any such payment on or after such respective
dates, is absolute and unconditional and 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, pre
mium or interest specified in clauses (i), (ii) or (iii) of
Section 6.01 of this Indenture occurs and is continuing, the
Trustee may recover judgment in its own name and as trustee of
an express trust against the Company for the whole amount of
unpaid principal and accrued interest remaining unpaid,
together with interest 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 then borne
by the Notes, and such further amounts as shall be sufficient
to cover the reasonable 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 Noteholders
allowed in any judicial proceedings relative to the Company
(or any other obligor upon the Notes), its creditors or its
property and shall be entitled and empowered to collect and
receive any monies or other property payable or deliverable on
any such claims and to distribute the same after deduction of
its charges and expenses to the extent that any such charges
and expenses are not paid out of the estate in any such pro
ceedings and any custodian in any such judicial proceeding is
hereby authorized by each Noteholder 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 Noteholders, to pay
to the Trustee any amount due to it for the reasonable compen
sation, expenses, disbursements and advances of the Trustee,
its agents and counsel, and any other amounts due the Trustee
under Section 7.07 hereof.
Nothing herein contained shall be deemed to authorize
the Trustee to authorize or consent to or accept or adopt on
behalf of any Noteholder any plan or reorganization, arrange
ment, 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 Noteholder in any such
proceedings.
Section 6.10. Priorities.
-----------
If the Trustee collects any money pursuant to this
Article 6, it shall pay out the money in the following order:
FIRST: to the Trustee for amounts due under Section
7.07 hereof;
SECOND: to Noteholders for amounts due and unpaid on
the Notes for principal, premium, if any, and interest as
to each, ratably, without preference or priority of any
kind, according to the amounts due and payable on the
Notes upon presentation of the Notes and the notation
thereon of the payment if only partially paid and upon
surrender thereon if fully paid;
THIRD: the balance, if any, to the Person or Persons
entitled thereto; and
FOURTH: to the Company.
The Trustee may fix a record date and payment date
for any payment to Noteholders pursuant to this Section 6.10.
Section 6.11. Undertaking for Costs.
----------------------
All parties to this Indenture agree and each Holder
of any Note by his acceptance thereof shall be deemed to have
agreed that in any suit for the enforcement of any right or rem
edy 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, 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 does not apply to a suit by the Trustee, a suit by a
Holder pursuant to Section 6.07 hereof or a suit by a Holder or
Holders of more than 10% in aggregate principal amount of the
Notes then outstanding.
ARTICLE 7
TRUSTEE
Section 7.01. Duties of Trustee.
------------------
(a) If an Event of Default known to the Trustee has
occurred and is continuing, the Trustee shall, other than with
respect to any action taken by the Trustee as directed by a
majority in aggregate principal amount of the Holders of out
standing Notes, exercise such 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 such Person's own affairs.
(b) Except during the continuance of an Event of
Default known to the Trustee:
(1) The Trustee need perform only those duties that
are specifically set forth in this Indenture and no
others.
(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 or opinions furnished to the
Trustee and conforming to the requirements of this Inden
ture but, in the case of any such certificates or opinions
which by any provision hereof are specifically required to
be furnished to the Trustee, the Trustee shall be under a
duty to examine the same to determine whether or not they
conform to the requirements of this Indenture.
(c) The Trustee 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
paragraph (b) of this Section 7.01.
(2) The Trustee shall not be liable for any error of
judgment made in good faith by a Trust Officer, unless it
is proved that the Trustee was negligent in ascertaining
the pertinent facts.
(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
Sections 6.02, 6.04 and 6.05 hereof.
(4) 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
rights or powers if it determines in the exercise of its
reasonable discretion that repayment of such funds or ade
quate indemnity satisfactory to it against such risk or
liability is not reasonably assured to it.
(d) Whether or not therein expressly so provided,
paragraphs (a), (b) and (c) of this Section 7.01 shall govern
every provision of this Indenture that in any way relates to
the Trustee.
(e) The Trustee is not under any obligation to exer
cise any of its rights or powers under this Indenture at the
request or direction of any of the Holders unless such Holders
shall have offered to the Trustee indemnity or security
satisfactory to it in its reasonable discretion against any
loss, liability, expense or fee.
(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 the law.
Section 7.02. Rights of Trustee.
------------------
Subject to Section 7.01 hereof:
(1) In the absence of bad faith on its part, the
Trustee may rely on any document reasonably 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.
(2) Before the Trustee acts or refrains from acting
with respect to any matters contemplated by this Indenture
or the Notes it may require an Officers' Certificate or an
Opinion of Counsel, or both, which shall conform to the
provisions of Section 10.05 hereof. The Trustee shall be
protected and shall not be liable for any action it takes
or omits to take in good faith in reliance on such cer
tificate or opinion.
(3) In the absence of bad faith on its part, the
Trustee may act through Agents and shall not be
responsible for the misconduct or negligence of any Agent
unless the appointment of such Agent was made with
negligence.
(4) The Trustee shall not be liable for any action
it takes or omits to take in good faith which it reason
ably believes to be authorized or within its rights or
powers under this Indenture.
(5) 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.
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 make loans to,
accept deposits from, perform services for or otherwise deal
with the Company, or any Affiliates thereof, with the same
rights it would have if it were not Trustee. Any Agent may do
the same with like rights. The Trustee, however, shall be sub
ject to Sections 7.10 and 7.11 hereof.
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 sale of Notes or any money paid to the
Company pursuant to the terms of this Indenture and it shall
not be responsible for any statement in the Notes other than
its certificate of authentication.
Section 7.05. Notice of Defaults.
-------------------
If a Default occurs and is continuing and if it is
known to the Trustee, the Trustee shall mail to each Noteholder
notice of the Default within 30 days after it occurs. Except
in the case of a Default in payment of the principal of, or
premium, if any, or interest on any Note the Trustee may with
hold the notice if and so long as the board of directors of the
Trustee, the executive committee or any trust committee of such
board and/or its Trust Officers in good faith determine(s) that
withholding the notice is in the interests of the Noteholders.
Section 7.06. Reports by Trustee to Holders.
------------------------------
If required by TIA Section 313(a), within 60 days
after May 15 of any year, commencing on May 15 following the
date of this Indenture, the Trustee shall mail to each
Noteholder a brief report dated as of such May 15 that complies
with TIA Section 313(a). The Trustee also shall comply with
the reporting requirements of TIA Section 313(b)(2). The
Trustee shall transmit all such reports by mail as required by
TIA Section 313(c):
(1) to all registered Holders of Notes, as the names
and addresses of such Holders appear on the Registrar's
books; and
(2) to such Holder of Notes as have, within the two
years preceding such transmission, filed their names and
addresses with the Trustee for that purpose.
A copy of each such report at the time of such
mailing to Noteholders shall be filed with the Commission and
each stock exchange on which the Notes are listed as provided
by TIA Section 313(d). The Company shall promptly notify the
Trustee when the Notes are listed on any stock exchange.
Section 7.07. Compensation and Indemnity.
---------------------------
The Company shall pay to the Trustee from time to
time such compensation as shall be agreed in writing between
the Company and the Trustee for its services hereunder (which
compensation shall not be limited by any provision of law in
regard to the compensation of a trustee of an express trust).
The Company shall reimburse the Trustee upon request for all
reasonable disbursements, expenses and advances incurred or
made by it in connection with its duties under this Indenture,
including the reasonable compensation, disbursements and
expenses of the Trustee's agents and counsel and except for any
such disbursement or expense as may be attributable to
negligence or bad faith.
The Company shall indemnify each of the Trustee and
its officers, directors, employees and agents and any predeces
sor Trustee and its officers, directors, employees and agents
for, and hold it harmless against, any and all loss, damage,
claim, liability or reasonable expense, including taxes (other
than taxes based on the income of the Trustee) incurred by it
in connection with the acceptance or performance of its duties
under this Indenture including the reasonable costs and
expenses of defending itself against any claim or liability in
connection with the exercise or performance of any of its pow
ers or duties hereunder (including, without limitation, settle
ment costs). The Trustee shall notify the Company in writing
promptly of any claim asserted against the Trustee for which it
may seek indemnity. However, the failure by the Trustee to so
notify the Company shall not relieve the Company of its obliga
tions hereunder except to the extent the Company is prejudiced
thereby.
Notwithstanding the foregoing, the Company need not
reimburse the Trustee for any expense or indemnify it against
any loss, damage, claim or liability incurred by the Trustee
through its negligence or bad faith. To secure the payment
obligations of the Company in this Section 7.07, the Trustee
shall have a lien prior to the Notes on all money or property
held or collected by the Trustee except such money or property
held in trust to pay principal of and interest on particular
Notes.
When the Trustee incurs expenses or renders services
after an Event of Default specified in of Section 6.01(viii) or
(ix) of this Indenture occurs, the expenses and the
compensation for the services are intended to constitute
expenses of administration under any Bankruptcy Law.
For purposes of this Section 7.07, the term "Trustee"
shall include any trustee appointed pursuant to Article 9.
Section 7.08. Replacement of Trustee.
-----------------------
The Trustee may resign by so notifying the Company in
writing. The Holders of a majority in principal amount of the
outstanding Notes may remove the Trustee by notifying the
removed Trustee in writing and may appoint a successor Trustee
with the Company's written consent which consent shall not be
unreasonably withheld. The Company may remove the Trustee at
its election if:
(1) the Trustee fails to comply with Section 7.10
hereof;
(2) the Trustee is adjudged a bankrupt or an
insolvent;
(3) a receiver or other public officer takes charge
or control of the Trustee or its property or affairs; or
(4) the Trustee otherwise becomes incapable of act
ing.
If the Trustee resigns or is removed or if a vacancy
exists in the office of Trustee for any reason, the Company
shall promptly appoint a successor Trustee.
No resignation or removal of the Trustee shall become
effective until the acceptance of appointment by the successor
Trustee. 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 a majority in
principal amount of the outstanding Notes may petition any
court of competent jurisdiction for the appointment of a suc
cessor Trustee.
If the Trustee fails to comply with Section 7.10
hereof, any Noteholder who has been a bona fide Holder for at
least 6 months may petition any court of competent jurisdiction
for the removal of the Trustee and the appointment of a
successor Trustee if the Trustee fails after written request
thereof by such Noteholder to comply with Section 7.10.
A successor Trustee shall deliver a written accep
tance of its appointment to the retiring Trustee and to the
Company. Immediately following such delivery, the resignation
or removal of the retiring Trustee shall become effective and
the retiring Trustee shall, subject to its rights under
Section 7.07 hereof, transfer all property held by it as
Trustee to the successor Trustee, 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 Noteholder. Notwithstanding
replacement of the Trustee pursuant to this Section 7.08, the
Company's obligations under Section 7.07 hereof shall continue
for the benefit of the retiring Trustee.
Section 7.09. Successor Trustee by
Consolidation, Merger or Conversion.
------------------------------------
If the Trustee consolidates with, merges or converts
into, or transfers all or substantially all of its corporate
trust assets to, another corporation, subject to Section 7.10
hereof, the successor corporation without any further act shall
be the successor Trustee.
Section 7.10. Eligibility; Disqualification.
------------------------------
This Indenture shall always have a Trustee who satis
fies the requirements of TIA Section 310(a)(1) and (2) in every
respect. The Trustee shall have a combined capital and surplus
of at least $50,000,000 as set forth in its most recent pub
lished annual report of condition. The Trustee shall comply
with TIA Section 310(b), including the provision in
Section 310(b)(1). The provisions of TIA Section 310(a)(5)
shall apply to any Person directly or indirectly controlling,
controlled by or under common control with the Company as
obligor of the Notes. The provisions of TIA Section 310 shall
apply to the Company as obligor of the Notes.
Section 7.11. Preferential Collection
of Claims Against Company.
--------------------------
The Trustee shall comply with TIA Section 311(a),
excluding any creditor relationship listed in TIA Section
311(b). A Trustee who has resigned or been removed shall be
subject to TIA Section 311(a) to the extent indicated therein.
The provisions of TIA Section 311 shall apply to the Company as
obligor of the Notes.
Section 7.12. Paying Agents.
--------------
The Company shall cause each Paying Agent other than
the Trustee to execute and deliver to it and the Trustee an
instrument in which such agent shall agree with the Trustee,
subject to the provisions of this Section 7.12:
(A) that it will hold all sums held by it as agent
for the payment of principal of, or premium, if any, or
interest on, the Notes (whether such sums have been paid
to it by the Company or by any obligor on the Notes) in
trust for the benefit of Holders of the Notes or the
Trustee;
(B) that it will at any time during the continuance
of any Event of Default, upon written request from the
Trustee, deliver to the Trustee all sums so held in trust
by it together with a full accounting thereof; and
(C) that it will give the Trustee written notice
within three (3) Business Days of any failure of the Com
pany (or by any obligor on the Notes) in the payment of
any installment of the principal of, premium, if any, or
interest on, the Notes when the same shall be due and
payable.
ARTICLE 8
AMENDMENTS, SUPPLEMENTS AND WAIVERS
Section 8.01. Without Consent of Holders.
---------------------------
The Company and the Guarantors, if any, when
authorized by a Board Resolution, and the Trustee may amend,
waive or supplement this Indenture or the Notes without notice
to or consent of any Noteholder:
(1) to comply with Section 5.01 hereof;
(2) to provide for uncertificated Notes in addition
to or in place of certificated Notes;
(3) to comply with any requirements of the Commis
sion under the TIA and maintain the qualification of this
Indenture under the TIA;
(4) to cure any ambiguity, defect or inconsistency,
or to make any other change that does not adversely affect
the rights of any Noteholder;
(5) to add to the covenants of the Company for the
benefit of the Holders or to surrender any right or power
herein upon the Company;
(6) to add a Guarantor pursuant to the requirements
of Section 4.11;
(7) to evidence and provide the acceptance of the
appointment of a successor Trustee hereunder;
(8) to secure the Notes pursuant to the requirements
of Section 4.10 or otherwise; or
(9) to mortgage, pledge, hypothecate or grant a
security interest in favor of the Trustee for the benefit
of the Holders as additional security for the payment and
performance of the Indenture Obligations, in any property
or assets, including any which are required to be
mortgaged, pledged or hypothecated, or in which a security
interest is required to be granted to the Trustee,
pursuant to this Indenture or otherwise.
The Trustee is hereby authorized to join with the
Company and the Guarantors, if any, in the execution of any
supplemental indenture authorized or permitted by the terms of
this Indenture and to make any further appropriate agreements
and stipulations which may be therein contained, but the
Trustee shall not be obligated to enter into any such
supplemental indenture which adversely affects its own rights,
duties or immunities under this Indenture.
Section 8.02. With Consent of Holders.
------------------------
The Company and the Guarantors, if any, and the
Trustee may modify or supplement this Indenture, the Notes or
the Guarantees, if any, with the written consent of the
Holders of not less than a majority in aggregate principal
amount of the outstanding Notes without notice to any
Noteholder. The Holders of not less than a majority in aggre
gate principal amount of the outstanding Notes may waive com
pliance in a particular instance by the Company or the
Guarantors, if any, with any provision of this Indenture or the
Notes without notice to any Noteholder. Subject to
Section 8.04, without the consent of each Noteholder affected,
however, an amendment, supplement or waiver, including a waiver
pursuant to Section 6.04, may not:
(i) change the Stated Maturity of the principal of,
or any installment of interest on, any Note or reduce the
principal amount thereof or the rate of interest thereon
or change the currency in which any Note or any premium or
the interest thereon is payable, or impair the right to
institute suit for the enforcement of any such payment
after the Stated Maturity thereof;
(ii) amend, change or modify the definition of
"Change of Control" or the obligation of the Company to
make and consummate an offer to purchase the Notes upon a
Change of Control on the terms described in Section 4.15
of this Indenture;
(iii) reduce the percentage in principal amount of the
outstanding Notes, the consent of whose Holders is
required for any such supplemental indenture or the
consent of whose holders is required for any waiver of
compliance with certain provisions of the Indenture or
certain Defaults thereunder and their consequences
provided for in the Indenture or with respect to any
Guarantee;
(iv) modify any of the provisions relating to
supplemental indentures requiring the consent of holders
or relating to the waiver of past defaults or relating to
the waiver of certain covenants, except to increase any
such percentage of outstanding Notes required for such
actions or to provide that certain other provisions of the
Indenture cannot be modified or waived without the consent
of the holder of each Note affected thereby; or
(v) except as otherwise permitted under Section 5.01
of this Indenture, consent to the assignment or transfer
by the Company or any Guarantor of any of its rights and
obligations under this Indenture.
After an amendment, supplement or waiver under this
Section 8.02 becomes effective, the Company shall mail to the
Holders a notice briefly describing the amendment, supplement
or waiver.
Upon the request of the Company and each Guarantor,
if any, accompanied by a copy of a Board Resolution authorizing
the execution of any such supplemental indenture or Guarantee,
and upon the receipt by the Trustee of evidence reasonably
satisfactory to the Trustee of the consent of the Noteholders
as aforesaid and upon receipt by the Trustee of the documents
described in Section 8.06 hereof, the Trustee shall join with
the Company and each Guarantor in the execution of such
supplemental indenture or Guarantee unless such supplemental
indenture or Guarantee affects the Trustee's own rights, duties
or immunities under this Indenture, in which case the Trustee
may in its discretion, but shall not be obligated to, enter
into such supplemental indenture.
It shall not be necessary for the consent of the
Holders under this Section to approve the particular form of
any proposed amendment, supplement or waiver, but it shall be
sufficient if such consent approves the substance thereof.
Section 8.03. Compliance with Trust Indenture Act.
------------------------------------
Every amendment to or supplement of this Indenture or
the Notes shall comply with the TIA as then in effect.
Section 8.04. Revocation and Effect of Consents.
----------------------------------
Until an amendment, supplement, waiver or other
action becomes effective, a consent to it by a Holder of a Note
is a continuing consent conclusive and binding upon such Holder
and every subsequent Holder of the same Note or portion
thereof, and of any Note issued upon the transfer thereof or in
exchange therefor or in place thereof, even if notation of the
consent is not made on any such Note. Any such Holder or
subsequent Holder, however, may revoke the consent as to his
Note or portion of a Note, if the Trustee receives the notice
of revocation before the date the amendment, supplement, waiver
or other action becomes effective.
The Company may, but shall not be obligated to, fix a
record date for the purpose of determining the Holders entitled
to consent to any amendment, supplement, or waiver. If a
record date is fixed, then, such record date shall be not less
than 20 days prior to the first solicitation of such consent,
and notwithstanding the preceding paragraph, those Persons who
were Holders at such record date (or their duly designated
proxies), and only such Persons, shall be entitled to consent
to such amendment, supplement, or waiver or 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 120 days after such record
date unless the consent of the requisite number of Holders has
been obtained.
After an amendment, supplement, waiver or other
action becomes effective, it shall bind every Noteholder,
unless it makes a change described in any of clauses (i)
through (v) of Section 8.02 hereof. In that case the amend
ment, supplement, waiver or other action shall bind each Holder
of a Note who has consented to it and every subsequent Holder
of a Note or portion of a Note that evidences the same debt as
the consenting Holder's Note.
Section 8.05. Notation on or Exchange of Notes.
---------------------------------
If an amendment, supplement, or waiver changes the
terms of a Note, the Trustee may request the Holder of the Note
to deliver it to the Trustee. In such case, the Trustee shall
place an appropriate notation on the Note about the changed
terms and return it to the Holder. Alternatively, if the Com
pany or the Trustee so determines, the Company in exchange for
the Note shall execute and 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 8.06. Trustee To Sign Amendments, etc.
--------------------------------
The Trustee shall sign any amendment, supplement or
waiver authorized pursuant to this Article 8 if the amendment,
supplement or waiver does not adversely affect the rights,
duties, liabilities or immunities of the Trustee. If it does,
the Trustee may, but need not, sign it. In signing or refusing
to sign such amendment, supplement or waiver the Trustee shall
be entitled to receive and, subject to Section 7.01 hereof,
shall be fully protected in relying upon an Officers' Certifi
cate and an Opinion of Counsel stating that such amendment,
supplement or waiver is authorized or permitted by this Inden
ture. The Company may not sign an amendment or supplement
until the Board of Directors of the Company approves it.
ARTICLE 9
DISCHARGE OF INDENTURE; DEFEASANCE
Section 9.01. Satisfaction and Discharge of Indenture.
----------------------------------------
This Indenture will cease to be of further effect
(except as to surviving rights of registration of transfer or
exchange of the Notes, as expressly provided for in this
Indenture) as to all outstanding Notes when (i) either (a) all
the Notes theretofore authenticated and delivered (except lost,
stolen or destroyed Notes which have been replaced or paid)
have been delivered to the Trustee for cancellation or (b) all
Notes not theretofore delivered to the Trustee for cancellation
have become due and payable and the Company or any of the
Guarantors has irrevocably deposited or caused to be deposited
with the Trustee funds in an amount sufficient to pay and
discharge the entire indebtedness on the Notes not theretofore
delivered to the Trustee for cancellation, for the principal
of, premium, if any, and interest to the date of such deposit;
(ii) the Company or any of the Guarantors has paid all other
sums payable under this Indenture by the Company and the
Guarantors, if any; and (iii) the Company and each of the
Guarantors, if any, have delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel each stating that all
conditions precedent under this Indenture relating to the
satisfaction and discharge of this Indenture have been complied
with.
Section 9.02. Defeasance.
-----------
The Company may, at its option and at any time, elect
by Board Resolution to have the obligations of the Company
discharged with respect to the outstanding Notes
("Defeasance"). Such Defeasance means that the Company shall
be deemed to have paid and discharged the entire indebtedness
represented by the outstanding Notes and to have satisfied all
its other obligations under the outstanding Notes and this
Indenture insofar as such outstanding Notes are concerned (and
the Trustee, at the expense of the Company, shall, subject to
Section 9.06 hereof, execute proper instruments acknowledging
the same), except for the following which shall survive until
otherwise terminated or discharged hereunder: (i) the rights of
the Holders of outstanding Notes to receive solely from the
trust funds described in Section 9.04 of this Indenture and as
more fully set forth in such Section, payments in respect of
the principal of, premium, if any, and interest of such Notes
when such payments are due, (ii) the Company's obligations with
respect to the Notes under Article 2 and Section 4.16 of this
Indenture, (iii) the rights, powers, trusts, duties and
immunities of the Trustee hereunder (including claims of, or
payments to, the Trustee under or pursuant to Section 7.07 of
this Indenture), and (iv) Article 9 of this Indenture.
Section 9.03. Covenant Defeasance.
--------------------
The Company may, at its option at any time, elect by
Board Resolution to have the obligations of the Company and any
Guarantor, if any, released with respect to their respective
obligations under Sections 4.02 through 4.12, 4.15, and 4.17
through 4.20 of this Indenture and clauses (ii) and (iii) of
Section 5.01 of this Indenture with respect to the outstanding
Notes on and after the date the conditions in Section 9.04 of
this Indenture are satisfied ("Covenant Defeasance") and any
omission to comply with such obligations shall not constitute a
Default or an Event of Default with respect to the Notes. In
the event Covenant Defeasance occurs, certain events (not
including non-payment, bankruptcy and insolvency events)
described under Section 6.01 of this Indenture will no longer
constitute a Default or an Event of Default with respect to the
Notes.
Section 9.04. Conditions to Defeasance
or Covenant Defeasance.
------------------------
The following shall be the conditions to application
of Section 9.02 or Section 9.03 hereof to the outstanding
Notes:
(i) the Company must irrevocably deposit with the
Trustee, in trust, for the benefit of the Holders of the
Notes, cash in United States dollars, U.S. Government
Obligations, or a combination thereof, in such amounts as
will be sufficient, in the opinion of a nationally
recognized firm of independent public accountants, to pay
the principal of, premium, if any, and interest on the
outstanding Notes on the Stated Maturity of such principal
or installment of principal or interest;
(ii) in the case of Defeasance, the Company shall
have delivered to the Trustee an opinion of independent
counsel in the United States stating that (A) the Company
has received from, or there has been published by, the
Internal Revenue Service a ruling or (B) since the date of
the Indenture, there has been a change in the applicable
federal income tax law or the judicial interpretation
thereof, 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 defeasance and will be subject to federal
income tax on the same amounts, in the same manner and at
the same times as would have been the case if such
defeasance had not occurred;
(iii) in the case of Covenant Defeasance, the Company
shall have delivered to the Trustee an opinion of
independent counsel in the United States to the effect
that the Holders of the outstanding Notes will not
recognize income, gain or loss for federal income tax
purposes as a result of such covenant defeasance and will
be subject to federal income tax on the same amounts, in
the same manner and at the same times as would have been
the case if such covenant defeasance had not occurred;
(iv) no Default or Event of Default shall have
occurred and be continuing on the date of such deposit;
(v) such Defeasance or Covenant Defeasance shall not
result in a breach or violation of, or constitute a
Default under, the Indenture or any other material
agreement or instrument to which the Company or any
Guarantor, if any, is a party or by which it is bound;
(vi) in the case of Defeasance or Covenant
Defeasance, the Company shall have delivered to the
Trustee an opinion of independent counsel to the effect
that (A) the trust funds will not be subject to any rights
of holders of any Indebtedness of the Company, including,
without limitation, those arising under the Indenture
(other than the rights of the Holders of the Notes to
receive the principal of, and interest on, the Notes) and
(B) after the 91st day following the deposit, the trust
funds will not be subject to the effect of any applicable
bankruptcy, insolvency, reorganization or similar laws
affecting creditors rights generally;
(vii) no event or condition shall exist that would
prevent the Company from making payments of the principal
of, premium, if any, and interest on the Notes on the date
of such deposit or at any time ending on the 91st day
after the date of such deposit; and
(viii) the Company shall have delivered to the Trustee
an Officers' Certificate and an Opinion of Counsel, each
stating that all conditions precedent provided for
relating to either the Defeasance or the Covenant
Defeasance, as the case may be, have been complied with.
Section 9.05. Deposited Money and U.S. Government
Obligations To Be Held in Trust;
Other Miscellaneous Provisions.
-----------------------------------
All money and U.S. Government Obligations (including
the proceeds thereof) deposited with the Trustee pursuant to
Section 9.01 or 9.04 hereof in respect of the outstanding Notes
shall be held in trust and applied by the Trustee, in accor
dance 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, if any, and accrued 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 U.S. Government Obligations deposited pursuant to
Section 9.01 or 9.04 hereof or the principal, premium, if any,
and interest received in respect thereof other than any such
tax, fee or other charge which by law is for the account of the
Holders of the outstanding Notes.
Anything in this Article 9 to the contrary notwith
standing, the Trustee shall deliver or pay to the Company from
time to time upon Company Request any money or U.S. Government
Obligations held by it as provided in Section 9.01 or 9.04
hereof which, in the opinion of a nationally-recognized firm of
independent public accountants expressed in a written certifi
cation thereof delivered to the Trustee, are in excess of the
amount thereof which would then be required to be deposited to
effect an equivalent Defeasance or Covenant Defeasance.
Section 9.06. Reinstatement.
--------------
If the Trustee or Paying Agent is unable to apply any
money or U.S. Government Obligations in accordance with
Section 9.01, 9.02 or 9.03 hereof by reason of any legal pro
ceeding or by reason of any order or judgment of any court or
governmental authority enjoining, restraining or otherwise pro
hibiting such application, the Company's obligations under this
Indenture and the Notes shall be revived and reinstated as
though no deposit had occurred pursuant to this Article 9 until
such time as the Trustee or Paying Agent is permitted to apply
all such money or U.S. Government Obligations in accordance
with Section 9.01 hereof; provided, however, that if the Com
pany has made any payment of principal of, premium, if any, or
accrued interest on any Notes because of the reinstatement of
their obligations, the Company shall be subrogated to the
rights of the Holders of such Notes to receive such payment
from the money or U.S. Government Obligations held by the Trus
tee or Paying Agent.
Section 9.07. Moneys Held by Paying Agent.
----------------------------
In connection with the satisfaction and discharge of
this Indenture, all moneys then held by any Paying Agent under
the provisions of this Indenture shall, upon demand of the Com
pany, be paid to the Trustee, or if sufficient moneys have been
deposited pursuant to Section 9.01 hereof, to the Company and
thereupon such Paying Agent shall be released from all further
liability with respect to such moneys.
Section 9.08. Moneys Held by Trustee.
-----------------------
Any moneys deposited with the Trustee or any Paying
Agent or then held by the Company in trust for the payment of
the principal of, or premium, if any, or interest on any Note
that are not applied but remain unclaimed by the Holder of such
Note for two years after the date upon which the principal of,
or premium, if any, or interest on such Note shall have respec
tively become due and payable shall be repaid to the Company
upon Company Request, or if such moneys are then held by the
Company in trust, such moneys shall be released from such
trust; and the Holder of such Note entitled to receive such
payment shall thereafter, as an unsecured general creditor,
look only to the Company for the payment thereof, and all lia
bility of the Trustee or such Paying Agent with respect to such
trust money shall thereupon cease.
ARTICLE 10
MISCELLANEOUS
Section 10.01. Trust Indenture Act Controls.
-----------------------------
If any provision of this Indenture limits, qualifies
or conflicts with another provision which is required to be
included in this Indenture by the TIA, the required provision
shall control.
Section 10.02. Notices.
--------
Any notice or communication shall be given in writing
and delivered in person against written receipt, sent by fac
simile, delivered by commercial courier service or mailed by
first-class mail, postage prepaid, or by a recognized overnight
courier, addressed as follows:
If to the Company:
International Shipholding Corporation
1700 Poydras Center
650 Poydras Street
New Orleans, Louisiana 70130
Attention: Chief Financial Officer
Fax: (504) 529-2078
Copy to:
Jones, Walker, Waechter,
Poitevent, Carrere, Denegre, L.L.P.
201 Saint Charles Avenue
New Orleans, Louisiana 70170
Attention: L.R. McMillan II, Esq.
Fax: (504) 582-8583
If to the Trustee:
The Bank of New York
101 Barclay Street, Fl. 21 W.
New York, New York 10286
Attention: Corporate Trust Administration
Fax: (212) 815-5915
Such notices or communications shall be deemed
effective when delivered by hand, if personally delivered; five
Business Days after being deposited in the mail, postage
prepaid, if mailed; one Business Day after timely delivered to
a next-day air courier guaranteeing overnight delivery and when
receipt is acknowledged by the addressee's telecopier machine,
if telecopied; and shall be sufficiently given if so given
within the time prescribed in this Indenture.
The Company or the Trustee by written notice to the
others may designate additional or different addresses for sub
sequent notices or communications.
Any notice or communication mailed to a Noteholder
shall be mailed to him by first-class mail, postage prepaid, at
his address shown on the register kept by the Registrar and
shall be deemed effective five Business Days after being
deposited in the mail.
Failure to mail a notice or communication to a
Noteholder or any defect in it shall not affect its sufficiency
with respect to other Noteholders. If a notice or
communication to a Noteholder is mailed in the manner provided
above, it shall be deemed duly given, whether or not the
addressee receives it.
In case by reason of the suspension of regular mail
service, or by reason of any other cause, it shall be
impossible to mail any notice as required by this Indenture,
then such method of notification as shall be made with the
approval of the Trustee shall constitute a sufficient mailing
of such notice.
Section 10.03. Communications by Holders
with Other Holders.
-------------------------
Noteholders may communicate pursuant to TIA
Section 312(b) with other Noteholders with respect to their
rights under this Indenture or the Notes. Every Noteholder, by
receiving and holding such Notes acknowledges that the Company,
the Trustee, the Registrar and anyone else shall have the
protection of TIA Section 312(c) and may not be held
accountable by reason of the disclosure of information as to
the names and addresses of the Noteholders pursuant to TIA
Section 312(b).
Section 10.04. 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:
(1) an Officers' Certificate (which shall include
the statements set forth in Section 10.05 below) stating
that, in the opinion of the signers, all conditions prece
dent, if any, provided for in this Indenture relating to
the proposed action have been complied with; and
(2) an Opinion of Counsel (which shall include the
statements set forth in Section 10.05 below) stating that,
in the opinion of such counsel, all such conditions prece
dent have been complied with.
Section 10.05. Statements Required in
Certificate and Opinion.
------------------------
Each certificate and opinion with respect to compli
ance with a condition or covenant provided for in this
Indenture shall include:
(1) a statement that the Person making such certifi
cate 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,
it or he has made such examination or investigation as is
necessary to enable it or him to express an informed
opinion as to whether or not such covenant or condition
has been complied with; and
(4) a statement as to whether or not, in the opinion
of such Person, such covenant or condition has been com
plied with.
Section 10.06. When Treasury Notes Disregarded.
--------------------------------
In determining whether the Holders of the required
aggregate principal amount of Notes have concurred in any direc-
tion, waiver or consent, Notes owned by the Company, or any
other obligor on the Notes or by any Affiliate of any of them
shall be disregarded, except that for the purposes of determin
ing whether the Trustee shall be protected in relying on any
such direction, waiver or consent, only Notes which the Trustee
actually knows are so owned shall be so disregarded. Notes so
owned which have been pledged in good faith shall not be disre
garded if the pledgee establishes to the satisfaction of the
Trustee the pledgee's right so to act with respect to the Notes
and that the pledgee is not the Company, or any other obligor
upon the Notes or any Affiliate of any of them.
Section 10.07. Rules by Trustee and Agents.
----------------------------
The Trustee may make reasonable rules for action by
or meetings of Noteholders. The Registrar and Paying Agent may
make reasonable rules for their functions.
Section 10.08. Business Days; Legal Holidays.
------------------------------
A "Business Day" is a day that is not a Legal
Holiday. A "Legal Holiday" is a Saturday, a Sunday, a
federally-recognized holiday or a day on which banking
institutions are not required to be open in the State of New
York. If a payment date is a Legal Holiday at a place of
payment, payment may be made at that place on the next
succeeding day that is not a Legal Holiday, and no interest
shall accrue for the intervening period.
Section 10.09. Governing Law.
--------------
THIS INDENTURE AND THE NOTES SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK,
AS APPLIED TO CONTRACTS MADE AND PERFORMED WITHIN THE STATE OF
NEW YORK, WITHOUT REGARD TO PRINCIPLES OF CONFLICTS OF LAW.
EACH OF THE PARTIES HERETO AGREES TO SUBMIT TO THE JURISDICTION
OF THE COURTS OF THE STATE OF NEW YORK IN ANY ACTION OR PROCEED
ING ARISING OUT OF OR RELATING TO THIS INDENTURE OR THE NOTES.
Section 10.10. No Adverse Interpretation of Other Agreements.
----------------------------------------------
This Indenture may not be used to interpret another
indenture, loan, security or debt agreement of the Company or
any Subsidiary thereof. No such indenture, loan, security or
debt agreement may be used to interpret this Indenture.
Section 10.11. No Recourse Against Others.
---------------------------
A director, officer, employee, stockholder or incor-
porator, as such, of the Company or any Guarantor shall not
have any liability for any obligations of the Company under the
Notes or the Indenture or for any claim based on, in respect of
or by reason of such obligations or their creations. Each
Noteholder by accepting a Note waives and releases all such
liability. Such waiver and release are part of the
consideration for the issuance of the Notes.
Section 10.12. Successors.
-----------
All agreements of the Company in this Indenture and
the Notes shall bind their respective successors. All agree
ments of the Trustee, any additional trustee and any Paying
Agents in this Indenture shall bind its successor.
Section 10.13. Multiple Counterparts.
----------------------
The parties may sign multiple counterparts of this
Indenture. Each signed counterpart shall be deemed an origi
nal, but all of them together represent one and the same
agreement.
Section 10.14. Table of Contents, Headings, etc.
---------------------------------
The table of contents, cross-reference sheet and
headings of the Articles and Sections of this Indenture have
been inserted for convenience of reference only, are not to be
considered a part hereof, and shall in no way modify or
restrict any of the terms or provisions hereof.
Section 10.15. Separability.
-------------
Each provision of this Indenture shall be considered
separable and if for any reason any provision which is not
essential to the effectuation of the basic purpose of this
Indenture or the Notes shall be invalid, illegal or unenforce
able, the validity, legality and enforceability of the remain
ing provisions shall not in any way be affected or impaired
thereby.
IN WITNESS WHEREOF, the parties have caused this
Indenture to be duly executed all as of the date and year first
written above.
INTERNATIONAL SHIPHOLDING
CORPORATION
By: ____________________
Name:
Title:
By: ____________________
Name:
Title:
THE BANK OF NEW YORK,
as Trustee
By: ____________________
Name:
Title:
SCHEDULE I
PERMITTED LIENS
Any and all security interests, rights of set off,
liens or encumbrances of any sort on deposit accounts created
pursuant to the law of any state in which International
Shipholding Corporation maintains any such deposit accounts.
EXHIBIT A
(FACE OF NOTE)
[FORM OF NOTE]
THESE NOTES HAVE NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR
ANY STATE SECURITIES LAWS. NEITHER THIS NOTE NOR ANY INTEREST
OR PARTICIPATION HEREIN MAY BE REOFFERED, SOLD, ASSIGNED,
TRANSFERRED, PLEDGED, ENCUMBERED OR OTHERWISE DISPOSED OF IN
THE ABSENCE OF SUCH REGISTRATION OR UNLESS SUCH TRANSACTION IS
EXEMPT FROM, OR NOT SUBJECT TO, REGISTRATION.
THE HOLDER OF THIS NOTE BY ITS ACCEPTANCE HEREOF
AGREES TO OFFER, SELL OR OTHERWISE TRANSFER SUCH NOTE, PRIOR TO
(X) THE DATE WHICH IS TWO YEARS AFTER THE LATER OF THE ORIGINAL
ISSUE DATE HEREOF AND THE LAST DATE ON WHICH THE COMPANY OR ANY
AFFILIATE OF THE COMPANY WAS THE OWNER OF THIS NOTE (OR ANY
PREDECESSOR NOTE) AND (Y) SUCH LATER DATE, IF ANY, AS MAY BE
REQUIRED BY ANY SUBSEQUENT CHANGE IN APPLICABLE LAW (THE
"RESALE RESTRICTION TERMINATION DATE"), ONLY (A) TO THE
COMPANY, (B) PURSUANT TO A REGISTRATION STATEMENT WHICH HAS
BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT, (C) FOR SO
LONG AS THE NOTES ARE ELIGIBLE FOR RESALE PURSUANT TO RULE
144A, TO A PERSON IT REASONABLY BELIEVES IS A "QUALIFIED
INSTITUTIONAL BUYER" AS DEFINED IN RULE 144A UNDER THE
SECURITIES ACT THAT PURCHASES FOR ITS OWN ACCOUNT OR FOR THE
ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER TO WHOM NOTICE IS
GIVEN THAT THE TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A
(AS INDICATED BY THE BOX CHECKED BY THE TRANSFEROR ON THE CER
TIFICATE OF TRANSFER ON THE REVERSE OF THE NOTES), (D) PURSUANT
TO OFFERS AND SALES THAT OCCUR OUTSIDE THE UNITED STATES WITHIN
THE MEANING OF REGULATION S UNDER THE SECURITIES ACT, (E) TO AN
INSTITUTIONAL "ACCREDITED INVESTOR" WITHIN THE MEANING OF
SUBPARAGRAPH (a)(1), (a)(2), (a)(3) OR (a)(7) OF RULE 501 UNDER
THE SECURITIES ACT THAT IS PURCHASING NOTES WITH AN AGGREGATE
PRINCIPAL AMOUNT, PLUS ACCRUED AND UNPAID INTEREST, IF ANY, OF
AT LEAST $250,000 AND THAT IS ACQUIRING THE NOTE FOR ITS OWN
ACCOUNT, OR FOR THE ACCOUNT OF SUCH AN INSTITUTIONAL
"ACCREDITED INVESTOR", FOR INVESTMENT PURPOSES AND NOT WITH A
VIEW TO, OR FOR OFFER OR SALE IN CONNECTION WITH, ANY
DISTRIBUTION IN VIOLATION OF THE SECURITIES ACT, OR (F)
PURSUANT TO ANOTHER AVAILABLE EXEMPTION FROM THE REGISTRATION
REQUIREMENTS OF THE SECURITIES ACT, SUBJECT TO THE COMPANY'S
AND THE TRUSTEE'S RIGHT PRIOR TO ANY SUCH OFFER, SALE OR
TRANSFER PURSUANT TO CLAUSE (D), (E) OR (F) TO REQUIRE THE
DELIVERY OF AN OPINION OF COUNSEL, CERTIFICATION AND/OR OTHER
INFORMATION SATISFACTORY TO EACH OF THEM, AND IN EACH OF THE
FOREGOING CASES, TO REQUIRE THAT A CERTIFICATE OF TRANSFER IN
THE FORM APPEARING ON THE OTHER SIDE OF THIS NOTE BE COMPLETED
AND DELIVERED BY THE TRANSFEROR TO THEM. THIS LEGEND WILL BE
REMOVED UPON THE REQUEST OF THE HOLDER AFTER THE RESALE
RESTRICTION TERMINATION DATE.
CUSIP Number
INTERNATIONAL SHIPHOLDING CORPORATION
7 3/4% SENIOR NOTES DUE 2007
No. ________ $_____________
International Shipholding Corporation, a Delaware
corporation (the "Company", which term includes any successor
corporation), for value received promises to pay to
________________________ or registered assigns the principal
sum of ___________________ Dollars, on October 15, 2007.
Interest Payment Dates: April 15 and October 15,
commencing April 15, 1998.
Record Dates: April 1 and October 1
Reference is made to the further provisions of this
Note contained herein, which will for all purposes have the
same effect as if set forth at this place.
IN WITNESS WHEREOF, the Company has caused this Note
to be signed manually or by facsimile by its duly authorized
officers.
INTERNATIONAL SHIPHOLDING
CORPORATION
By: ___________________________
By: ___________________________
Certificate of Authentication:
This is one of the 7 3/4% Senior
Notes due 2007 referred to in
the within-mentioned Indenture
Dated:
THE BANK OF NEW YORK,
as Trustee
By: ______________________________
Authorized Signatory
(REVERSE SIDE)
INTERNATIONAL SHIPHOLDING CORPORATION
7 3/4% SENIOR NOTES DUE 2007
1. INTEREST.
International Shipholding Corporation, a Delaware
corporation (the "Company"), promises to pay interest on the
principal amount of this Note semiannually on April 15 and
October 15 of each year (each an "Interest Payment Date"),
commencing on April 15, 1998, at the rate of 7 3/4% per annum.
Interest will be computed on the basis of a 360-day year of
twelve 30-day months. Interest on the Notes will accrue from
the most recent date to which interest has been paid or, if no
interest has been paid, from the date of the original issuance
of the Notes.
The Company shall pay interest on overdue principal,
and on overdue premium, if any, and overdue interest, to the
extent lawful, at the rate of interest borne by the Notes.
2. METHOD OF PAYMENT.
The Company will pay interest on this Note provided
for in Paragraph 1 above (except defaulted interest) to the
person who is the registered Holder of this Note at the close
of business on the April 1 or October 1 preceding the Interest
Payment Date (whether or not such day is a Business Day). The
Holder must surrender this Note to a Paying Agent to collect
principal payments. The Company will pay principal, premium,
if any, and interest in money of the United States that at the
time of payment is legal tender for payment of public and
private debts; provided, however, that the Company may pay
principal, premium, if any, and interest by check payable in
such money. It may mail an interest check to the Holder's reg
istered address.
3. PAYING AGENT AND REGISTRAR.
Initially, The Bank of New York, a New York banking
corporation (the "Trustee"), will act as Paying Agent and
Registrar. The Company may change any Paying Agent or
Registrar without notice to the Holders of the Notes. Neither
the Company nor any of its Subsidiaries or Affiliates may act
as Paying Agent but may act as Registrar or co-Registrar.
4. INDENTURE; RESTRICTIVE COVENANTS.
The Company issued this Note under an Indenture dated
as of January 22, 1998 (the "Indenture") between the Company
and the Trustee. The terms of this Note include those stated
in the Indenture and those made part of the Indenture by refer
ence to the Trust Indenture Act of 1939 (15 U.S. Code
sections 77aaa-77bbbb) as in effect on the date of the Inden
ture. This Note is subject to all such terms, and the Holder
of this Note is referred to the Indenture and said Trust Inden
ture Act for a statement of them. All capitalized terms in
this Note, unless otherwise defined, have the meanings assigned
to them by the Indenture.
The Notes are general unsecured senior obligations of
the Company limited (except as otherwise provided in the
Indenture) in aggregate principal amount to $160,000,000 which
may be issued under the Indenture; provided the principal
amount of Notes issued on the Issue Date will not exceed
$110,000,000. The Indenture imposes certain restrictions on,
among other things, the incurrence of indebtedness, the
incurrence of liens, the making of certain investments, mergers
and sale of assets, the payments of dividends on or the
repurchase of, capital stock of the Company and its
Subsidiaries, certain other restricted payments by the Company
and its Subsidiaries, certain transactions with, and
investments in, its Affiliates, certain sale-leaseback
transactions and a provision regarding change-of-control
transactions.
5. REDEMPTION.
Except for certain redemptions described in Section 6
below, the Company may not redeem the Notes, in whole or in
part, at any time.
6. OFFERS TO PURCHASE.
The Indenture requires that certain proceeds from
Asset Sales be used, subject to further limitations contained
therein, to make an offer to purchase certain amounts of Notes
in accordance with the procedures set forth in the Indenture.
The Company is also required to make an offer to purchase Notes
upon occurrence of a Change of Control in accordance with pro
cedures set forth in the Indenture.
7. REGISTRATION RIGHTS.
Pursuant to the Registration Rights Agreement among
the Company and Citicorp Securities, Inc., Citibank Canada
Securities Limited and Citibank International plc, as initial
purchasers of the Notes, the Company will be obligated to con
summate an exchange offer pursuant to which the Holder of this
Note shall have the right to exchange this Note for Notes of a
separate series issued under the Indenture (or a trust inden
ture substantially identical to the Indenture in accordance
with the terms of the Registration Rights Agreement) which have
been registered under the Securities Act, in like principal
amount and having substantially identical terms as the Notes.
The Holders shall be entitled to receive certain additional
interest payments in the event such exchange offer is not con
summated and upon certain other conditions, all pursuant to and
in accordance with the terms of the Registration Rights
Agreement.
8. DENOMINATIONS, TRANSFER, EXCHANGE.
The Notes are in registered form without coupons in
denominations of $1,000 and integral multiples thereof. A
Holder may register the transfer or exchange of Notes in accor
dance with the Indenture. The Registrar may require a Holder,
among other things, to furnish appropriate endorsements and
transfer documents and to pay any taxes and fees required by
law or permitted by the Indenture. The Registrar need not reg
ister the transfer of or exchange any Note selected for redemp
tion or register the transfer of or exchange any Note for a
period of 15 days before a selection of Notes to be redeemed or
any Note after it is called for redemption in whole or in part,
except the unredeemed portion of any Note being redeemed in
part.
9. PERSONS DEEMED OWNERS.
The registered Holder of this Note may be treated as
the owner of it for all purposes.
10. UNCLAIMED MONEY.
If money for the payment of principal, premium or
interest on any Note remains unclaimed for two years, the Trus
tee or Paying Agent will pay the money back to the Company at
its request. After that, Holders entitled to money must look
to the Company for payment as general creditors unless an
"abandoned property" law designates another person.
11. AMENDMENT, SUPPLEMENT AND WAIVER.
Subject to certain exceptions, the Indenture or the
Notes may be modified, amended or supplemented by the Company
and the Trustee with the consent of the Holders of at least a
majority in principal amount of the Notes then outstanding and
any existing Default or compliance with any provision may be
waived in a particular instance with the consent of the Holders
of a majority in principal amount of the Notes then outstand
ing. Without the consent of Holders, the Company and the
Guarantors, if any, and the Trustee may amend the Indenture or
the Notes or supplement the Indenture for certain specified
purposes including, but not limited to, providing for
uncertificated Notes in addition to certificated Notes,
complying with Article Five of the Indenture, complying with
any requirements of the Commission under the TIA, adding a
Guarantor pursuant to the requirements of Section 4.11,
securing the Notes pursuant to the requirements of Section 4.10
and curing any ambiguity, defect or inconsistency, or making
any other change that does not adversely affect the rights of
any Holder.
12. SUCCESSOR ENTITY.
When a successor corporation assumes all the obliga
tions of its predecessor under the Notes and the Indenture and
immediately before and thereafter no Default exists and certain
other conditions are satisfied, the predecessor corporation
will be released from those obligations.
13. DEFAULTS AND REMEDIES.
Events of Default are set forth in the Indenture. If
an Event of Default (other than an Event of Default pursuant to
Sections 6.01(viii) or (ix) of the Indenture with respect to
the Company) occurs and is continuing, the Trustee by notice to
the Company, or the Holders of not less than 25% in aggregate
principal amount of the Notes then outstanding, may declare to
be immediately due and payable the entire principal amount of
all the Notes then outstanding plus accrued but unpaid interest
to the date of acceleration; provided, however, that after such
acceleration but before judgment or decree based on such
acceleration is obtained by the Trustee, the Holders of a
majority in aggregate principal amount of the outstanding Notes
may, under certain circumstances, rescind and annul such accel
eration and its consequences if all existing Events of Default,
other than the nonpayment of principal, premium or interest
that has become due solely because of the acceleration, have
been cured or waived and if the rescission would not conflict
with any judgment or decree. No such rescission shall affect
any subsequent Default or impair any right consequent thereto.
In case an Event of Default specified in Sections 6.01(viii) or
(ix) of the Indenture with respect to the Company occurs, such
principal amount, together with premium, if any, and interest
with respect to all of the Notes, shall be due and payable
immediately without any declaration or other act on the part of
the Trustee or the Holders of the Notes.
14. TRUSTEE DEALINGS WITH THE COMPANY.
The Trustee under the Indenture, in its individual or
any other capacity, may make loans to, accept deposits from,
and perform services for the Company, and may otherwise deal
with the Company, as if it were not Trustee.
15. NO RECOURSE AGAINST OTHERS.
As more fully described in the Indenture, a director,
officer, employee or stockholder, as such, of the Company shall
not have any liability for any obligations of the Company or
under the Notes or the Indenture or for any claim based on, in
respect or by reason of, such obligations or their creation.
The Holder of this Note by accepting this Note waives and
releases all such liability. The waiver and release are part
of the consideration for the issuance of this Note.
16. DEFEASANCE AND COVENANT DEFEASANCE.
The Indenture contains provisions for defeasance of
the entire indebtedness on this Note and for defeasance of cer
tain covenants in the Indenture upon compliance by the Company
with certain conditions set forth in the Indenture.
17. ABBREVIATIONS.
Customary abbreviations may be used in the name of a
Holder of a Note or an assignee, such as: TEN COM (= tenants
in common), TEN ENT (= tenants by the entireties), JT TEN
(joint tenants with right of survivorship and not as tenants in
common), CUST (= Custodian), and U/G/M/A (Uniform Gifts to
Minors Act).
18. CUSIP NUMBERS.
Pursuant to a recommendation promulgated by the Com
mittee on Uniform Securities Identification Procedures, the
Company has caused CUSIP Numbers to be printed on the Notes and
has directed the Trustee to use CUSIP numbers in notices of
redemption as a convenience to Holders of the Notes. 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.
19. GOVERNING LAW.
THIS INDENTURE AND THE NOTES SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK,
AS APPLIED TO CONTRACTS MADE AND PERFORMED WITHIN THE STATE OF
NEW YORK, WITHOUT REGARD TO PRINCIPLES OF CONFLICTS OF LAW.
EACH OF THE PARTIES HERETO AGREES TO SUBMIT TO THE JURISDICTION
OF THE COURTS OF THE STATE OF NEW YORK IN ANY ACTION OR PRO
CEEDING ARISING OUT OF OR RELATING TO THIS INDENTURE OR THE
NOTES.
THE COMPANY WILL FURNISH TO ANY HOLDER OF A NOTE UPON
WRITTEN REQUEST AND WITHOUT CHARGE A COPY OF THE INDENTURE.
REQUESTS MAY BE MADE TO: INTERNATIONAL SHIPHOLDING
CORPORATION, 1700 Poydras Center, 650 Poydras Street, New
Orleans, Louisiana 70130, Attention: Chief Financial Officer.
ASSIGNMENT
I or we assign and transfer this Note to:
(Insert assignee's social security or tax I.D. number)
_______________________________________________________________
_______________________________________________________________
_______________________________________________________________
_______________________________________________________________
(Print or type name, address and zip code of assignee)
and irrevocably appoint:
_______________________________________________________________
_______________________________________________________________
Agent to transfer this Note on the books of the Company. The
Agent may substitute another to act for him.
[Check One]
[ ] (a) this Note is being transferred in compliance
with the exemption from registration under the
Securities Act provided by Rule 144A thereunder.
or
[ ] (b) this Note is being transferred other than in
accordance with (a) above and documents are being
furnished which comply with the conditions of
transfer set forth in this Note and the Indenture.
If none of the foregoing boxes is checked, the Trustee or Reg
istrar 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 2.15 of the Indenture shall have been
satisfied.
Date:____________________ Your Signature:__________________
_________________________________
(Sign exactly as your name
appears on the other side of
this Note)
Signature Guarantee: _________________________________
Signatures must be guaranteed by an "eligible
guarantor institution" meeting the requirements of the
Registrar, which include membership or participation in STAMP
or such other "signature guarantee program" as may be
determined by the Registrar in addition to, or in substitution
for, STAMP, all in accordance with the Securities Exchange Act
of 1934, as amended.
TO BE COMPLETED BY PURCHASER IF (a) 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 informa
tion 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
OPTION OF HOLDER TO ELECT PURCHASE
If you want to elect to have all or any part of this
Note purchased by the Company pursuant to Section 4.08 or
Section 4.15 of the Indenture, check the appropriate box:
Section 4.08 Section 4.15
If you want to have only part of the Note purchased
by the Company pursuant to Section 4.08 or Section 4.15 of the
Indenture, state the amount you elect to have purchased:
$_________________
Date: ____________
Your Signature: _____________________
(Sign exactly as your name appears on
the face of this Note)
___________________________
Signature Guarantee
Signatures must be guaranteed by an "eligible
guarantor institution" meeting the requirements of the
Registrar, which will include membership or participation in
STAMP or such other "signature guarantee program" as may be
determined by the Registrar in addition to, or in substitution
for, STAMP, all in accordance with the Securities Exchange Act
of 1934, as amended.
EXHIBIT B
FORM OF LEGEND FOR GLOBAL NOTES
Any Global Note authenticated and delivered hereunder
shall bear a legend (which would be in addition to any other
legends required in the case of a Restricted Security) in sub
stantially the following form:
THIS NOTE IS A GLOBAL NOTE WITHIN THE MEANING
OF THE INDENTURE HEREINAFTER REFERRED TO AND IS
REGISTERED IN THE NAME OF A DEPOSITORY OR A NOMINEE
OF A DEPOSITORY. 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
COMPANY 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 REPRE
SENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE &
CO. OR 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 INTER
EST HEREIN.
EXHIBIT C
Form of Certificate to Be
Delivered in Connection with
Transfers to Non-QIB Accredited Investors
-----------------------------------------
___________, ____
Re: International Shipholding Corporation
(the "Company") 7 3/4% Senior Notes
due 2007 (the "Notes")
-------------------------------------
Dear Sirs:
In connection with our proposed purchase of $_______
aggregate principal amount of the Notes, we confirm that:
1. We understand that any subsequent transfer of
the Notes is subject to certain restrictions and condi
tions set forth in the Indenture dated as of January 22,
1998 relating to the Notes and the undersigned agrees to
be bound by, and not to resell, pledge or otherwise
transfer the Notes except in compliance with, such
restrictions and conditions and the Securities Act of
1933, as amended (the "Securities Act").
2. We understand that the Notes have not been reg
istered under the Securities Act, and that the Notes may
not be offered or sold except as permitted in the follow
ing sentence. We agree, on our own behalf and on behalf
of any accounts for which we are acting as hereinafter
stated, that if we should sell any Notes within two years
after the original issuance of the Notes, we will do so
only (A) to the Company, (B) inside the United States in
compliance with Rule 144A under the Securities Act, to a
"qualified institutional buyer" (as defined in Rule 144A),
(C) inside the United States to an institutional
"accredited investor" (as defined below) that is
purchasing Notes with an aggregate principal amount, plus
accrued and unpaid interest, if any, of at least $250,000
and that, prior to such transfer, furnishes to you a
signed letter substantially in the form of this letter,
(D) outside the United States to a foreign person in
compliance with Rule 904 of Regulation S under the
Securities Act, (E) pursuant to the exemption from
registration provided by Rule 144 under the Securities Act
(if available), or (F) pursuant to an effective
registration statement under the Securities Act, and we
further agree to provide to any person purchasing any of
the Notes from us a notice advising such purchaser that
resales of the Notes are restricted as stated herein.
3. We understand that, on any proposed resale of
any Notes, we will be required to furnish to you and the
Company such certifications, legal opinions and other
information as you and the Company may reasonably require
to confirm that the proposed sale complies with the fore
going restrictions. We further understand that the Notes
purchased by us will bear a legend to the foregoing
effect.
4. We are an "accredited investor" (as defined in
Rule 501(a)(1), (2), (3) or (7) under the Securities Act)
and have such knowledge and experience in financial and
business matters as to be capable of evaluating the merits
and risks of our investment in the Notes, and we and any
accounts for which we are acting are each able to bear the
economic risk of our or its investment.
5. We are acquiring the Notes purchased by us for
our own account or for one or more accounts (each of which
is an institutional "accredited investor") as to each of
which we exercise sole investment discretion.
You and the Company are entitled to rely upon this
letter and are irrevocably authorized to produce this letter or
a copy hereof to any interested party in any administrative or
legal proceedings or official inquiry with respect to the mat
ters covered hereby.
Very truly yours,
[Name of Transferee]
By: ___________________________
Authorized Signature
EXHIBIT D
Form of Certificate to Be
Delivered in Connection with
Transfers Pursuant to Regulation S
----------------------------------
______________, ____
[ ]
Re: International Shipholding Corporation
(the "Company") 7 3/4% Senior Notes
due 2007 (the "Notes")
-------------------------------------
Dear Sirs:
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 Regu
lation 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 origi
nated, 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 facili
ties of a designated off-shore securities market and nei
ther we nor any person acting on our behalf knows that the
transaction has been pre-arranged 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;
(5) we understand that, on any proposed resale of
any Notes, we will be required to furnish to you and the
Company such certifications, legal opinions and other
information as you and the Company may reasonably require
to confirm that the proposed sale complies with the fore
going restrictions. We further understand that the Notes
purchased by us will bear a legend to the foregoing
effect; and
(6) we have advised the transferee of the transfer
restrictions applicable to the Notes.
You and the Company are entitled to rely upon this
letter and are irrevocably authorized to produce this letter or
a copy hereof to any interested party in any administrative or
legal proceedings or official inquiry with respect to the mat
ters covered hereby. Terms used in this certificate have the
meanings set forth in Regulation S.
Very truly yours,
[Name of Transferor]
By: ___________________________
Authorized Signature
REGISTRATION RIGHTS AGREEMENT
Dated as of January 22, 1998
by and among
INTERNATIONAL SHIPHOLDING CORPORATION
and
CITICORP SECURITIES, INC.,
CITIBANK CANADA SECURITIES LIMITED
and
CITIBANK INTERNATIONAL PLC
as Initial Purchasers
_________________________________
$110,000,000
7 3/4% SENIOR NOTES DUE 2007
TABLE OF CONTENTS
-----------------
Page
1. Definitions 1
2. Exchange Offer 5
3. Shelf Registration 9
(a) Shelf Registration 9
(b) Subsequent Shelf Registrations 10
(c) Supplements and Amendments 10
4. Additional Amounts 11
5. Registration Procedures 13
6. Registration Expenses 24
7. Indemnification 25
8. Rules 144 and 144A 29
9. Underwritten Registrations 30
10. Miscellaneous 30
(a) Remedies 30
(b) No Inconsistent Agreements 30
(c) Adjustments Affecting Registrable Notes 31
(d) Amendments and Waivers 31
(e) Notices 31
(f) Successors and Assigns 33
(g) Counterparts 33
(h) Headings 33
(i) Governing Law 33
(j) Severability 33
(k) Notes Held by the Company or Its Affiliates 34
(l) Third Party Beneficiaries 34
(m) Entire Agreement 34
REGISTRATION RIGHTS AGREEMENT
-----------------------------
This Registration Rights Agreement (the "Agreement")
is made and entered into as of January 22, 1998, by and among
International Shipholding Corporation, a Delaware corporation
(the "Company"), and Citicorp Securities, Inc., Citibank Canada
Securities Limited and Citibank International plc
(collectively, the "Initial Purchasers").
This Agreement is entered into in connection with the
Purchase Agreement, dated January 14, 1998, by and among the
Company and the Initial Purchasers (the "Purchase Agreement")
relating to the sale by the Company to the Initial Purchasers
of $110,000,000 aggregate principal amount of the Company's
7 3/4% Senior Notes due 2007 (the "Notes"). In order to induce
the Initial Purchasers to enter into the Purchase Agreement,
the Company has agreed to provide the registration rights set
forth in this Agreement for the benefit of the holders of
Registrable Notes (as defined), including, without limitation,
the Initial Purchasers. The execution and delivery of this
Agreement is a condition to the Initial Purchasers' obligation
to purchase the Notes under the Purchase Agreement.
The parties hereby agree as follows:
1. Definitions
-----------
As used in this Agreement, the following terms shall
have the following meanings:
Additional Amounts: See Section 4(a).
Advice: See the last paragraph of Section 5.
Agreement: See the first introductory paragraph to
this Agreement.
Applicable Period: See the second paragraph of
Section 2(b).
Business Day: A day that is not a Saturday, a
Sunday, or a day on which banking institutions in New York, New
York are required to be closed.
Closing Date: The Closing Date as defined in the
Purchase Agreement.
Company: See the first introductory paragraph to
this Agreement.
Effectiveness Date: The 150th day after the Issue
Date, in the case of the Exchange Offer Registration Statement,
and the 150th day after the delivery of the Shelf Notice, in
the case of the Shelf Registration Statement.
Effectiveness Period: See Section 3(a).
Event Date: See Section 4(b).
Exchange Act: The Securities Exchange Act of 1934,
as amended, and the rules and regulations of the SEC
promulgated thereunder.
Exchange Notes: See Section 2(a).
Exchange Offer: See Section 2(a).
Exchange Offer Registration Statement: See
Section 2(a).
Filing Date: The 60th day after the Issue Date.
Holder: Any registered holder of Registrable Notes.
Indemnified Person: See Section 7(c).
Indemnifying Person: See Section 7(c).
Indenture: The Indenture, dated as of January 22,
1998, by and between the Company and The Bank of New York, as
trustee, pursuant to which the Notes are being issued, as
amended or supplemented from time to time in accordance with
the terms thereof.
Initial Purchasers: See the first introductory
paragraph to this Agreement.
Inspectors: See Section 5(o).
Issue Date: The date on which the original Notes
were sold to the Initial Purchasers pursuant to the Purchase
Agreement.
NASD: National Association of Securities Dealers,
Inc.
Notes: See the second introductory paragraph to this
Agreement.
Participant: See Section 7(a).
Participating Broker-Dealer: See the first paragraph
of Section 2(b).
Person: An individual, trustee, corporation,
partnership, limited liability company, joint stock company,
trust, unincorporated association, union, business association,
firm or other legal entity.
Private Exchange: See the third paragraph of Section
2(b).
Private Exchange Notes: See the third paragraph of
Section 2(b).
Prospectus: The prospectus included in any
Registration Statement (including, without limitation, any
prospectus subject to completion and a prospectus that includes
any information previously omitted from a prospectus filed as
part of an effective registration statement in reliance upon
Rule 430A promulgated under the Securities Act), as amended or
supplemented by any prospectus supplement, with respect to the
terms of the offering of any portion of the Registrable Notes
covered by such Registration Statement, and all other
amendments and supplements to the Prospectus, including
post-effective amendments, and all material incorporated by
reference or deemed to be incorporated by reference in such
Prospectus.
Purchase Agreement: See the second introductory
paragraph to this Agreement.
Records: See Section 5(o).
Registrable Notes: Each Note upon original issuance
thereof and at all times subsequent thereto, each Exchange Note
as to which Section 2(c)(iv) hereof is applicable upon original
issuance thereof and at all times subsequent thereto and each
Private Exchange Note upon original issuance thereof and at all
times subsequent thereto, until, in the case of any such Note,
Exchange Note or Private Exchange Note, as the case may be, the
earliest to occur of (i) a Registration Statement (other than,
with respect to any Exchange Note as to which Section 2(c)(iv)
hereof is applicable) covering such Note, Exchange Note or
Private Exchange Note, as the case may be, has been declared
effective by the SEC and such Note, Exchange Note or Private
Exchange Note, as the case may be, has been disposed of in
accordance with such effective Registration Statement,
(ii) such Note, Exchange Note or Private Exchange Note, as the
case may be, is sold in compliance with Rule 144, (iii) in the
case of any Note, such Note has been exchanged pursuant to the
Exchange Offer for an Exchange Note or Exchange Notes which may
be resold without restriction under federal securities laws, or
(iv) such Note, Exchange Note or Private Exchange Note, as the
case may be, ceases to be outstanding for purposes of the
Indenture.
Registration Statement: Any registration statement
of the Company, including, but not limited to, the Exchange
Offer Registration Statement, that covers any of the
Registrable Notes pursuant to the provisions of this Agreement,
including the Prospectus, amendments and supplements to such
registration statement, including post-effective amendments,
all exhibits, and all material incorporated by reference or
deemed to be incorporated by reference in such registration
statement.
Rule 144: Rule 144 under the Securities Act, as such
Rule may be amended from time to time, or any similar rule
(other than Rule 144A) or regulation hereafter adopted by the
SEC providing for offers and sales of securities made in
compliance therewith resulting in offers and sales by
subsequent holders that are not affiliates of an issuer of such
securities being free of the registration and prospectus
delivery requirements of the Securities Act.
Rule 144A: Rule 144A under the Securities Act, as
such Rule may be amended from time to time, or any similar rule
(other than Rule 144) or regulation hereafter adopted by the
SEC.
Rule 415: Rule 415 under the Securities Act, as such
Rule may be amended from time to time, or any similar rule or
regulation hereafter adopted by the SEC.
SEC: The Securities and Exchange Commission.
Securities Act: The Securities Act of 1933, as
amended, and the rules and regulations of the SEC promulgated
thereunder.
Shelf Notice: See Section 2(c).
Shelf Registration: See Section 3(b).
Shelf Registration Statement: See Section 3(a).
Subsequent Shelf Registration: See Section 3(b).
TIA: The Trust Indenture Act of 1939, as amended.
Transfer Restricted Notes means each outstanding Note
until (i) the date on which such Note has been exchanged for a
freely transferable Exchange Note in the Exchange Offer,
(ii) the date on which such Note has been effectively
registered under the Securities Act and disposed of in
accordance with the Shelf Registration Statement or (iii) the
date on which such Senior Note is distributed to the public
pursuant to Rule 144 or is salable pursuant to Rule 144(k).
Trustee: The trustee under the Indenture and, if
existent, the trustee under any indenture governing the
Exchange Notes and Private Exchange Notes (if any).
Underwritten registration or underwritten offering:
A registration in which securities of the Company are sold to
an underwriter for reoffering to the public.
2. Exchange Offer
--------------
(a) The Company agrees to file with the SEC no later than the
Filing Date, an offer to exchange (the "Exchange Offer") any
and all of the Registrable Notes (other than Private Exchange
Notes, if any) for a like aggregate principal amount of debt
securities of the Company which are identical in all material
respects to the Notes (the "Exchange Notes") (and which are
entitled to the benefits of the Indenture or a trust indenture
which is identical in all material respects to the Indenture
(other than such changes to the Indenture or any such identical
trust indenture as are necessary to comply with any
requirements of the SEC to effect or maintain the qualification
thereof under the TIA) and which, in either case, has been
qualified under the TIA), except that the Exchange Notes shall
have been registered pursuant to an effective Registration
Statement under the Securities Act and shall contain no
restrictive legend thereon. The Exchange Offer shall be
registered under the Securities Act on the appropriate form
(the "Exchange Offer Registration Statement") and shall comply
with all applicable tender offer rules and regulations under
the Exchange Act. The Company agrees to use its best efforts
to (i) cause the Exchange Offer Registration Statement to be
declared effective under the Securities Act on or before the
Effectiveness Date; (ii) keep the Exchange Offer open for not
less than 30 calendar days (or longer if required by applicable
law) after the date that notice of the Exchange Offer is first
mailed to Holders; and (iii) consummate the Exchange Offer on
or prior to the 30th day following the date on which the
Exchange Offer Registration Statement is declared effective.
If after such Exchange Offer Registration Statement is
initially declared effective by the SEC, the Exchange Offer or
the issuance of the Exchange Notes thereunder is interfered
with by any stop order, injunction or other order or
requirement of the SEC or any other governmental agency or
court, such Exchange Offer Registration Statement shall be
deemed not to have become effective for purposes of this
Agreement. Each Holder who participates in the Exchange Offer
will be required to represent that any Exchange Notes received
by it will be acquired in the ordinary course of its business,
that at the time of the consummation of the Exchange Offer such
Holder will have no arrangement or understanding with any
Person to participate in the distribution of the Exchange
Notes, that such Holder is not an affiliate of the Company
within the meaning of Rule 405 under the Securities Act, or if
it is an affiliate, it will comply with the registration and
prospectus delivery requirements of the Securities Act to the
extent applicable and any additional representations that in
the written opinion of counsel to the Company are necessary
under then-existing interpretations of the SEC in order for the
Exchange Offer Registration Statement to be declared effective.
In addition, if the Holder is not a Participating Broker-
Dealer, it will be required to represent that it is not engaged
in, and does not intend to engage in, the distribution of the
Exchange Notes. If the Holder is a Participating Broker-Dealer
that will receive Exchange Notes for its own account in
exchange for Notes that were acquired as a result of market-
making activities or other trading activities, it will be
required to acknowledge that it will deliver a prospectus in
connection with any resale of such Exchange Notes. Upon
consummation of the Exchange Offer in accordance with this
Section 2, the provisions of this Agreement shall continue to
apply, mutatis mutandis, solely with respect to Registrable
Notes that are Private Exchange Notes and Exchange Notes held
by Participating Broker-Dealers, and the Company shall have no
further obligation to register Registrable Notes (other than
Private Exchange Notes and other than in respect of any
Exchange Notes as to which clause 2(c)(iv) hereof applies)
pursuant to Section 3 of this Agreement.
(b) The Company shall include within the Prospectus
contained in the Exchange Offer Registration Statement a section
entitled "Plan of Distribution," reasonably acceptable to the
Initial Purchasers, which shall contain a summary statement of
the positions taken or policies made by the staff of the SEC with
respect to the potential "underwriter" status of any broker-
dealer that is the beneficial owner (as defined in Rule 13d-3
under the Exchange Act) of Exchange Notes received by such
broker-dealer in the Exchange Offer (a "Participating Broker-
Dealer"), whether such positions or policies have been publicly
disseminated by the staff of the SEC or such positions or
policies, in the judgment of the Initial Purchasers, represent
the prevailing views of the staff of the SEC. Such "Plan of
Distribution" section shall also allow, to the extent permitted
by applicable policies and regulations of the SEC, the use of
the Prospectus by all Persons subject to the prospectus
delivery requirements of the Securities Act, including, to the
extent so permitted, all Participating Broker-Dealers, and
include a statement describing the manner in which
Participating Broker-Dealers may resell the Exchange Notes.
The Company shall use its best efforts to keep the
Exchange Offer Registration Statement effective and to amend
and supplement the Prospectus contained therein, in order to
permit such Prospectus to be lawfully delivered by all Persons
subject to the prospectus delivery requirements of the
Securities Act for such period of time as such Persons must
comply with such requirements in connection with offers and
sales of the Exchange Notes; provided that such period shall
not exceed 180 calendar days (or such longer period if extended
pursuant to Section 5 hereof) (the "Applicable Period").
If, upon consummation of the Exchange Offer, any
Initial Purchaser holds any Notes acquired by it and having the
status of an unsold allotment in the initial distribution, the
Company upon the request of any such Initial Purchaser shall,
simultaneously with the delivery of the Exchange Notes in the
Exchange Offer, issue and deliver to such Initial Purchaser, in
exchange (the "Private Exchange") for the Notes held by such
Initial Purchaser, a like principal amount of debt securities
of the Company (the "Private Exchange Notes") that are
identical in all material respects to the Exchange Notes except
for the existence of restrictions on transfer of the Private
Exchange Notes under the Securities Act and securities laws of
the several states of the United States (and which are issued
pursuant to the same indenture as the Exchange Notes). The
Private Exchange Notes shall bear the same CUSIP number as the
Exchange Notes. Interest on the Exchange Notes and Private
Exchange Notes will accrue from the last interest payment date
on which interest was paid on the Notes surrendered in exchange
therefor or, if no interest has been paid on the Notes, from
the Issue Date.
In connection with the Exchange Offer, the Company
shall:
(1) mail to each Holder a copy of the Prospectus forming part
of the Exchange Offer Registration Statement, together with an
appropriate letter of transmittal and related documents;
(2) utilize the services of a depositary for the Exchange
Offer with an address in the Borough of Manhattan, The City of
New York, which may be the Trustee or an affiliate thereof;
(3) permit Holders to withdraw tendered Registrable Notes at
any time prior to the close of business, New York time, on the
last Business Day on which the Exchange Offer shall remain
open; and
(4) otherwise comply in all material respects with all
applicable laws.
As soon as practicable after the close of the
Exchange Offer or the Private Exchange, as the case may be, the
Company shall:
(1) accept for exchange all Registrable Notes
validly tendered and not validly withdrawn pursuant to the
Exchange Offer or the Private Exchange;
(2) deliver to the Trustee for cancellation all
Registrable Notes so accepted for exchange; and
(3) cause the Trustee to authenticate and deliver
promptly to each Holder tendering such Registrable Notes,
Exchange Notes or Private Exchange Notes, as the case may
be, equal in principal amount to the Notes of such Holder
so accepted for exchange.
The Exchange Notes and the Private Exchange Notes may
be issued under (i) the Indenture or (ii) an indenture
identical in all material respects to the Indenture, which in
either event will provide that the Exchange Notes will not be
subject to the transfer restrictions set forth in the Indenture
and that the Exchange Notes, the Private Exchange Notes and the
Notes, if any, will vote and consent together on all matters as
one class and that none of the Exchange Notes, the Private
Exchange Notes or the Notes, if any, will have the right to
vote or consent as a separate class on any matter.
(c) If, (i) because of any change in law or in currently
prevailing interpretations of the staff of the SEC, the Company
is not permitted to effect an Exchange Offer, (ii) the Exchange
Offer is not consummated within 30 Business Days following the
150th calendar day after the Issue Date, (iii) any holder of
Private Exchange Notes so requests in writing to the Company or
(iv) any Holder of Notes notifies the Company on or by the
20th Business Day following consummation of the Exchange Offer
that (a) it is prohibited by law or SEC policy from
participating in the Exchange Offer, (b) it may not resell the
Exchange Notes acquired by it in the Exchange Offer to the
public without delivering a prospectus and the Prospectus
contained in the Exchange Offer Registration Statement is not
appropriate or available for such resales, (c) it is a broker-
dealer and owns Notes acquired directly from the Company or an
affiliate of the Company or (d) it does not otherwise receive
freely tradeable Exchange Notes in the Exchange Offer, then the
Company shall promptly deliver to the Holders and the Trustee
written notice thereof (the "Shelf Notice") and shall file a
Shelf Registration pursuant to Section 3.
3. Shelf Registration
------------------
If a Shelf Notice is delivered as contemplated by
Section 2(c), then:
(a) Shelf Registration. The Company shall as promptly as
practicable file with the SEC a Registration Statement for an
offering to be made on a continuous basis pursuant to Rule 415
covering all of the Registrable Notes (the "Shelf Registration
Statement"). If the Company shall not have yet filed the
Exchange Offer Registration Statement, the Company shall use
its best efforts to file with the SEC the Shelf Registration
Statement on or prior to the Filing Date and shall use its best
efforts to cause such Shelf Registration Statement to be
declared effective under the Securities Act on or prior to the
Effectiveness Date. Otherwise, the Company shall use its best
efforts to file with the SEC the Shelf Registration Statement
within 30 days of the delivery of the Shelf Notice and shall
use its best efforts to cause such Shelf Registration Statement
to be declared effective under the Securities Act as promptly
as practicable thereafter. The Shelf Registration Statement
shall be on Form S-1 or another appropriate form permitting
registration of such Registrable Notes for resale by Holders in
the manner or manners designated by them (including, without
limitation, one or more underwritten offerings). The Company
shall not permit any securities other than the Registrable
Notes to be included in any Shelf Registration Statement. The
Company shall use its best efforts to keep the Shelf
Registration Statement continuously effective under the
Securities Act until two years after the Issue Date (or, if
Rule 144(k) is amended to permit unlimited resales by non-
affiliates within a lesser period, such lesser period) (subject
to extension pursuant to the last paragraph of Section 5
hereof) (the "Effectiveness Period") or such shorter period
ending when (i) all Registrable Notes covered by the Shelf
Registration Statement have been sold in the manner set forth
and as contemplated in the Shelf Registration Statement or
(ii) a Subsequent Shelf Registration covering all of the
Registrable Notes has been declared effective under the
Securities Act.
(b) Subsequent Shelf Registrations. If the Shelf Registration
Statement or any Subsequent Shelf Registration ceases to be
effective for any reason at any time during the Effectiveness
Period (other than because of the sale of all of the Notes
registered thereunder), the Company shall use its best efforts
to obtain the prompt withdrawal of any order suspending the
effectiveness thereof, and in any event shall within 30 days of
such cessation of effectiveness amend the Shelf Registration
Statement in a manner to obtain the withdrawal of the order
suspending the effectiveness thereof, or file an additional
"shelf" Registration Statement pursuant to Rule 415 covering
all of the Registrable Notes (a "Subsequent Shelf
Registration"). If a Subsequent Shelf Registration is filed,
the Company shall use its best efforts to cause the Subsequent
Shelf Registration to be declared effective as soon as
practicable after such filing and to keep such Subsequent Shelf
Registration continuously effective for a period equal to the
number of days in the Effectiveness Period less the aggregate
number of days during which the Shelf Registration Statement or
any Subsequent Shelf Registrations was previously continuously
effective. As used herein the term "Shelf Registration" means
the Shelf Registration Statement and any Subsequent Shelf
Registrations.
(c) Supplements and Amendments. The Company shall promptly
supplement and amend any Shelf Registration if required by the
rules, regulations or instructions applicable to the
registration form used for such Shelf Registration, if required
by the Securities Act, or if reasonably requested by the
Holders of a majority in aggregate principal amount of the
Registrable Notes covered by such Shelf Registration or by any
underwriter of such Registrable Notes, in each case, with the
Company's consent, which consent shall not be unreasonably
withheld or delayed.
4. Additional Amounts
------------------
(a) The Company and the Initial Purchasers agree that the
Holders of Registrable Notes will suffer damages if the Company
fails to fulfill its obligations under Section 2 or Section 3
hereof and that it would not be feasible to ascertain the
extent of such damages with precision. Accordingly, the
Company agrees to pay, as liquidated damages, additional
amounts in respect of Transfer Restricted Notes ("Additional
Amounts") under the circumstances and to the extent set forth
below (each of which shall be given independent effect):
(i) if (A) neither the Exchange Offer Registration
Statement nor a Shelf Registration Statement is filed with the
SEC on or prior to the Filing Date, or (B) notwithstanding that
the Company has consummated or will consummate an Exchange
Offer, the Company is required to file a Shelf Registration
Statement and such Shelf Registration Statement is not filed on
or prior to the date required by this Agreement, then
commencing on the day after the Filing Date in the case of
clause (A) or commencing on the date such Shelf Registration
Statement is required to be filed, in the case of clause (B),
Additional Amounts shall be payable in respect of the Transfer
Restricted Notes over and above any stated interest at a rate
of 0.25% per annum for the first 90 days immediately following
the Filing Date or such other date, as the case may be, such
Additional Amounts payable increasing by an additional 0.25%
per annum at the beginning of each subsequent 90-day period;
(ii) if (A) neither the Exchange Offer Registration
Statement nor a Shelf Registration Statement is declared
effective on or prior to the Effectiveness Date, or
(B) notwithstanding that the Company has consummated or will
consummate an Exchange Offer, the Company is required to file a
Shelf Registration Statement and such Shelf Registration
Statement is not declared effective by the SEC on or prior to
the 90th day following the date such Shelf Registration
Statement was filed, then commencing on the day after such
Effectiveness Date in the case of clause (A) or such 90th day
in the case of clause (B), Additional Amounts shall be payable
in respect of the Transfer Restricted Notes over and above any
stated interest at a rate of 0.25% per annum for the first 90
days immediately following the day after the Effectiveness Date
in the case of clause (A), or such 90th day in case of
clause (B), such Additional Amounts payable increasing by an
additional 0.25% per annum at the beginning of each subsequent
90-day period; and
(iii) if (A) the Exchange Offer is not consummated
within 30 Business Days of the date when the Exchange Offer
Registration Statement was declared effective, (B) the
Commission shall have issued a stop order suspending the
effectiveness of the Exchange Offer Registration Statement or
any Shelf Registration Statement with respect to the Notes at a
time when such Exchange Offer Registration Statement or Shelf
Registration Statement, as the case may be, is required to be
kept effective by the Company, or (C) or at any such time the
Prospectus contained in any such Exchange Offer Registration
Statement or Shelf Registration Statement, as amended or
supplemented, shall (1) not contain current information
required by the Securities Act and the rules and regulations
promulgated thereunder or (2) contain any untrue statement of a
material fact or omit to state any material fact required to be
stated therein or necessary to make the statements therein, in
light of the circumstances under which they were made, not
misleading, then Additional Amounts shall be payable in respect
of the Transfer Restricted Notes over and above any stated
interest at a rate 0.25% per annum for the first 90 days
commencing on (x) the 30th day after such effective date in the
case of (A) above or (y) the date of the order suspending
effectiveness in the case of clause (B) above or (z) the
existence of any of the circumstances described in clause (C)
above, such Additional Amounts payable increasing by an
additional 0.25% per annum at the beginning of each such
subsequent 90-day period;
provided, however, that the Additional Amounts on the Transfer
Restricted Notes may not exceed in the aggregate 1.0% per
annum; provided further that (1) upon the filing of the
Exchange Offer Registration Statement or a Shelf Registration
Statement (in the case of (i) above), (2) upon the
effectiveness of the Exchange Offer Registration Statement or a
Shelf Registration Statement, as the case may be (in the case
of (ii) above), or (3)(i) upon the consummation of the Exchange
Offer with respect to the Notes (in the case of (iii)(A)
above), (ii) the Exchange Offer Registration Statement or Shelf
Registration Act with respect to the Notes, as the case may be,
not being subject to an order suspending the effectiveness
thereof (in the case of (iii)(B) above) or (iii) upon the
Prospectus contained in any such Exchange Offer Registration
Statement or Shelf Registration containing the current
information required by the Securities Act and the rules and
regulations promulgated thereunder and the Exchange Offer
Registration Statement or Shelf Registration Statement not
containing an untrue statement of a material fact or omitting
to state a material fact, as the case may be (in the case of
(iii)(C) above), Additional Amounts on any Registrable Notes
then accruing Additional Amounts as a result of such clause (or
the relevant subclause thereof), as the case may be, shall
cease to accrue.
(b) The Company shall notify the Trustee within five
Business Days after each and every date on which an event occurs
in respect of which Additional Amounts are required to be paid
(an "Event Date"). Any Additional Amounts due pursuant to (a)(i),
(a)(ii) or (a)(iii) of this Section 4 will be payable in cash
semi-annually on each regular interest payment date specified
in the Indenture (to the Holders of Transfer Restricted Notes
of record on the regular record date therefor (as specified in
the Indenture) immediately preceding such dates), commencing
with the first such regular interest payment date occurring
after any such Additional Amounts commence to accrue. The
amount of any Additional Amounts will be determined by
multiplying the applicable Additional Amounts rate by the
principal amount of the Notes subject thereto, multiplied by a
fraction, the numerator of which is the number of days such
Additional Amounts rate was applicable during such period
(determined on the basis of a 360-day year comprised of twelve
30-day months), and the denominator of which is 360.
5. Registration Procedures
-----------------------
In connection with the filing of any Registration
Statement pursuant to Sections 2 or 3 hereof, the Company shall
effect such registrations to permit the sale of such securities
covered thereby in accordance with the intended method or
methods of disposition thereof, and pursuant thereto and in
connection with any Registration Statement filed by the Company
hereunder, the Company shall:
(a) Prepare and file with the SEC prior to the Filing Date,
the Exchange Offer Registration Statement or if the Exchange
Offer Registration Statement is not filed or is unavailable, a
Shelf Registration as prescribed by Section 2 or 3, and use its
best efforts to cause each such Registration Statement to
become effective and remain effective as provided herein;
provided that, if (i) a Shelf Registration is filed pursuant to
Section 3, or (ii) a Prospectus contained in an Exchange Offer
Registration Statement filed pursuant to Section 2 is required
to be delivered under the Securities Act by any Participating
Broker-Dealer who seeks to sell Exchange Notes during the
Applicable Period and has advised the Company that it is a
Participating Broker-Dealer, before filing any Registration
Statement or Prospectus or any amendments or supplements
thereto, the Company shall, if requested, furnish to and afford
the Holders of the Registrable Notes to be registered pursuant
to such Shelf Registration or each such Participating
Broker-Dealer, as the case may be, covered by such Registration
Statement, their counsel and the managing underwriters, if any,
a reasonable opportunity to review copies of all such documents
(including copies of any documents to be incorporated by
reference therein and all exhibits thereto) proposed to be
filed (in each case at least five Business Days prior to such
filing). The Company shall not file any such Registration
Statement or Prospectus or any amendments or supplements
thereto if the Holders of a majority in aggregate principal
amount of the Registrable Notes covered by such Registration
Statement, or any such Participating Broker-Dealer, as the case
may be, their counsel, or the managing underwriters, if any,
shall reasonably object.
(b) Prepare and file with the SEC such amendments and
post-effective amendments to each Shelf Registration or
Exchange Offer Registration Statement, as the case may be, as
may be necessary to keep such Registration Statement
continuously effective for the Effectiveness Period or the
Applicable Period, as the case may be; cause the related
Prospectus to be supplemented by any Prospectus supplement
required by applicable law, and as so supplemented to be filed
pursuant to Rule 424 (or any similar provisions then in force)
under the Securities Act; and comply with the provisions of the
Securities Act and the Exchange Act applicable to it with
respect to the disposition of all securities covered by such
Registration Statement as so amended or in such Prospectus as
so supplemented and with respect to the subsequent resale of
any securities being sold by a Participating Broker-Dealer
covered by any such Prospectus. The Company shall be deemed
not to have used its best efforts to keep a Registration
Statement effective during the Applicable Period if it
voluntarily takes any action that would result in selling
Holders of the Registrable Notes covered thereby or
Participating Broker-Dealers seeking to sell Exchange Notes not
being able to sell such Registrable Notes or such Exchange
Notes during that period unless such action is required by
applicable law, rule or regulation or unless the Company
complies with this Agreement, including, without limitation,
the provisions of paragraph 5(k) hereof and the last paragraph
of Section 5.
(c) If (1) a Shelf Registration is filed pursuant to
Section 3, or (2) a Prospectus contained in an Exchange Offer
Registration Statement filed pursuant to Section 2 is required
to be delivered under the Securities Act by any Participating
Broker-Dealer who seeks to sell Exchange Notes during the
Applicable Period from whom the Company has received written
notice that it will be a Participating Broker-Dealer, notify
the selling Holders of Registrable Notes, and each such
Participating Broker-Dealer, their counsel and the managing
underwriters, if any, promptly (but in any event within two
Business Days), and confirm such notice in writing, (i) when a
Prospectus or any Prospectus supplement or post-effective
amendment has been filed, and, with respect to a Registration
Statement or any post-effective amendment, when the same has
become effective (including in such notice a written statement
that any Holder may, upon request, obtain, without charge, one
conformed copy of such Registration Statement or post-effective
amendment including financial statements and schedules,
documents incorporated or deemed to be incorporated by
reference and exhibits), (ii) of the issuance by the SEC of any
stop order suspending the effectiveness of a Registration
Statement or of any order preventing or suspending the use of
any preliminary prospectus or the initiation of any proceedings
for that purpose, (iii) if at any time when a prospectus is
required by the Securities Act to be delivered in connection
with sales of the Registrable Notes the representations and
warranties of the Company contained in any agreement (including
any underwriting agreement) contemplated by Section 5(n)
hereof cease to be true and correct in any material respect,
(iv) of the receipt by the Company of any notification with
respect to the suspension of the qualification or exemption
from qualification of a Registration Statement or any of the
Registrable Notes or the Exchange Notes to be sold by any
Participating Broker-Dealer for offer or sale in any
jurisdiction, or the initiation or threatening of any
proceeding for such purpose, (v) of the happening of any event,
the existence of any condition or any information becoming
known that makes any statement made in such Registration
Statement or related Prospectus or any document incorporated or
deemed to be incorporated therein by reference untrue in any
material respect or that requires the making of any changes in,
or amendments or supplements to, such Registration Statement,
Prospectus or documents so that, in the case of the
Registration Statement, it will not contain any untrue
statement of a material fact or omit to state any material fact
required to be stated therein or necessary to make the
statements therein not misleading, and that in the case of the
Prospectus, it will not contain any untrue statement of a
material fact or omit to state any material fact required to be
stated therein or necessary to make the statements therein, in
light of the circumstances under which they were made, not
misleading, and (vi) of the Company's reasonable determination
that a post-effective amendment to a Registration Statement
would be appropriate.
(d) If (i) a Shelf Registration is filed pursuant to
Section 3, or (ii) a Prospectus contained in an Exchange Offer
Registration Statement filed pursuant to Section 2 is required
to be delivered under the Securities Act by any Participating
Broker-Dealer who seeks to sell Exchange Notes during the
Applicable Period, use its best efforts to prevent the issuance
of any order suspending the effectiveness of a Registration
Statement or of any order preventing or suspending the use of a
Prospectus or suspending the qualification (or exemption from
qualification) of any of the Registrable Notes or the Exchange
Notes to be sold by any Participating Broker-Dealer, for sale
in any jurisdiction, and, if any such order is issued, to use
its best efforts to obtain the withdrawal of any such order at
the earliest possible date.
(e) If a Shelf Registration is filed pursuant to Section 3 and
if requested by the managing underwriters, if any, or the
Holders of a majority in aggregate principal amount of the
Registrable Notes being sold in connection with an underwritten
offering, (i) as promptly as practicable incorporate in a
prospectus supplement or post-effective amendment such
information or revisions to information therein relating to
such underwriters or selling Holders as the managing
underwriters, if any, or such Holders or their counsel
reasonably request to be included or made therein, (ii) make
all required filings of such prospectus supplement or such
post-effective amendment as soon as practicable after the
Company has received notification of the matters to be
incorporated in such prospectus supplement or post-effective
amendment, and (iii) supplement or make amendments to such
Registration Statement.
(f) If (i) a Shelf Registration is filed pursuant to
Section 3, or (ii) a Prospectus contained in an Exchange Offer
Registration Statement filed pursuant to Section 2 is required
to be delivered under the Securities Act by any Participating
Broker-Dealer who seeks to sell Exchange Notes during the
Applicable Period, furnish to each selling Holder of
Registrable Notes and to each such Participating Broker-Dealer
who so requests and to counsel and each managing underwriter,
if any, without charge, one conformed copy of the Registration
Statement or Registration Statements and each post-effective
amendment thereto, including financial statements and
schedules, and, if requested, all documents incorporated or
deemed to be incorporated therein by reference and all
exhibits.
(g) If (i) a Shelf Registration is filed pursuant to
Section 3, or (ii) a Prospectus contained in an Exchange Offer
Registration Statement filed pursuant to Section 2 is required
to be delivered under the Securities Act by any Participating
Broker-Dealer, deliver to each selling Holder of Registrable
Notes or each such Participating Broker-Dealer, as the case may
be, their respective counsel, and the underwriters, if any,
without charge, as many copies of the Prospectus or
Prospectuses (including each form of preliminary prospectus)
and each amendment or supplement thereto and any documents
incorporated by reference therein as such Persons may
reasonably request; and, subject to the last paragraph of this
Section 5, the Company hereby consents to the use of such
Prospectus and each amendment or supplement thereto by each of
the selling Holders of Registrable Notes and each Participating
Broker-Dealer, and the underwriters or agents, if any, and
dealers (if any), in connection with the offering and sale of
the Registrable Notes covered by, or the sale by Participating
Broker-Dealers of the Exchange Notes pursuant to, such
Prospectus and any amendment or supplement thereto.
(h) Prior to any public offering of Registrable Notes or any
delivery of a Prospectus contained in the Exchange Offer
Registration Statement by any Participating Broker-Dealer who
seeks to sell Exchange Notes during the Applicable Period, use
its best efforts to register or qualify, and cooperate with the
selling Holders of Registrable Notes and each such
Participating Broker-Dealer, the underwriters, if any, and
their respective counsel in connection with the registration or
qualification (or exemption from such registration or
qualification) of such Registrable Notes or Exchange Notes, as
the case may be, for offer and sale under the securities or
Blue Sky laws of such jurisdictions within the United States as
any selling Holder, Participating Broker-Dealer, or the
managing underwriter or underwriters, if any, reasonably
request in writing; provided that where Exchange Notes held by
Participating Broker-Dealers or Registrable Notes are offered
pursuant to an underwritten offering, counsel to the
underwriters shall, at the cost and expense of the Company,
perform the Blue Sky investigations and file registrations and
qualifications required to be filed pursuant to this Section
5(h); keep each such registration or qualification (or
exemption therefrom) effective during the period such
Registration Statement is required to be kept effective and do
any and all other acts or things reasonably necessary or
advisable to enable the disposition in such jurisdictions of
the Exchange Notes by Participating Broker-Dealers or the
Registrable Notes covered by the applicable Registration
Statement; provided that the Company shall not be required to
(A) qualify generally to do business in any jurisdiction where
it is not then so qualified, (B) take any action that would
subject it to general service of process in any such
jurisdiction where it is not then so subject or (C) subject
itself to taxation in excess of a nominal dollar amount in any
such jurisdiction where it is not then so subject.
(i) If a Shelf Registration is filed pursuant to Section 3,
cooperate with the selling Holders of Registrable Notes, any
Participating Broker-Dealer and the managing underwriter or
underwriters, if any, to facilitate the timely preparation and
delivery of certificates representing Registrable Notes to be
sold, which certificates shall not bear any restrictive legends
and shall be in a form eligible for deposit with The Depository
Trust Company; and enable such Registrable Notes to be in such
denominations and registered in such names as the managing
underwriter or underwriters, if any, or Holders may reasonably
request.
(j) Use its best efforts to cause the Registrable Notes
covered by the Registration Statement to be registered with or
approved by such governmental agencies or authorities as may be
necessary to enable the seller or sellers thereof or the
underwriters, if any, to consummate the disposition of such
Registrable Notes, in which case the Company will cooperate in
all reasonable respects with the filing of such Registration
Statement and the granting of such approvals.
(k) If (i) a Shelf Registration is filed pursuant to
Section 3, or (ii) a Prospectus contained in an Exchange Offer
Registration Statement filed pursuant to Section 2 is required
to be delivered under the Securities Act by any Participating
Broker-Dealer who seeks to sell Exchange Notes during the
Applicable Period, upon the occurrence of any event
contemplated by paragraph 5(c)(v) or 5(c)(vi) hereof, as
promptly as practicable prepare and (subject to Section 5(a)
hereof) file with the SEC, at the Company's sole expense, a
supplement or post-effective amendment to the Registration
Statement or a supplement to the related Prospectus or any
document incorporated or deemed to be incorporated therein by
reference, or file any other required document so that, as
thereafter delivered to the purchasers of the Registrable Notes
being sold thereunder or to the purchasers of the Exchange
Notes to whom such Prospectus will be delivered by a
Participating Broker-Dealer, any such Prospectus will not
contain an untrue statement of a material fact or omit to state
a material fact required to be stated therein or necessary to
make the statements therein, in light of the circumstances
under which they were made, not misleading.
(l) Use its best efforts to cause the Registrable Notes
covered by a Registration Statement to be rated with the
appropriate rating agencies, if so requested by the Holders of
a majority in aggregate principal amount of Registrable Notes
covered by such Registration Statement or the managing
underwriter or underwriters, if any.
(m) Prior to the effective date of the first Registration
Statement relating to the Registrable Notes, (i) provide the
Trustee with printed certificates for the Registrable Notes in
a form eligible for deposit with The Depository Trust Company
and (ii) provide a CUSIP number for the Registrable Notes.
(n) In connection with an underwritten offering of Registrable
Notes pursuant to a Shelf Registration, enter into an
underwriting agreement as is customary in underwritten
offerings of debt securities similar to the Notes and take all
such other actions as are reasonably requested by the managing
underwriter or underwriters in order to expedite or facilitate
the registration or the disposition of such Registrable Notes
and, in such connection, (i) make such representations and
warranties to the underwriters, with respect to the business of
the Company and its subsidiaries and the Registration
Statement, Prospectus and documents, if any, incorporated or
deemed to be incorporated by reference therein, in each case,
as are customarily made by issuers to underwriters in
underwritten offerings of debt securities similar to the Notes,
and confirm the same in writing if and when requested;
(ii) obtain the opinion of counsel to the Company and updates
thereof in form and substance reasonably satisfactory to the
managing underwriter or underwriters, addressed to the
underwriters covering the matters customarily covered in
opinions requested in underwritten offerings of debt securities
similar to the Notes and such other matters as may be
reasonably requested by underwriters; (iii) obtain "cold
comfort" letters and updates thereof from the independent
certified public accountants of the Company (and, if necessary,
any other independent certified public accountants of any
subsidiary of the Company or of any business acquired by the
Company for which financial statements and financial data are,
or are required to be, included in the Registration Statement),
in form and substance reasonably satisfactory to the managing
underwriter or underwriters, addressed to each of the
underwriters, covering matters of the type customarily covered
in "cold comfort" letters in connection with underwritten
offerings of debt securities similar to the Notes and such
other matters as reasonably requested by the managing
underwriter or underwriters; and (iv) if an underwriting
agreement is entered into, the same shall contain
indemnification provisions and procedures no less favorable
than those set forth in Section 7 hereof (or such other
provisions and procedures acceptable to Holders of a majority
in aggregate principal amount of Registrable Notes covered by
such Registration Statement and the managing underwriter or
underwriters or agents) with respect to all parties to be
indemnified pursuant to said Section. The above shall be done
at each closing under such underwriting agreement, or as and to
the extent required thereunder.
(o) If (1) a Shelf Registration is filed pursuant to
Section 3, or (2) a Prospectus contained in an Exchange Offer
Registration Statement filed pursuant to Section 2 is required
to be delivered under the Securities Act by any Participating
Broker- Dealer who seeks to sell Exchange Notes during the
Applicable Period, make available for inspection by any selling
Holder of such Registrable Notes being sold, and each
Participating Broker-Dealer, any underwriter participating in
any such disposition of Registrable Notes, if any, and any
attorney, accountant or other agent retained by any such
selling Holder, each Participating Broker-Dealer, as the case
may be, or underwriter (collectively, the "Inspectors"), at the
offices where normally kept, during reasonable business hours,
all financial and other records, pertinent corporate documents
and properties of the Company and its subsidiaries
(collectively, the "Records") as shall be reasonably necessary
to enable them to exercise any applicable due diligence
responsibilities, and cause the officers, directors and
employees of the Company and its subsidiaries to supply all
information reasonably requested by any such Inspector in
connection with such Registration Statement. Records which the
Company determines, in good faith, to be confidential and any
Records which it notifies the Inspectors are confidential shall
not be disclosed by the Inspectors unless (i) the disclosure of
such Records is necessary to avoid or correct a misstatement or
omission in such Registration Statement, (ii) the release of
such Records is ordered pursuant to a subpoena or other order
from a court of competent jurisdiction, (iii) the information
in such Records has been made generally available to the public
other than as a result of a disclosure or failure to safeguard
by such Inspector or (iv) disclosure of such information is, in
the opinion of counsel for any Inspector, necessary or
advisable in connection with any action, claim, suit or
proceeding, directly or indirectly, involving or potentially
involving such Inspector and arising out of, based upon,
related to, or involving this Agreement, or any transactions
contemplated hereby or arising hereunder. Each selling Holder
of such Registrable Notes and each Participating Broker-Dealer
will be required to agree that information obtained by it as a
result of such inspections shall be deemed confidential and
shall not be used by it as the basis for any market
transactions in the securities of the Company unless and until
such is made generally available to the public. Each
Inspector, each selling Holder of such Registrable Notes and
each Participating Broker-Dealer will be required to further
agree that it will, upon learning that disclosure of such
Records is sought in a court of competent jurisdiction pursuant
to clauses (ii) or (iv) of the previous sentence or otherwise,
give notice to the Company and allow the Company to undertake
appropriate action to obtain a protective order or otherwise
prevent disclosure of the Records deemed confidential at its
expense.
(p) Provide an indenture trustee for the Registrable Notes or
the Exchange Notes, as the case may be, and cause the Indenture
or the trust indenture provided for in Section 2(a), as the
case may be, to be qualified under the TIA not later than the
effective date of the Exchange Offer Registration Statement or
the first Registration Statement relating to the Registrable
Notes; and in connection therewith, cooperate with the trustee
under any such indenture and the Holders of the Registrable
Notes, to effect such changes to such indenture as may be
required for such indenture to be so qualified in accordance
with the terms of the TIA; and execute, and use its best
efforts to cause such trustee to execute, all documents as may
be required to effect such changes, and all other forms and
documents required to be filed with the SEC to enable such
indenture to be so qualified in a timely manner.
(q) Comply with all applicable rules and regulations of the
SEC and make generally available to its securityholders
earnings statements satisfying the provisions of Section 11(a)
of the Securities Act and Rule 158 thereunder (or any similar
rule promulgated under the Securities Act) no later than 45
days after the end of any 12-month period (or 90 days after the
end of any 12-month period if such period is a fiscal year)
(i) commencing at the end of any fiscal quarter in which
Registrable Notes are sold to underwriters in a firm commitment
or best efforts underwritten offering and (ii) if not sold to
underwriters in such an offering, commencing on the first day
of the first fiscal quarter of the Company after the effective
date of a Registration Statement, which statements shall cover
said 12-month periods.
(r) Upon consummation of the Exchange Offer or a Private
Exchange, obtain an opinion of counsel to the Company, in a
form customary for underwritten transactions, addressed to the
Trustee for the benefit of all Holders of Registrable Notes
participating in the Exchange Offer or the Private Exchange, as
the case may be, that the Exchange Notes or the Private
Exchange Notes, as the case may be, and the related indenture
constitute legally valid and binding obligations of the
Company, enforceable against the Company in accordance with
their respective terms.
(s) If the Exchange Offer or a Private Exchange is to be
consummated, upon delivery of the Registrable Notes by Holders
to the Company (or to such other Person as directed by the
Company) in exchange for the Exchange Notes or the Private
Exchange Notes, as the case may be, the Company shall mark, or
caused to be marked, on such Registrable Notes that such
Registrable Notes are being cancelled in exchange for the
Exchange Notes or the Private Exchange Notes, as the case may
be; in no event shall such Registrable Notes be marked as paid
or otherwise satisfied.
(t) Cooperate with each seller of Registrable Notes covered by
any Registration Statement and each underwriter, if any,
participating in the disposition of such Registrable Notes and
their respective counsel in connection with any filings
required to be made with the NASD.
(u) Use its reasonable best efforts to take all other steps
reasonably necessary to effect the registration of the
Registrable Notes covered by a Registration Statement
contemplated hereby.
The Company may require each seller of Registrable
Notes as to which any registration is being effected to furnish
to the Company such information regarding such seller and the
distribution of such Registrable Notes as the Company may, from
time to time, reasonably request. The Company may exclude from
such registration the Registrable Notes of any seller who fails
to furnish such information within a reasonable time after
receiving such request. Each seller as to which any Shelf
Registration Statement is being effected agrees to furnish
promptly to the Company all information required to be
disclosed in order to make the information previously furnished
to the Company by such seller not materially misleading.
Each Holder of Registrable Notes and each
Participating Broker-Dealer agrees by acquisition of such
Registrable Notes or Exchange Notes to be sold by such
Participating Broker-Dealer, as the case may be, that, upon
receipt of any notice from the Company of the happening of any
event of the kind described in Section 5(c)(ii), 5(c)(iv),
5(c)(v), or 5(c)(vi), such Holder will forthwith discontinue
disposition of such Registrable Notes covered by such
Registration Statement or Prospectus or Exchange Notes to be
sold by such Holder or Participating Broker-Dealer, as the case
may be, and, in each case, dissemination of such Prospectus
until such Holder's or Participating Broker-Dealer's receipt of
the copies of the supplemented or amended Prospectus
contemplated by Section 5(k), or until it is advised in writing
(the "Advice") by the Company that the use of the applicable
Prospectus may be resumed, and has received copies of any
amendments or supplements thereto. In the event the Company
shall give any such notice, each of the Effectiveness Period
and the Applicable Period shall be extended by the number of
days during such periods from and including the date of the
giving of such notice to and including the date when each
seller of Registrable Notes covered by such Registration
Statement or Exchange Notes to be sold by such Participating
Broker-Dealer, as the case may be, shall have received (x) the
copies of the supplemented or amended Prospectus contemplated
by Section 5(k) or (y) the Advice.
6. Registration Expenses
---------------------
All fees and expenses incident to the performance of
or compliance with this Agreement by the Company shall be borne
by the Company whether or not the Exchange Offer or a Shelf
Registration is filed or becomes effective, including, without
limitation, (i) all registration and filing fees (including,
without limitation, (A) fees with respect to filings required
to be made with the NASD in connection with an underwritten
offering and (B) fees and expenses of compliance with state
securities or Blue Sky laws (including, without limitation,
reasonable fees and disbursements of counsel in connection with
Blue Sky qualifications of the Registrable Notes or Exchange
Notes and determination of the eligibility of the Registrable
Notes or Exchange Notes for investment under the laws of such
jurisdictions (x) where the holders of Registrable Notes are
located, in the case of the Exchange Notes, or (y) as provided
in Section 5(h) hereof, in the case of Registrable Notes or
Exchange Notes to be sold by a Participating Broker-Dealer
during the Applicable Period)), (ii) printing expenses,
including, without limitation, expenses of printing
certificates for Registrable Notes or Exchange Notes in a form
eligible for deposit with The Depository Trust Company and of
printing prospectuses if the printing of prospectuses is
requested by the managing underwriter or underwriters, if any,
or by the Holders of a majority in aggregate principal amount
of the Registrable Notes included in any Registration Statement
or by any Participating Broker-Dealer, as the case may be,
(iii) messenger, telephone and delivery expenses incurred in
connection with the Exchange Offer Registration Statement and
any Shelf Registration, (iv) fees and disbursements of counsel
for the Company and fees and disbursements of special counsel
for the Initial Purchasers and the sellers of Registrable
Notes, (v) fees and disbursements of all independent certified
public accountants referred to in Section 5(n)(iii) (including,
without limitation, the expenses of any special audit and "cold
comfort" letters required by or incident to such performance),
(vi) rating agency fees, (vii) Securities Act liability
insurance, if the Company desires such insurance, (viii) fees
and expenses of all other Persons retained by the Company,
(ix) internal expenses of the Company (including, without
limitation, all salaries and expenses of officers and employees
of the Company performing legal or accounting duties), (x) the
expense of any annual or special audit, (xi) the fees and
expenses incurred in connection with the listing of the
securities to be registered on any securities exchange,
(xii) the fees and disbursements of underwriters, if any,
customarily paid by issuers or sellers of securities (but not
including any underwriting discounts or commissions or transfer
taxes, if any, attributable to the sale of the Registrable
Notes which discounts, commissions or taxes shall be paid by
Holders of such Registrable Notes) and (xiii) the expenses
relating to printing, word processing and distributing all
Registration Statements, underwriting agreements, securities
sales agreements, indentures and any other documents necessary
in order to comply with this Agreement.
7. Indemnification
---------------
(a) The Company agrees to indemnify and hold harmless
each Holder of Registrable Notes and each Participating
Broker-Dealer, the officers and directors of each such Person,
and each Person, if any, who controls any such Person within
the meaning of either Section 15 of the Securities Act or
Section 20 of the Exchange Act (each, a "Participant"), from
and against any and all losses, claims, damages and liabilities
(including, without limitation, the reasonable legal fees and
other reasonable expenses actually incurred in connection with
any suit, action or proceeding or any claim asserted) caused
by, arising out of or based upon any untrue statement or
alleged untrue statement of a material fact contained in any
Registration Statement or Prospectus (as amended or
supplemented if the Company shall have furnished any amendments
or supplements thereto) or caused by, arising out of or based
upon any omission or alleged omission to state therein a
material fact required to be stated therein or necessary to
make the statements therein, in light of the circumstances
under which they were made, not misleading, except insofar as
such losses, claims, damages or liabilities are caused by any
untrue statement or omission or alleged untrue statement or
omission made in reliance upon and in conformity with
information relating to any Participant furnished to the
Company in writing by or on behalf of such Participant
expressly for use therein; provided, however, that the Company
shall not be liable if such untrue statement or omission or
alleged untrue statement or omission was contained or made in
any preliminary prospectus and corrected in the Prospectus or
any amendment or supplement thereto and the Prospectus does not
contain any other untrue statement or omission or alleged
untrue statement or omission of a material fact that was the
subject matter of the related proceeding and any such loss,
liability, claim, damage or expense suffered or incurred by the
Participants resulted from any action, claim or suit by any
Person who purchased Registrable Notes or Exchange Notes which
are the subject thereof from such Participant and it is
established in the related proceeding that such Participant
failed to deliver or provide a copy of the Prospectus (as
amended or supplemented) to such Person with or prior to the
confirmation of the sale of such Registrable Notes or Exchange
Notes sold to such Person if required by applicable law, unless
such failure to deliver or provide a copy of the Prospectus (as
amended or supplemented) was a result of noncompliance by the
Company with Section 5 of this Agreement.
(b) Each Participant will be required to agree, severally
and not jointly, to indemnify and hold harmless the Company, its
directors and officers and each Person who controls the Company
within the meaning of Section 15 of the Securities Act or
Section 20 of the Exchange Act to the same extent as the
foregoing indemnity from the Company to each Participant, but
only with reference to information relating to such Participant
furnished to the Company in writing by such Participant
expressly for use in any Registration Statement or Prospectus,
any amendment or supplement thereto, or any preliminary
prospectus. The liability of any Participant under this
paragraph shall in no event exceed the proceeds received by
such Participant from sales of Registrable Notes or Exchange
Notes giving rise to such obligations.
(c) If any suit, action, proceeding (including any
governmental or regulatory investigation), claim or demand
shall be brought or asserted against any Person in respect of
which indemnity may be sought pursuant to either of the two
preceding paragraphs, such Person (the "Indemnified Person")
shall promptly notify the Person against whom such indemnity
may be sought (the "Indemnifying Person") in writing, and the
Indemnifying Person, upon request of the Indemnified Person,
shall retain counsel reasonably satisfactory to the Indemnified
Person to represent the Indemnified Person and any others the
Indemnifying Person may reasonably designate in such proceeding
and shall pay the reasonable fees and expenses actually
incurred by such counsel related to such proceeding; provided,
however, that the failure to so notify the Indemnifying Person
shall not relieve it of any obligation or liability which it
may have hereunder or otherwise. In any such proceeding, any
Indemnified Person shall have the right to retain its own
counsel, but the fees and expenses of such counsel shall be at
the expense of such Indemnified Person unless (i) the
Indemnifying Person and the Indemnified Person shall have
mutually agreed in writing to the contrary, (ii) the
Indemnifying Person has failed within a reasonable time to
retain counsel reasonably satisfactory to the Indemnified
Person or (iii) the named parties in any such proceeding
(including any impleaded parties) include both the Indemnifying
Person and the Indemnified Person and representation of both
parties by the same counsel would be inappropriate due to
actual or potential differing interests between them. It is
understood that, unless there is a conflict among Indemnified
Persons, the Indemnifying Person shall not, in connection with
any proceeding or related proceeding in the same jurisdiction,
be liable for the fees and expenses of more than one separate
counsel (in addition to any local counsel) for all Indemnified
Persons, and that all such fees and expenses shall be
reimbursed as they are incurred. Any such separate counsel for
the Participants and such control Persons of Participants shall
be designated in writing by Participants who sold a majority in
interest of Registrable Notes sold by all such Participants and
any such separate firm for the Company, its directors, officers
and such control Persons of the Company shall be designated in
writing by the Company. The Indemnifying Person shall not be
liable for any settlement of any proceeding effected without
its written consent, but if settled with such consent or if
there is a final non-appealable judgment for the plaintiff, the
Indemnifying Person agrees to indemnify any Indemnified Person
from and against any loss or liability by reason of such
settlement or judgment. Notwithstanding the foregoing
sentence, if at any time an Indemnified Person shall have
requested an Indemnifying Person to reimburse the Indemnified
Person for reasonable fees and expenses actually incurred by
counsel as contemplated by the third sentence of this
paragraph, the Indemnifying Person agrees that it shall be
liable for any settlement of any proceeding effected without
its consent if (i) such settlement is entered into more than 30
days after receipt by such Indemnifying Person of the aforesaid
request and (ii) such Indemnifying Person shall not have
reimbursed the Indemnified Person in accordance with such
request prior to the date of such settlement; provided,
however, that the Indemnifying Person shall not be liable for
any settlement effected without its consent pursuant to this
sentence if the Indemnifying Person is contesting, in good
faith, the request for reimbursement. No Indemnifying Person
shall, without the prior written consent of the Indemnified
Person, effect any settlement of any pending or threatened
proceeding in respect of which any Indemnified Person is or
could have been a party and indemnity could have been sought
hereunder by such Indemnified Person, unless such settlement
(A) includes an unconditional release of such Indemnified
Person, in form and substance satisfactory to such Indemnified
Person, from all liability on claims that are the subject
matter of such proceeding and (B) does not include any
statement as to an admission of fault, culpability or failure
to act by or on behalf of an Indemnified Person.
(d) If the indemnification provided for in the first and
second paragraphs of this Section 7 is unavailable to, or
insufficient to hold harmless, an Indemnified Person in respect
of any losses, claims, damages or liabilities referred to
therein, then each Indemnifying Person under such paragraphs,
in lieu of indemnifying such Indemnified Person thereunder and
in order to provide for just and equitable contribution, shall
contribute to the amount paid or payable by such Indemnified
Person as a result of such losses, claims, damages or
liabilities in such proportion as is appropriate to reflect the
relative fault of the Indemnifying Person or Persons on the one
hand and the Indemnified Person or Persons on the other in
connection with the statements or omissions (or alleged
statements or omissions) that resulted in such losses, claims,
damages or liabilities (or actions in respect thereof) as well
as any other relevant equitable considerations. The relative
fault of the parties shall be determined by reference to, among
other things, whether the untrue or alleged untrue statement of
a material fact or the omission or alleged omission to state a
material fact relates to information supplied by the Company on
the one hand or by the Participants or such other Indemnified
Person, as the case may be, on the other, the parties' relative
intent, knowledge, access to information and opportunity to
correct or prevent such statement or omission and any other
equitable considerations appropriate under the circumstances.
(e) The parties agree that it would not be just and
equitable if contribution pursuant to this Section 7 were determined
by pro rata allocation (even if the Participants were treated as
one entity for such purpose) or by any other method of
allocation that does not take account of the equitable
considerations referred to in the immediately preceding
paragraph. The amount paid or payable by an Indemnified Person
as a result of the losses, claims, damages and liabilities
referred to in the immediately preceding paragraph shall be
deemed to include, subject to the limitations set forth above,
any reasonable legal or other expenses actually incurred by
such Indemnified Person in connection with investigating or
defending any such action or claim. Notwithstanding the
provisions of this Section 7, in no event shall a Participant
be required to contribute any amount in excess of the amount by
which proceeds received by such Participant from sales of
Registrable Notes or Exchange Notes, as the case may be,
exceeds the amount of any damages that such Participant has
otherwise been required to pay by reason of such untrue or
alleged untrue statement or omission or alleged omission. No
Person guilty of fraudulent misrepresentation (within the
meaning of Section 11(f) of the Securities Act) shall be
entitled to contribution from any Person who was not guilty of
such fraudulent misrepresentation.
(f) The indemnity and contribution agreements contained in
this Section 7 will be in addition to any liability which the
Indemnifying Persons may otherwise have to the Indemnified
Persons referred to above.
8. Rules 144 and 144A
------------------
The Company covenants that it will file the reports
required to be filed by it under the Securities Act and the
Exchange Act in a timely manner and, if at any time it is not
required to file such reports, it will, upon the request of any
Holder of Registrable Notes, make publicly available other
information so long as necessary to permit sales pursuant to
Rule 144 and Rule 144A. The Company further covenants, for so
long as any Registrable Notes remain outstanding, to make
available to any Holder or beneficial owner of Registrable
Notes in connection with any sale thereof and any prospective
purchaser of such Registrable Notes from such Holder or
beneficial owner, the information required by Rule 144A(d)(4)
in order to permit resales of such Registrable Notes pursuant
to Rule 144A.
9. Underwritten Registrations
--------------------------
If any of the Registrable Notes covered by any Shelf
Registration are to be sold in an underwritten offering, the
investment banker or investment bankers and manager or managers
that will manage the offering will be selected by the Holders
of a majority in aggregate principal amount of such Registrable
Notes included in such offering and reasonably acceptable to
the Company.
No Holder of Registrable Notes may participate in any
underwritten registration hereunder unless such Holder
(a) agrees to sell such Holder's Registrable Notes on the basis
provided in any underwriting arrangements approved by the
Persons entitled hereunder to approve such arrangements and
(b) completes and executes all questionnaires, powers of
attorney, indemnities, underwriting agreements and other
documents required under the terms of such underwriting
arrangements.
10. Miscellaneous
-------------
(a) Remedies. In the event of a breach by the Company
of any of its obligations under this Agreement, each Holder of
Registrable Notes and each Participating Broker-Dealer holding
Exchange Notes, in addition to being entitled to exercise all
rights provided herein, in the Indenture or, in the case of an
Initial Purchaser, in the Purchase Agreement, or granted by
law, including recovery of damages, will be entitled to
specific performance of its rights under this Agreement. The
Company agrees that monetary damages would not be adequate
compensation for any loss incurred by reason of a breach by it
of any of the provisions of this Agreement and hereby further
agrees that, in the event of any action for specific
performance in respect of such breach, it shall waive the
defense that a remedy at law would be adequate.
(b) No Inconsistent Agreements. The Company has not
entered, as of the date hereof, and shall not enter, after the date
of this Agreement, into any agreement with respect to any of its
securities that is inconsistent with the rights granted to the
Holders of Registrable Notes in this Agreement or otherwise
conflicts with the provisions hereof. The Company has not
entered and will not enter into any agreement with respect to
any of its securities which will grant to any Person piggy-back
rights with respect to a Registration Statement.
(c) Adjustments Affecting Registrable Notes. The Company
shall not, directly or indirectly, take any action with respect
to the Registrable Notes as a class that would adversely affect
the ability of the Holders of Registrable Notes to include such
Registrable Notes in a registration undertaken pursuant to this
Agreement.
(d) Amendments and Waivers. The provisions of this
Agreement may not be amended, modified or supplemented, and waivers
or consents to departures from the provisions hereof may not be
given, otherwise than with the prior written consent of (i) the
Holders of not less than a majority in aggregate principal
amount of the then outstanding Registrable Notes and (ii) in
circumstances that would adversely affect Participating
Broker-Dealers, the Participating Broker-Dealers holding not
less than a majority in aggregate principal amount of the
Exchange Notes held by all Participating Broker-Dealers;
provided, however, that Section 7 and this Section 10(d) may
not be amended, modified or supplemented without the prior
written consent of each Holder and each Participating
Broker-Dealer (including any person who was a Holder or
Participating Broker-Dealer of Registrable Notes or Exchange
Notes, as the case may be, disposed of pursuant to any
Registration Statement). Notwithstanding the foregoing, a
waiver or consent to depart from the provisions hereof with
respect to a matter that relates exclusively to the rights of
Holders of Registrable Notes whose securities are being
tendered pursuant to the Exchange Offer or sold pursuant to a
Registration Statement and that does not directly or indirectly
affect, impair, limit or compromise the rights of other Holders
of Registrable Notes may be given by Holders of at least a
majority in aggregate principal amount of the Registrable Notes
being tendered or being sold by such Holders pursuant to such
Registration Statement.
(e) Notices. All notices and other communications provided
for or permitted hereunder shall be made in writing by
hand-delivery, registered first-class mail, next-day air
courier or telecopier:
1. if to a Holder of Registrable Notes or any
Participating Broker-Dealer, at the most current address
of such Holder or Participating Broker-Dealer, as the case
may be, set forth on the records of the registrar under
the Indenture, with a copy in like manner to the Initial
Purchasers as follows:
Citicorp Securities, Inc.
Citibank Canada Securities Limited
Citibank International plc
c/o Citicorp Securities, Inc.
399 Park Avenue
New York, New York 10043
Facsimile No.: (212) 559-0292
Attention: High-Yield Finance
Department
with a copy to:
Cahill Gordon & Reindel
80 Pine Street
New York, New York 10005
Facsimile No.: (212) 269-5420
Attention: James J. Clark, Esq.
2. if to the Initial Purchasers, at the address
specified in Section 10(e)(1);
3. if to the Company, as follows:
International Shipholding Corporation
650 Poydras Street, Suite 1700
New Orleans, Louisiana 70130
Facsimile No.: (504) 529-2078
Attention: Chief Financial Officer
with copies to:
Jones, Walker, Waechter, Poitevent,
Carrere & Denegre, L.L.P.
201 Saint Charles Avenue
New Orleans, Louisiana 70170
Facsimile No.: (504) 582-8583
Attention: L. Richards McMillan, II, Esq.
All such notices and communications shall be deemed
to have been duly given: when delivered by hand, if personally
delivered; five Business Days after being deposited in the
mail, postage prepaid, if mailed; one Business Day after being
timely delivered to a next-day air courier guaranteeing
overnight delivery; and when receipt is acknowledged by the
addressee, if telecopied.
Copies of all such notices, demands or other
communications shall be concurrently delivered by the Person
giving the same to the Trustee under the Indenture at the
address specified in such Indenture.
(f) Successors and Assigns. This Agreement shall inure
to the benefit of and be binding upon the successors and assigns of
each of the parties hereto and the Holders; provided, however,
that this Agreement shall not inure to the benefit of or be
binding upon a successor or assign of a Holder unless and to
the extent such successor or assign holds Registrable Notes.
(g) Counterparts. This Agreement may be executed in any
number of counterparts and by the parties hereto in separate
counterparts, each of which when so executed shall be deemed to
be an original and all of which taken together shall constitute
one and the same agreement.
(h) Headings. The headings in this Agreement are for
convenience of reference only and shall not limit or otherwise
affect the meaning hereof.
(i) Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK,
AS APPLIED TO CONTRACTS MADE AND PERFORMED WITHIN THE STATE OF
NEW YORK, WITHOUT REGARD TO PRINCIPLES OF CONFLICTS OF LAW.
(j) Severability. If any term, provision, covenant or
restriction of this Agreement is held by a court of competent
jurisdiction to be invalid, illegal, void or unenforceable, the
remainder of the terms, provisions, covenants and restrictions
set forth herein shall remain in full force and effect and
shall in no way be affected, impaired or invalidated, and the
parties hereto shall use their best efforts to find and employ
an alternative means to achieve the same or substantially the
same result as that contemplated by such term, provision,
covenant or restriction. It is hereby stipulated and declared
to be the intention of the parties that they would have
executed the remaining terms, provisions, covenants and
restrictions without including any of such that may be
hereafter declared invalid, illegal, void or unenforceable.
(k) Notes Held by the Company or Its Affiliates.
Whenever the consent or approval of Holders of a specified percentage
of Registrable Notes is required hereunder, Registrable Notes held
by the Company or its affiliates (as such term is defined in
Rule 405 under the Securities Act) shall not be counted in
determining whether such consent or approval was given by the
Holders of such required percentage.
(l) Third Party Beneficiaries. Holders of Registrable Notes
and Participating Broker-Dealers are intended third party
beneficiaries of this Agreement and this Agreement may be
enforced by such Persons.
(m) Entire Agreement. This Agreement, together with the
Purchase Agreement and the Indenture, is intended by the
parties as a final and exclusive statement of the agreement and
understanding of the parties hereto in respect of the subject
matter contained herein and therein and any and all prior oral
or written agreements, representations, or warranties,
contracts, understandings, correspondence, conversations and
memoranda between the Initial Purchasers on the one hand and
the Company on the other, or between or among any agents,
representatives, parents, subsidiaries, affiliates,
predecessors in interest or successors in interest with respect
to the subject matter hereof and thereof are merged herein and
replaced hereby.
IN WITNESS WHEREOF, the parties have executed this
Agreement as of the date first written above.
INTERNATIONAL SHIPHOLDING
CORPORATION
By:
Name:
Title:
CITICORP SECURITIES, INC.
CITIBANK CANADA SECURITIES LIMITED
CITIBANK INTERNATIONAL PLC
By:
Name:
Title:
