EXHIBIT 4.1
CONFORMED COPY
- --------------------------------------------------------------------------------
-----------------------------------------------------
WESTLAKE CHEMICAL CORPORATION
and each of the Guarantors named herein
8 3/4% SENIOR NOTES DUE 2011
----------------------------
INDENTURE
Dated as of July 31, 2003
----------------------------
JPMorgan Chase Bank
Trustee
----------------------------
- --------------------------------------------------------------------------------
CROSS-REFERENCE TABLE*
Trust Indenture
Act Section Indenture Section
310(a)(1)................................................................... 7.10
(a)(2)................................................................. 7.10
(a)(3)................................................................. N.A.
(a)(4)................................................................. N.A.
(a)(5)................................................................. 7.10
(b).................................................................... 7.10
(c).................................................................... N.A.
311(a)...................................................................... 7.11
(b).................................................................... 7.11
(c).................................................................... N.A.
312(a)...................................................................... 2.05
(b).................................................................... 12.03
(c).................................................................... 12.03
313(a)...................................................................... 7.06
(b)(2)................................................................. 7.06; 7.07
(c).................................................................... 7.06; 12.02
(d).................................................................... 7.06
314(a)...................................................................... 4.03; 4.04; 12.05
(c)(1)................................................................. 12.04
(c)(2)................................................................. 12.04
(c)(3)................................................................. N.A.
(e).................................................................... 12.05
(f).................................................................... N.A.
315(a)...................................................................... 7.01
(b).................................................................... 7.05,12.02
(c).................................................................... 7.01
(d).................................................................... 7.01
(e).................................................................... 6.11
316(a) (last sentence)...................................................... 2.09
(a)(1)(A).............................................................. 6.05
(a)(1)(B).............................................................. 6.04
(a)(2)................................................................. N.A.
(b).................................................................... 6.07
(c).................................................................... 9.04
317(a)(1)................................................................... 6.08
(a)(2)................................................................. 6.09
(b).................................................................... 2.04
318(a)...................................................................... 12.01
(b).................................................................... N.A.
(c).................................................................... 12.01
N.A. means not applicable.
* This Cross Reference Table is not 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.......................................................... 23
Section 1.03 Incorporation by Reference of Trust Indenture Act.......................... 24
Section 1.04 Rules of Construction...................................................... 24
ARTICLE 2.
THE NOTES
Section 2.01 Amount, Form and Dating.................................................... 25
Section 2.02 Execution and Authentication............................................... 26
Section 2.03 Registrar, Paying Agent, Depositary and Custodian.......................... 26
Section 2.04 Paying Agent to Hold Money in Trust........................................ 27
Section 2.05 Holder Lists............................................................... 27
Section 2.06 Transfer and Exchange...................................................... 27
Section 2.07 Replacement Notes.......................................................... 40
Section 2.08 Outstanding Notes.......................................................... 40
Section 2.09 Treasury Notes............................................................. 40
Section 2.10 Temporary Notes............................................................ 41
Section 2.11 Cancellation............................................................... 41
Section 2.12 Defaulted Interest......................................................... 41
ARTICLE 3.
REDEMPTION AND PREPAYMENT
Section 3.01 Notices to Trustee......................................................... 41
Section 3.02 Selection of Notes to Be Redeemed or Purchased............................. 42
Section 3.03 Notice of Redemption....................................................... 42
Section 3.04 Effect of Notice of Redemption............................................. 43
Section 3.05 Deposit of Redemption or Purchase Price.................................... 43
Section 3.06 Notes Redeemed or Purchased in Part........................................ 44
Section 3.07 Optional Redemption........................................................ 44
Section 3.08 Mandatory Redemption....................................................... 44
Section 3.09 Offer to Purchase by Application of Excess Proceeds........................ 45
ARTICLE 4.
COVENANTS
Section 4.01 Payment of Notes........................................................... 47
Section 4.02 Maintenance of Office or Agency............................................ 47
Section 4.03 Reports.................................................................... 48
Section 4.04 Compliance Certificate..................................................... 49
Section 4.05 Taxes...................................................................... 49
Section 4.06 Stay, Extension and Usury Laws............................................. 49
Section 4.07 Restricted Payments........................................................ 50
Section 4.08 Dividend and Other Payment Restrictions Affecting Subsidiaries............. 53
Section 4.09 Incurrence of Indebtedness and Issuance of Preferred Stock................. 54
Section 4.10 Asset Sales................................................................ 57
Section 4.11 Transactions with Affiliates............................................... 59
Section 4.12 Liens...................................................................... 60
Section 4.13 Corporate Existence........................................................ 60
Section 4.14 Offer to Repurchase Upon Change of Control................................. 61
Section 4.15 Limitation on Sale and Leaseback Transactions.............................. 62
Section 4.16 Payments for Consent....................................................... 63
Section 4.17 Additional Note Guarantees................................................. 63
Section 4.18 Designation of Restricted and Unrestricted Subsidiaries.................... 63
Section 4.19 Accounts Receivable Facilities............................................. 63
ARTICLE 5.
SUCCESSORS
Section 5.01 Merger, Consolidation, or Sale of Assets................................... 64
Section 5.02 Successor Corporation Substituted.......................................... 65
ARTICLE 6.
DEFAULTS AND REMEDIES
Section 6.01 Events of Default.......................................................... 65
Section 6.02 Acceleration............................................................... 67
Section 6.03 Other Remedies............................................................. 67
Section 6.04 Waiver of Past Defaults.................................................... 67
Section 6.05 Control by Majority........................................................ 68
Section 6.06 Limitation on Suits........................................................ 68
Section 6.07 Rights of Holders of Notes to Receive Payment.............................. 68
Section 6.08 Collection Suit by Trustee................................................. 68
Section 6.09 Trustee May File Proofs of Claim........................................... 69
Section 6.10 Priorities................................................................. 69
Section 6.11 Undertaking for Costs...................................................... 69
ARTICLE 7.
TRUSTEE
Section 7.01 Duties of Trustee.......................................................... 70
Section 7.02 Rights of Trustee.......................................................... 71
Section 7.03 Individual Rights of Trustee............................................... 72
Section 7.04 Trustee's Disclaimer....................................................... 72
Section 7.05 Notice of Defaults......................................................... 72
Section 7.06 Reports by Trustee to Holders of the Notes................................. 72
Section 7.07 Compensation and Indemnity................................................. 73
Section 7.08 Replacement of Trustee..................................................... 73
Section 7.09 Successor Trustee by Merger, Etc........................................... 74
Section 7.10 Eligibility; Disqualification.............................................. 74
Section 7.11 Preferential Collection of Claims Against Company.......................... 75
ARTICLE 8.
LEGAL DEFEASANCE AND COVENANT DEFEASANCE
Section 8.01 Option to Effect Legal Defeasance or Covenant Defeasance................... 75
Section 8.02 Legal Defeasance and Discharge............................................. 75
Section 8.03 Covenant Defeasance........................................................ 75
Section 8.04 Conditions to Legal or Covenant Defeasance................................. 76
ii
Section 8.05 Deposited Money and Government Securities to be Held in
Trust; Other Miscellaneous Provisions...................................... 77
Section 8.06 Repayment to Company....................................................... 77
Section 8.07 Reinstatement.............................................................. 78
ARTICLE 9.
AMENDMENT, SUPPLEMENT AND WAIVER
Section 9.01 Without Consent of Holders of Notes........................................ 78
Section 9.02 With Consent of Holders of Notes........................................... 79
Section 9.03 Compliance with Trust Indenture Act........................................ 80
Section 9.04 Revocation and Effect of Consents.......................................... 80
Section 9.05 Notation on or Exchange of Notes........................................... 81
Section 9.06 Trustee to Sign Amendments, etc............................................ 81
ARTICLE 10.
NOTE GUARANTEES
Section 10.01 Guarantee.................................................................. 81
Section 10.02 Limitation on Guarantor Liability.......................................... 83
Section 10.03 Execution and Delivery of Note Guarantee................................... 83
Section 10.04 Guarantors May Consolidate, etc., on Certain Terms......................... 83
Section 10.05 Releases Following Sale of Assets.......................................... 84
ARTICLE 11.
SATISFACTION AND DISCHARGE
Section 11.01 Satisfaction and Discharge................................................. 85
Section 11.02 Application of Trust Money................................................. 86
ARTICLE 12.
MISCELLANEOUS
Section 12.01 Trust Indenture Act Controls............................................... 86
Section 12.02 Notices.................................................................... 86
Section 12.03 Communication by Holders of Notes with Other Holders of Notes.............. 87
Section 12.04 Certificate and Opinion as to Conditions Precedent......................... 88
Section 12.05 Statements Required in Certificate or Opinion.............................. 88
Section 12.06 Rules by Trustee and Agents................................................ 88
Section 12.07 No Personal Liability of Directors, Officers, Employees and Stockholders... 88
Section 12.08 Governing Law.............................................................. 88
Section 12.09 No Adverse Interpretation of Other Agreements.............................. 89
Section 12.10 Successors................................................................. 89
Section 12.11 Severability............................................................... 89
Section 12.12 Counterpart Originals...................................................... 89
Section 12.13 Table of Contents, Headings, etc........................................... 89
iii
EXHIBITS
Schedule I GUARANTORS
Exhibit A1 FORM OF NOTE
Exhibit A2 FORM OF REGULATION S TEMPORARY GLOBAL NOTE
Exhibit B FORM OF CERTIFICATE OF TRANSFER
Exhibit C FORM OF CERTIFICATE OF EXCHANGE
Exhibit D FORM OF CERTIFICATE OF ACQUIRING INSTITUTIONAL ACCREDITED
INVESTOR
Exhibit E FORM OF NOTATION OF NOTE GUARANTEE
Exhibit F FORM OF SUPPLEMENTAL INDENTURE
iv
INDENTURE dated as of July 31, 2003 among Westlake Chemical
Corporation, a Delaware corporation (the "Company"), the Guarantors (as defined)
and JPMorgan Chase Bank, as trustee (the "Trustee").
The Company, the Guarantors and the Trustee agree as follows for the
benefit of each other and for the equal and ratable benefit of the Holders (as
defined) of the Company's 8-3/4% Senior Notes due 2011 (the "Notes"):
ARTICLE 1.
DEFINITIONS AND INCORPORATION
BY REFERENCE
Section 1.01 Definitions.
"144A Global Note" means a Global Note substantially in the form of
Exhibit A-1 hereto bearing the Global Note Legend and the Private Placement
Legend and deposited with or on behalf of, and registered in the name of, the
Depositary or its nominee that will be issued in a denomination equal to the
outstanding principal amount of the Notes sold in reliance on Rule 144A.
"Accounts Receivable Subsidiary" means any Wholly Owned Subsidiary of
the Company (i) which is formed solely for the purpose of, and which engages in
no substantial activities other than activities in connection with, financing
accounts receivable of the Company and/or its Restricted Subsidiaries, (ii)
which is designated by the Company as an Accounts Receivables Subsidiary
pursuant to an Officers' Certificate delivered to the Trustee, (iii) no portion
of Indebtedness or any other obligation (contingent or otherwise) of which is at
any time recourse to or obligates the Company or any Restricted Subsidiary in
any way, or subjects any property or asset of the Company or any Restricted
Subsidiary, directly or indirectly, contingently or otherwise, to the
satisfaction thereof, other than pursuant to (1) representations, warranties and
covenants (or, any indemnity with respect to such representations, warranties
and covenants) entered into in the ordinary course of business in connection
with the sale (including a sale in exchange for a promissory note of or Equity
Interest in such Accounts Receivable Subsidiary) of accounts receivable to such
Accounts Receivable Subsidiary or (2) any guarantee of any such accounts
receivable financing by the Company or any Restricted Subsidiary that is
permitted to be incurred pursuant to Section 4.07 and Section 4.09 hereof, (iv)
with which neither the Company nor any Restricted Subsidiary has any contract,
agreement, arrangement or understanding other than contracts, agreements,
arrangements and understandings entered into in the ordinary course of business
in connection with the sale (including a sale in exchange for a promissory note
of or Equity Interest in such Accounts Receivable Subsidiary) of accounts
receivable in accordance with Section 4.19 hereof and fees payable in the
ordinary course of business in connection with servicing accounts receivable and
(v) with respect to which neither the Company nor any Restricted Subsidiary has
any obligation (a) to subscribe for additional Equity Interests therein or make
any additional capital contribution or similar payment or transfer thereto other
than in connection with the sale (including a sale in exchange for a promissory
note of or Equity Interest in such Accounts Receivable Subsidiary) of accounts
receivable to such Accounts Receivable Subsidiary in accordance with Section
4.19 hereof or (b) to maintain or preserve the solvency, any balance sheet term,
financial condition, level of income or results of operations thereof.
"Acquired Debt" means, with respect to any specified Person:
(1) Indebtedness of any other Person existing at the time such
other Person is merged with or into or became a Restricted Subsidiary
of such specified Person, whether or not such Indebtedness is incurred
in connection with, or in contemplation of, such other Person merging
with or into, or becoming a Restricted Subsidiary of, such specified
Person; and
(2) Indebtedness secured by a Lien that, at the time of
acquisition of an asset by such specified Person, encumbers such asset.
"Additional Interest" shall have the meaning set forth in Section 6 of
the Registration Rights Agreement.
"Additional Notes" means any Notes (other than the Initial Notes)
issued under this Indenture in accordance with Sections 2.02 and 4.09 hereof, as
part of the same series as the Initial Notes.
"Affiliate" of any specified Person means any other Person directly or
indirectly controlling or controlled by or under direct or indirect common
control with such specified Person. For purposes of this definition, "control,"
as used with respect to any Person, means the possession, directly or
indirectly, of the power to direct or cause the direction of the management and
policies of such Person, whether through the ownership of voting securities, by
agreement or otherwise. For purposes of this definition, the terms
"controlling," "controlled by" and "under common control with" have correlative
meanings.
"Agent" means any Registrar or Paying Agent.
"Applicable Premium" means, with respect to any Note on any redemption
date, the greater of:
(1) 1.0% of the principal amount of the Note; or
(2) the excess, if any, of:
(a) the present value on such redemption date of (i)
the redemption price of the note at July 15, 2007 (such redemption
price being set forth in Section 3.07(c) hereof) plus (ii) all required
interest payments due on the Note through July 15, 2007 (excluding
accrued but unpaid interest to the redemption date), computed using a
discount rate equal to the Treasury Rate as of such redemption date
plus 50 basis points; over
(b) the principal amount of the Note.
"Applicable Procedures" means, with respect to any transfer or exchange
of or for beneficial interests in any Global Note, the rules and procedures of
the Depositary, Euroclear and Clearstream that apply to such transfer or
exchange.
"Asset Sale" means:
(1) the sale, lease, conveyance or other disposition (other
than the creation of a Lien) of any assets or rights; provided that the
sale, conveyance or other disposition of all or substantially all of
the assets of the Company and its Restricted Subsidiaries taken as a
whole shall be governed by Section 4.14 and/or Section 5.01 and not by
Section 4.10 hereof; and
(2) the issuance of Equity Interests in any of the Company's
Restricted Subsidiaries or the sale by the Company or any Restricted
Subsidiary of Equity Interests in any of its Subsidiaries or Joint
Ventures.
Notwithstanding the preceding, none of the following items shall be
deemed to be an Asset Sale:
(1) any single transaction or series of related transactions
for which the Company or its Restricted Subsidiaries receive aggregate
consideration of less than $15.0 million;
2
(2) a transfer of assets between or among the Company and/or
its Restricted Subsidiaries;
(3) an issuance of Equity Interests by a Restricted Subsidiary
to the Company or to a Restricted Subsidiary of the Company;
(4) the sale or lease of products, services, accounts
receivable, rolling stock, barges, pipeline capacity or chemical
products in the ordinary course of business and any sale or other
disposition of damaged, worn-out or obsolete assets in the ordinary
course of business;
(5) a sale (including a sale in exchange for a promissory note
of or Equity Interest in such Accounts Receivable Subsidiary) of
accounts receivable and/or related assets to an Accounts Receivable
Subsidiary in connection with any Receivables Facility;
(6) the sale or other disposition of cash or Cash Equivalents;
or
(7) a Restricted Payment that does not violate the covenant
contained in Section 4.07 hereof or a Permitted Investment.
"Attributable Debt" in respect of a sale and leaseback transaction
means, at the time of determination, the present value of the obligation of the
lessee for net rental payments during the remaining term of the lease included
in such sale and leaseback transaction including any period for which such lease
has been extended or may, at the option of the lessor, be extended. Such present
value shall be calculated using a discount rate equal to the rate of interest
implicit in such transaction, determined in accordance with GAAP; provided,
however, that if such sale and leaseback transaction results in a Capital Lease
Obligation, the amount of Indebtedness represented thereby shall be determined
in accordance with the definition of "Capital Lease Obligation."
"Bankruptcy Law" means Title 11, U.S. Code or any similar federal or
state law for the relief of debtors.
"Beneficial Owner" has the meaning assigned to such term in Rule 13d-3
and Rule 13d-5 under the Exchange Act, except that in calculating the beneficial
ownership of any particular "person" (as that term is used in Section 13(d)(3)
of the Exchange Act), such "person" shall be deemed to have beneficial ownership
of all securities that such "person" has the right to acquire by conversion or
exercise of other securities, whether such right is currently exercisable or is
exercisable only after the passage of time. The terms "Beneficially Owns" and
"Beneficially Owned" have a corresponding meaning.
"Board of Directors" means:
(1) with respect to a corporation, the board of directors of
the corporation or any committee thereof duly authorized to act on
behalf of such board;
(2) with respect to a partnership, the Board of Directors of
the general partner of the partnership;
(3) with respect to a limited liability company, the managing
member or members or any controlling committee of managing members
thereof; and
(4) with respect to any other Person, the board or committee
of such Person serving a similar function.
3
"Board Resolution" means a copy of a resolution certified by the
Secretary or an Assistant Secretary of the Company to have been duly adopted by
the Board of Directors of the Company and to be in full force and effect on the
date of such certification, and delivered to the Trustee.
"Borrowing Base" means, as of any date, an amount equal to:
(1) 75% of the face amount of all accounts receivable owned by
the Company and its Subsidiaries as of the end of the most recent
fiscal quarter preceding such date that were not more than 90 days past
due; plus
(2) 55% of the book value of all inventory owned by the
Company and its Subsidiaries as of the end of the most recent fiscal
quarter preceding such date.
"Broker-Dealer" means Participating Broker-Dealer or Exchanging Dealer
as defined in the Registration Rights Agreement.
"Business Day" means any day other than a Legal Holiday.
"Capital Lease Obligation" means, at the time any determination is to
be made, the amount of the liability in respect of a capital lease that would at
that time be required to be capitalized on a balance sheet in accordance with
GAAP, and the Stated Maturity thereof shall be the date of the last payment of
rent or any other amount due under such lease prior to the first date upon which
such lease may be prepaid by the lessee without payment of a penalty.
"Capital Stock" means:
(1) in the case of a corporation, corporate stock;
(2) in the case of an association or business entity, any and
all shares, interests, participations, rights or other equivalents
(however designated) of corporate stock;
(3) in the case of a partnership or limited liability company,
partnership interests (whether general or limited) or membership
interests; and
(4) any other interest or participation that confers on a
Person the right to receive a share of the profits and losses of, or
distributions of assets of, the issuing Person, but excluding from all
of the foregoing any debt securities convertible into Capital Stock,
whether or not such debt securities include any right of participation
with Capital Stock.
"Cash Equivalents" means:
(1) United States dollars;
(2) securities issued or directly and fully guaranteed or
insured by the United States government or any agency or
instrumentality of the United States government (provided that the full
faith and credit of the United States is pledged in support of those
securities) having maturities of not more than one-year from the date
of acquisition;
(3) certificates of deposit and eurodollar time deposits with
maturities of one year or less from the date of acquisition, bankers'
acceptances with maturities not exceeding one year and
4
overnight bank deposits, in each case, with any domestic commercial
bank having capital and surplus in excess of $500.0 million and a
Thomson Bank Watch Rating of "B" or better;
(4) repurchase obligations with a term of not more than seven
days for underlying securities of the types described in clauses (2)
and (3) above entered into with any financial institution meeting the
qualifications specified in clause (3) above;
(5) commercial paper having one of the two highest ratings
obtainable from Moody's or S&P and in each case maturing within nine
months after the date of acquisition; and
(6) investments in any U.S. dollar denominated money market
fund as defined by Rule 2a-7 under the Investment Company Act of 1940,
as amended.
"Change of Control" means the occurrence of any of the following:
(1) the direct or indirect sale, transfer, conveyance or other
disposition (other than by way of merger or consolidation), in one or a
series of related transactions, of all or substantially all of the
properties or assets of the Company and its Restricted Subsidiaries
taken as a whole to any "person" (as that term is used in Section 13(d)
of the Exchange Act) other than a Principal or a Related Party of a
Principal;
(2) the adoption of a plan relating to the liquidation or
dissolution of the Company;
(3) the consummation of any transaction (including, without
limitation, any merger or consolidation) the result of which is that
any "person" (as defined above), other than the Principals and their
Related Parties or a Permitted Group, becomes the Beneficial Owner,
directly or indirectly, of more than 50% of the Voting Stock of the
Company, measured by voting power rather than number of shares, other
than in any transaction that complies with clause (4) below;
(4) the Company consolidates with, or merges with or into, any
Person, or any Person consolidates with, or merges with or into, the
Company, in any such event pursuant to a transaction in which any of
the outstanding Voting Stock of the Company or such other Person is
converted into or exchanged for cash, securities or other property,
other than any such transaction where the Voting Stock of the Company
outstanding immediately prior to such transaction is converted into or
exchanged for Voting Stock (other than Disqualified Stock) of the
surviving or transferee Person constituting a majority of the
outstanding shares of such Voting Stock of such surviving or transferee
Person (immediately after giving effect to such issuance); or
(5) after an initial public offering of common stock of the
Company or any direct or indirect parent of the Company, the first day
on which a majority of the members of the Board of Directors of the
Company are not Continuing Directors.
"Clearstream" means Clearstream Banking, S.A. and its successors and
assigns.
"Company" means the Person named as the "Company" in the first
paragraph of this instrument until a successor Person shall have become such
pursuant to the applicable provisions of this Indenture, and thereafter
"Company" shall mean such successor Person; provided, however, that for purposes
of any provision contained herein which is required by the TIA, "Company" shall
also mean each other obligor (if any), other than a Guarantor, on the Notes.
5
"Consolidated Cash Flow" means, with respect to any specified Person
for any period, the Consolidated Net Income of such Person for such period plus,
without duplication:
(1) an amount equal to any extraordinary loss plus any net
loss realized by such Person or any of its Restricted Subsidiaries in
connection with an Asset Sale, to the extent such losses were deducted
in computing such Consolidated Net Income; plus
(2) provision for taxes based on income or profits of such
Person and its Restricted Subsidiaries for such period (including any
provision for taxes on the Net Income of any Joint Venture that is a
pass-through entity for federal income tax purposes, to the extent such
taxes are paid or payable by such Person or any of its Restricted
Subsidiaries, provided, however, that such provision for taxes shall
only be equal to such Person's proportional share in the Joint
Venture), to the extent that such provision for taxes was deducted in
computing such Consolidated Net Income; plus
(3) the Fixed Charges of such Person and its Restricted
Subsidiaries for such period, to the extent that such Fixed Charges
were deducted in computing such Consolidated Net Income; plus
(4) depreciation, amortization (including amortization of
intangibles but excluding amortization of prepaid cash expenses that
were paid in a prior period) and other non-cash expenses (excluding any
such non-cash expense to the extent that it represents an accrual of or
reserve for cash expenses in any future period or amortization of a
prepaid cash expense that was paid in a prior period) of such Person
and its Restricted Subsidiaries for such period to the extent that such
depreciation, amortization and other non-cash expenses were deducted in
computing such Consolidated Net Income; minus
(5) non-cash items increasing such Consolidated Net Income for
such period, other than the accrual of revenue in the ordinary course
of business;
in each case, on a consolidated basis and determined in accordance with GAAP.
Notwithstanding the preceding, the provision for taxes based on the
income or profits of, and the depreciation and amortization and other non-cash
expenses of, a Restricted Subsidiary of the Company shall be added to
Consolidated Net Income to compute Consolidated Cash Flow of the Company only to
the extent that a corresponding amount would be permitted at the date of
determination to be distributed as a dividend to the Company by such Restricted
Subsidiary without prior governmental approval (that has not been obtained), and
without direct or indirect restriction pursuant to the terms of its charter and
all agreements, instruments, judgments, decrees, orders, statutes, rules and
governmental regulations applicable to that Restricted Subsidiary or its
stockholders.
"Consolidated Net Income" means, with respect to any specified Person
for any period, the aggregate of the Net Income of such Person and its
Restricted Subsidiaries for such period, on a consolidated basis, determined in
accordance with GAAP; provided that:
(1) the Net Income (but not loss) of any Person that is not a
Restricted Subsidiary or that is accounted for by the equity method of
accounting shall be included only to the extent of the amount of
dividends or similar distributions paid in cash to the specified Person
or a Restricted Subsidiary of the Person;
6
(2) the Net Income of any Restricted Subsidiary shall be
excluded to the extent that the declaration or payment of dividends or
similar distributions by that Restricted Subsidiary of that Net Income
is not at the date of determination permitted without any prior
governmental approval (that has not been obtained) or, directly or
indirectly, by operation of the terms of its charter or any agreement,
instrument, judgment, decree, order, statute, rule or governmental
regulation applicable to that Restricted Subsidiary or its
stockholders;
(3) the cumulative effect of a change in accounting principles
shall be excluded; and
(4) notwithstanding clause (1) above, the Net Income (but not
loss) of any Unrestricted Subsidiary shall be excluded, whether or not
distributed to the specified Person or one of its Subsidiaries.
"Continuing Directors" means, as of any date of determination, any
member of the Board of Directors of the Company who:
(1) was a member of such Board of Directors on the date
hereof; or
(2) was nominated for election or elected or appointed to such
Board of Directors with the approval of, or whose nomination for
election by the stockholders was approved by, a majority of the
Continuing Directors who were members of such Board at the time of such
nomination, appointment or election.
"Corporate Trust Office of the Trustee" shall be at the address of the
Trustee specified in Section 12.02 hereof or such other address as to which the
Trustee may give notice to the Company and the Guarantors.
"Credit Agreement" means, collectively, (i) that certain credit
agreement, dated as of the date hereof, among the financial institutions from
time to time party thereto, Bank of America, N.A., Banc of America Securities
LLC, the Company and certain Subsidiaries of the Company providing for a
revolving credit facility and (ii) that certain credit agreement, dated as of
the date hereof, among the Company, certain Subsidiaries of the Company, lenders
party thereto and Bank of America, N.A. providing for a term loan, in each case,
including any related notes, guarantees, collateral documents, instruments and
agreements executed in connection therewith and in each case as amended,
restated, modified, renewed, refunded, replaced or refinanced in whole or in
part from time to time.
"Credit Facilities" means, one or more debt facilities (including,
without limitation, the Credit Agreement and any Receivable Facility) or
commercial paper facilities, in each case, with banks or other institutional
lenders providing for revolving credit loans, term loans, receivables financing
(including through the sale of receivables to such lenders or to Accounts
Receivable Subsidiaries) or letters of credit, in each case, as amended,
restated, modified, renewed, refunded, replaced or refinanced (including by
means of sales of debt securities to institutional investors) in whole or in
part from time to time, whether or not with the same lenders or agents.
"Custodian" means the Trustee, as custodian with respect to the Notes
issued in global form, or any successor entity thereto.
"Default" means any event that is, or with the passage of time or the
giving of notice or both would be, an Event of Default.
7
"Definitive Note" means a certificated Note (other than a Global Note)
registered in the name of the Holder thereof and issued in accordance with
Section 2.06 hereof, substantially in the form of Exhibit A1 hereto except that
such Note shall not bear the Global Note Legend and shall not have the "Schedule
of Exchanges of Interests in the Global Note" attached thereto.
"Depositary" means, with respect to the Notes issuable or issued in
whole or in part in global form, the Person specified in Section 2.03 hereof as
the Depositary with respect to the Notes, and any and all successors thereto
appointed as depositary hereunder and having become such pursuant to the
applicable provision of this Indenture.
"Disqualified Stock" means any Capital Stock that, by its terms (or by
the terms of any security into which it is convertible, or for which it is
exchangeable, in each case, at the option of the holder of the Capital Stock),
or upon the happening of any event, matures or is mandatorily redeemable,
pursuant to a sinking fund obligation or otherwise, or redeemable at the option
of the holder of the Capital Stock, in whole or in part, on or prior to the date
that is 91 days after the date on which the Notes mature. Notwithstanding the
preceding sentence, any Capital Stock that would constitute Disqualified Stock
solely because the holders of the Capital Stock have the right to require the
Company to repurchase such Capital Stock upon the occurrence of a change of
control or an asset sale shall not constitute Disqualified Stock if the terms of
such Capital Stock provide that the Company may not repurchase or redeem any
such Capital Stock pursuant to such provisions unless such repurchase or
redemption complies with Section 4.07 hereof. The amount of Disqualified Stock
deemed to be outstanding at any time for purposes of this Indenture shall be the
maximum amount that the Company and its Restricted Subsidiaries may become
obligated to pay upon the maturity of, or pursuant to any mandatory redemption
provisions of, such Disqualified Stock, exclusive of accrued dividends.
"Domestic Subsidiary" means any Restricted Subsidiary of the Company
that was formed under the laws of the United States or any state of the United
States or the District of Columbia or that guarantees or otherwise provides
direct credit support for any Indebtedness of the Company.
"Equity Interests" means Capital Stock and all warrants, options or
other rights to acquire Capital Stock (but excluding any debt security that is
convertible into, or exchangeable for, Capital Stock).
"Euroclear" means Euroclear Bank S.A./N.V., and its successors or
assigns, as operator of the Euroclear system.
"Exchange Act" means the Securities Exchange Act of 1934, as amended,
and any successor statute.
"Exchange Notes" means the Notes issued in the Exchange Offer pursuant
to Section 2.06(f) hereof.
"Exchange Offer" means a Registered Exchange Offer as defined in the
Registration Rights Agreement.
"Exchange Offer Registration Statement" has the meaning set forth in
the Registration Rights Agreement.
"Existing Indebtedness" means the Indebtedness of the Company and its
Subsidiaries (other than Indebtedness under the Credit Agreement) in existence
on the date hereof, including all reimbursement obligations with respect to
letters of credit outstanding as of the date hereof, in each case, until such
amounts are repaid.
8
"Fair Market Value" means the price that could be negotiated in an
arm's-length transaction between a willing buyer and a willing seller not
involving distress or necessity of either party, determined in good faith by the
Board of Directors of the Company (unless otherwise herein provided).
"Fixed Charge Coverage Ratio" means, with respect to any specified
Person for any period, the ratio of the Consolidated Cash Flow of such Person
for such period to the Fixed Charges of such Person for such period. In the
event that the specified Person or any of its Restricted Subsidiaries incurs,
assumes, Guarantees, repays, repurchases, redeems, defeases or otherwise
discharges any Indebtedness (other than ordinary working capital borrowings) or
issues, repurchases or redeems preferred stock subsequent to the commencement of
the period for which the Fixed Charge Coverage Ratio is being calculated and on
or prior to the date on which the event for which the calculation of the Fixed
Charge Coverage Ratio is made (the "Calculation Date"), then the Fixed Charge
Coverage Ratio shall be calculated giving pro forma effect to such incurrence,
assumption, Guarantee, repayment, repurchase, redemption, defeasance or other
discharge of Indebtedness, or such issuance, repurchase or redemption of
preferred stock, and the use of the proceeds therefrom, as if the same had
occurred at the beginning of the applicable four-quarter reference period.
In addition, for purposes of calculating the Fixed Charge Coverage Ratio:
(1) acquisitions that have been made by the specified Person
or any of its Restricted Subsidiaries, including through mergers or
consolidations, or any Person or any of its Restricted Subsidiaries
acquired by the specified Person or any of its Restricted Subsidiaries,
and including any related financing transactions and including
increases in ownership of Restricted Subsidiaries, during the
four-quarter reference period or subsequent to such reference period
and on or prior to the Calculation Date shall be given pro forma effect
(in accordance with Regulation S-X under the Securities Act) as if they
had occurred on the first day of the four-quarter reference period;
(2) the Consolidated Cash Flow attributable to discontinued
operations, as determined in accordance with GAAP, and operations or
businesses (and ownership interests therein) disposed of prior to the
Calculation Date, shall be excluded;
(3) the Fixed Charges attributable to discontinued operations,
as determined in accordance with GAAP, and operations or businesses
(and ownership interests therein) disposed of prior to the Calculation
Date, shall be excluded, but only to the extent that the obligations
giving rise to such Fixed Charges shall not be obligations of the
specified Person or any of its Restricted Subsidiaries following the
Calculation Date;
(4) any Person that is a Restricted Subsidiary on the
Calculation Date shall be deemed to have been a Restricted Subsidiary
at all times during such four-quarter period;
(5) any Person that is not a Restricted Subsidiary on the
Calculation Date shall be deemed not to have been a Restricted
Subsidiary at any time during such four-quarter period; and
(6) if any Indebtedness bears a floating rate of interest, the
interest expense on such Indebtedness shall be calculated as if the
rate in effect on the Calculation Date had been the applicable rate for
the entire period (taking into account any Hedging Obligation
applicable to such Indebtedness if such Hedging Obligation has a
remaining term as at the Calculation Date in excess of 12 months).
9
"Fixed Charges" means, with respect to any specified Person for any
period, the sum, without duplication, of:
(1) the consolidated interest expense of such Person and its
Restricted Subsidiaries for such period, whether paid or accrued,
including, without limitation, amortization of debt issuance costs and
original issue discount, non-cash interest payments, the interest
component of any deferred payment obligations, the interest component
of all payments associated with Capital Lease Obligations, imputed
interest with respect to Attributable Debt, commissions, discounts and
other fees and charges incurred in respect of letter of credit or
bankers' acceptance financings, and net of the effect of all payments
made or received pursuant to Hedging Obligations; plus
(2) the consolidated interest of such Person and its
Restricted Subsidiaries that was capitalized during such period; plus
(3) any interest accruing on Indebtedness of another Person
that is Guaranteed by such Person or one of its Restricted Subsidiaries
or secured by a Lien on assets of such Person or one of its Restricted
Subsidiaries, whether or not such Guarantee or Lien is called upon;
plus
(4) the product of (a) all dividends, whether paid or accrued
and whether or not in cash, on any series of preferred stock of such
Person or any of its Restricted Subsidiaries, other than dividends on
Equity Interests payable solely in Equity Interests of the Company
(other than Disqualified Stock) or to the Company or a Restricted
Subsidiary of the Company, times (b) a fraction, the numerator of which
is one and the denominator of which is one minus the then current
combined federal, state and local statutory tax rate of such Person,
expressed as a decimal, in each case, on a consolidated basis and in
accordance with GAAP.
However, interest payments on Indebtedness of a Joint Venture shall, in each
case, not be deemed Fixed Charges of the Company or any Restricted Subsidiary as
of any date of determination when such Indebtedness is not considered
Indebtedness of the Company or any Restricted Subsidiary.
"Foreign Subsidiary" means any subsidiary that is not a Domestic
Subsidiary.
"GAAP" means generally accepted accounting principles set forth in the
opinions and pronouncements of the Accounting Principles Board of the American
Institute of Certified Public Accountants and statements and pronouncements of
the Financial Accounting Standards Board or in such other statements by such
other entity as have been approved by a significant segment of the accounting
profession, which are in effect from time to time.
"General Partner" means a Restricted Subsidiary of the Company or any
of its Restricted Subsidiaries that has no assets and conducts no operations
other than its ownership of a general partnership interest in a Joint Venture.
"Global Notes" means, individually and collectively, each of the
Restricted Global Notes and the Unrestricted Global Notes, substantially in the
form of Exhibits A1 and A2 hereto issued in accordance with Section 2.01,
2.06(b)(4), 2.06(d)(2), 2.06(d)(3) or 2.06(f) hereof.
"Global Note Legend" means the legend set forth in Section 2.06(g)(2),
which is required to be placed on all Global Notes issued under this Indenture.
10
"Government Securities" means direct obligations of, or obligations
guaranteed by, the United States of America, and the payment for which the
United States pledges its full faith and credit.
"Guarantee" means a guarantee other than by endorsement of negotiable
instruments for collection or deposit in the ordinary course of business, direct
or indirect, in any manner including, without limitation, by way of a pledge of
assets or through letters of credit or reimbursement agreements in respect
thereof, of all or any part of any Indebtedness (whether arising by virtue of
partnership arrangements (other than with respect to the obligations of a Joint
Venture, solely by virtue of a Restricted Subsidiary being the General Partner
of such Joint Venture if, as of the date of determination, no payment on such
Indebtedness has been made by such General Partner of such Joint Venture and
such arrangement would not be classified and accounted for, in accordance with
GAAP, as a liability on a consolidated balance sheet of the Company), or by
agreements to keep-well, to purchase assets, goods, securities or services, to
take or pay or to maintain financial statement conditions or otherwise).
"Guarantors" means each of:
(1) the guarantors listed on Schedule I hereto; and
(2) any other Subsidiary that executes a Note Guarantee in
accordance with the provisions of this Indenture,
in each case until a successor to such Person shall have become such pursuant to
the applicable provisions of this Indenture, and thereafter "Guarantor" shall
mean such successor Person.
"Hedging Obligations" means, with respect to any specified Person, the
obligations of such Person under:
(1) interest rate swap agreements (whether from fixed to
floating or from floating to fixed), interest rate cap agreements and
interest rate collar agreements;
(2) other agreements or arrangements designed to manage
interest rate risk; and
(3) other agreements or arrangements designed to protect such
Person against fluctuations in currency exchange rates, currency values
or commodity prices.
"Holder" means a Person in whose name a Note is registered in the
Registrar's books.
"IAI Global Note" means a Global Note substantially in the form of
Exhibit A1 hereto bearing the Global Note Legend and the Private Placement
Legend and deposited with or on behalf of and registered in the name of the
Depositary or its nominee that shall be issued in a denomination equal to the
outstanding principal amount of the Notes sold to Institutional Accredited
Investors.
"Indebtedness" means, with respect to any specified Person, any
indebtedness of such Person (excluding accrued expenses and trade payables),
whether or not contingent:
(1) in respect of borrowed money;
(2) evidenced by bonds, notes, debentures or similar
instruments or letters of credit (or reimbursement agreements in
respect thereof);
(3) in respect of banker's acceptances;
11
(4) representing Capital Lease Obligations or Attributable
Debt in respect of sale and leaseback transactions;
(5) representing the balance deferred and unpaid of the
purchase price of any property due more than six months after such
property is acquired; or
(6) representing any Hedging Obligations,
if and to the extent any of the preceding items (other than letters of credit,
Attributable Debt and Hedging Obligations) would appear as a liability upon a
balance sheet of the specified Person prepared in accordance with GAAP. In
addition, the term "Indebtedness" includes all Indebtedness of others secured by
a Lien on any asset of the specified Person (whether or not such Indebtedness is
assumed by the specified Person) and, to the extent not otherwise included, the
Guarantee by the specified Person of any Indebtedness of any other Person.
The amount of any Indebtedness outstanding as of any date shall be:
(1) the accreted value of the Indebtedness, in the case of any
Indebtedness issued with original issue discount;
(2) the principal amount of the Indebtedness, in the case of
any other Indebtedness; and
(3) in respect of Indebtedness of another Person secured by a
Lien on the assets of the specified Person, the lesser of:
(a) the Fair Market Value of such assets at the date
of determination, and
(b) the amount of the Indebtedness of the other
Person.
"Indenture" means this Indenture, as amended or supplemented from time
to time.
"Indirect Participant" means a Person who holds a beneficial interest
in a Global Note through a Participant.
"Initial Notes" means the first $380,000,000 aggregate principal amount
of Notes issued under this Indenture on the date hereof (and any Notes
authenticated and delivered upon registration of transfer of, or in exchange
for, or in lieu of, Initial Notes or such other Notes pursuant to Section 2.01,
2.06, 2.07, 2.10 or 3.06).
"Initial Purchasers" means each of Credit Suisse First Boston LLC, Banc
of America Securities LLC, Deutsche Bank Securities Inc., J.P. Morgan Securities
Inc., Citigroup Global Markets Inc., Scotia Capital (USA) Inc., Credit Lyonnais
Securities (USA) Inc. and CIBC World Markets Corp.
"Institutional Accredited Investor" means an institution that is an
"accredited investor" as defined in Rule 501(a)(1), (2), (3) or (7) under the
Securities Act, who is not also a QIB.
"Investment Grade" means a rating of Baa3 or better by Moody's and BBB-
or better by S&P (or, if either such entity ceases to rate the Notes for reasons
outside of the control of the Company, the equivalent investment grade credit
rating from any other "nationally recognized statistical rating
12
organization" within the meaning of Rule 15c3-1(c)(2)(vi)(F) under the Exchange
Act selected by the Company as a replacement agency).
"Investments" means, with respect to any Person, all direct or indirect
investments by such Person in other Persons (including Affiliates) in the forms
of loans (including Guarantees or other obligations), advances or capital
contributions (excluding commissions, loans, fees, compensation and advances to
officers, directors and employees made in the ordinary course of business),
purchases or other acquisitions for consideration of Indebtedness, Equity
Interests or other securities, together with all items that are or would be
classified as investments on a balance sheet prepared in accordance with GAAP.
"Investment" excludes trade credit and accounts receivable in the ordinary
course of business and reimbursement obligations in respect of letters of credit
and tender, bid, performance, government contract, surety and appeal bonds, in
each case solely with respect to obligations of the Company or any of its
Restricted Subsidiaries. If the Company or any Restricted Subsidiary of the
Company sells or otherwise disposes of any Equity Interests of any direct or
indirect Restricted Subsidiary of the Company such that, after giving effect to
any such sale or disposition, such Person is no longer a Restricted Subsidiary
of the Company, the Company shall be deemed to have made an Investment on the
date of any such sale or disposition equal to the Fair Market Value of the
Company's Investments in such Restricted Subsidiary that were not sold or
disposed of in an amount determined as provided in the last paragraph of Section
4.07(b) hereof. The acquisition by the Company or any Restricted Subsidiary of
the Company of a Person that holds an Investment in a third Person shall be
deemed to be an Investment by the Company or such Restricted Subsidiary in such
third Person in an amount equal to the Fair Market Value of the Investments held
by the acquired Person in such third Person in an amount determined as provided
in the last paragraph of Section 4.07(b) hereof. Except as otherwise provided in
this Indenture, the amount of an Investment shall be determined at the time the
Investment is made and without giving effect to subsequent changes in value.
"Joint Venture" means any joint venture between the Company and/or any
Restricted Subsidiary and any other Person, if such joint venture is:
(1) owned 50% or less by the Company and/or any of its
Restricted Subsidiaries; and
(2) not directly or indirectly controlled by or under direct
or indirect common control of the Company and/or any of its Restricted
Subsidiaries.
For purposes of this definition, "control," as used with respect to any entity,
means the possession, directly or indirectly, of the power to direct or cause
the direction of the management and policies of such entity, whether through the
ownership of voting securities, by agreement or otherwise. For purposes of this
definition, the terms "controlling," "controlled by" and "under common control
with" have correlative meanings.
"Legal Holiday" means a Saturday, a Sunday or a day on which banking
institutions in the City of New York or at a place of payment are authorized by
law, regulation or executive order to remain closed. If a payment date is a
Legal Holiday at a place of payment, payment may be made at that place on the
next succeeding day that is not a Legal Holiday, and no interest shall accrue on
such payment for the intervening period.
"Letter of Transmittal" means the letter of transmittal to be prepared
by the Company and sent to all Holders for use by such Holders in connection
with the Exchange Offer.
"Lien" means, with respect to any asset, any mortgage, lien, pledge,
charge, security interest or encumbrance of any kind in respect of such asset,
whether or not filed, recorded or otherwise perfected
13
under applicable law, including any conditional sale or other title retention
agreement, any lease in the nature thereof, any option or other agreement to
give a security interest in and any filing of or agreement to give any financing
statement under the Uniform Commercial Code (or equivalent statutes) of any
jurisdiction.
"Limited Recourse Stock Pledge" means the pledge of Equity Interests in
any Joint Venture or any Unrestricted Subsidiary to secure Non-Recourse Debt of
such Joint Venture or Unrestricted Subsidiary, which pledge is made by a
Restricted Subsidiary of the Company, the activities of which are limited to
making and managing Investments, and owning Equity Interests, in such Joint
Venture or Unrestricted Subsidiary, but only for so long as its activities are
so limited.
"Moody's" means Moody's Investors Service, Inc.
"Net Income" means, with respect to any Person, the net income (loss)
of such Person, determined in accordance with GAAP and before any reduction in
respect of preferred stock dividends, excluding, however:
(1) any gain (but not loss), together with any related
provision for taxes on such gain (but not loss), realized in connection
with:
(a) any Asset Sale or any disposition pursuant to a
sale and leaseback transaction; or
(b) the disposition of any securities by such Person
or any of its Restricted Subsidiaries or the extinguishment of any
Indebtedness of such Person or any of its Restricted Subsidiaries; and
(2) any extraordinary gain (but not loss), together with any
related provision for taxes on such extraordinary gain (but not loss).
"Net Proceeds" means the aggregate cash proceeds received by the
Company or any of its Restricted Subsidiaries in respect of any Asset Sale
(including, without limitation, any cash received upon the sale or other
disposition of any non-cash consideration received in any Asset Sale), net of
(1) the direct costs relating to such Asset Sale, including, without limitation,
legal, accounting and investment banking fees, and sales commissions, and any
relocation expenses incurred as a result of the Asset Sale, (2) taxes paid or
payable as a result of the Asset Sale, in each case, after taking into account
any available tax credits or deductions and any tax sharing arrangements, (3)
amounts required to be paid to holders of minority interests in Restricted
Subsidiaries or Joint Ventures as a result of such Asset Sale, (4) amounts
required to be applied to the repayment of Indebtedness, other than Indebtedness
under a Credit Facility, secured by a Lien on the asset or assets that were the
subject of such Asset Sale, or which must by the terms of such Lien or by
applicable law be repaid out of the proceeds of such Asset Sale, (5) all
payments made with respect to liabilities directly associated with the assets
which are the subject of the Asset Sale, including, without limitation, trade
payables and other accrued liabilities, and (6) any reserve for adjustment in
respect of the sale price of such asset or assets established in accordance with
GAAP.
"Non-Recourse Debt" means Indebtedness:
(1) as to which neither the Company nor any of its Restricted
Subsidiaries (a) provides credit support of any kind (including any
undertaking, agreement or instrument that would constitute
Indebtedness), (b) is directly or indirectly liable as a guarantor or
otherwise, or (c) constitutes the lender;
14
(2) no default with respect to which (including any rights
that the holders of the Indebtedness may have to take enforcement
action against an Unrestricted Subsidiary) would permit upon notice,
lapse of time or both any holder of any other Indebtedness of the
Company or any of its Restricted Subsidiaries to declare a default on
such other Indebtedness or cause the payment of the Indebtedness to be
accelerated or payable prior to its Stated Maturity; and
(3) as to which the lenders have been notified in writing that
they will not have any recourse to the stock or assets of the Company
or any of its Restricted Subsidiaries, other than the Equity Interests
of a Joint Venture that is not a Restricted Subsidiary or of an
Unrestricted Subsidiary pledged by the Company or any of its Restricted
Subsidiaries as a Limited Recourse Stock Pledge.
"Non-U.S. Person" means a Person who is not a U.S. Person.
"Note Guarantee" means the Guarantee by each Guarantor of the Company's
payment obligations under this Indenture and on the Notes as provided in Article
10 hereof.
"Notes" has the meaning assigned to it in the preamble to this
Indenture. The Initial Notes and the Additional Notes shall be treated as a
single class for all purposes under this Indenture, and unless the context
otherwise requires, all references to the Notes shall include the Initial Notes
and any Additional Notes.
"Obligations" means any principal, interest, penalties, fees,
indemnifications, reimbursements, damages and other liabilities payable under
the documentation governing any Indebtedness.
"Officer" means, with respect to any Person, the Chairman of the Board,
the Chief Executive Officer, the President, the Chief Operating Officer, the
Chief Financial Officer, the Treasurer, any Assistant Treasurer, the Controller,
the Secretary, any Assistant Secretary or any Vice-President of such Person.
"Officers' Certificate" means a certificate signed on behalf of the
Company by two Officers of the Company, one of whom must be the principal
executive officer, the principal financial officer, the treasurer or the
principal accounting officer of the Company, that meets the requirements of
Section 12.05 hereof.
"Offering Circular" means the offering circular of the Company dated
July 21, 2003 prepared in connection with the initial offering of the Initial
Notes.
"Opinion of Counsel" means an opinion from legal counsel who is
reasonably acceptable to the Trustee, that meets the requirements of Section
12.05 hereof. The counsel may be an employee of or counsel to the Company, any
Guarantor, any other Subsidiary of the Company or the Trustee.
"Pari Passu Indebtedness" means, in the case of the Notes, any senior
Indebtedness of the Company and, in the case of the Note Guarantees, any senior
Indebtedness of the Guarantor thereof, including, in each case, Indebtedness and
other Obligations outstanding under a Credit Facility.
"Participant" means, with respect to the Depositary, Euroclear or
Clearstream, a Person who has an account with the Depositary, Euroclear or
Clearstream, respectively (and, with respect to DTC, shall include Euroclear and
Clearstream).
15
"Permitted Business" means the petrochemical, chemicals, and vinyls or
plastic fabrications business and any other businesses related, incidental,
complementary or ancillary thereto.
"Permitted Group" means any group of investors that is deemed to be a
"person" (as that term is used in Section 13(d)(3) of the Exchange Act) at any
time prior to the Company's initial public offering of common stock, provided
that no single Person (other than the Principals and their Related Parties)
Beneficially Owns (together with its Affiliates) more of the Voting Stock of the
Company that is Beneficially Owned by such group of investors than is then
collectively Beneficially Owned by the Principals and their Related Parties in
the aggregate.
"Permitted Investments" means:
(1) any Investment in the Company or in a Restricted
Subsidiary of the Company that is a Guarantor;
(2) any Investment in Cash Equivalents;
(3) any Investment by the Company or any Restricted Subsidiary
of the Company in a Person, if as a result of such Investment:
(a) such Person becomes a Restricted Subsidiary of
the Company and a Guarantor; or
(b) such Person is merged, consolidated or
amalgamated with or into, or transfers or conveys substantially all of
its assets to, or is liquidated into, the Company or a Restricted
Subsidiary of the Company that is a Guarantor;
(4) any Investment made as a result of the receipt of non-cash
consideration from an Asset Sale that was made pursuant to and in
compliance with Section 4.10 hereof;
(5) any acquisition of assets or Capital Stock solely in
exchange for the, or out of the net cash proceeds of a substantially
concurrent, issuance of Equity Interests (other than Disqualified
Stock) of the Company;
(6) any Investments received in settlement, compromise or
resolution of:
(a) obligations of trade creditors or customers that
were incurred in the ordinary course of business of the Company or any
of its Restricted Subsidiaries, including pursuant to any plan of
reorganization or similar arrangement upon the bankruptcy or insolvency
of any trade creditor or customer; or
(b) litigation, arbitration or other disputes with
Persons who are not Affiliates;
(7) Investments represented by Hedging Obligations;
(8) loans or advances to employees made in the ordinary course
of business of the Company or the Restricted Subsidiary of the Company
in an aggregate principal amount not to exceed $2.0 million at any one
time outstanding;
16
(9) Investments in an Accounts Receivable Subsidiary that, as
conclusively determined by the Board of Directors of the Company, are
necessary or advisable to effect a Receivables Facility;
(10) Limited Recourse Stock Pledges;
(11) additional Investments in a Subsidiary of the Company
holding an interest in Suzhou Huasu Plastics Co. Ltd. in an aggregate
amount not to exceed $8.5 million;
(12) Investments in Joint Ventures in an aggregate amount not
to exceed $25.0 million;
(13) repurchases of the Notes; and
(14) other Investments in any Person having an aggregate Fair
Market Value (measured on the date each such Investment was made and
without giving effect to subsequent changes in value), when taken
together with all other Investments made pursuant to this clause (14)
that are at the time outstanding not to exceed $10.0 million.
"Permitted Liens" means:
(1) Liens on assets of the Company or any Guarantor securing
Pari Passu Indebtedness that is permitted by the terms of this
Indenture to be incurred and/or securing Hedging Obligations related
thereto;
(2) Liens in favor of the Company or any Guarantor;
(3) Liens on property of a Person existing at the time such
Person becomes a Subsidiary or is merged with or into or consolidated
with the Company or any Subsidiary of the Company; provided that such
Liens were in existence prior to the contemplation of such acquisition,
merger or consolidation and do not extend to any assets other than
those of the Person merged into or consolidated with the Company or the
Subsidiary or that becomes a Subsidiary;
(4) Liens on property (including Capital Stock) existing at
the time of acquisition of the property by the Company or any
Subsidiary of the Company, provided that such Liens were in existence
prior to, and not incurred in contemplation of, such acquisition;
(5) Liens to secure Indebtedness (including Capital Lease
Obligations) permitted by clause (4) of Section 4.09(b) covering only
the assets acquired with or financed by such Indebtedness;
(6) Liens existing on the date of this Indenture;
(7) Liens imposed by law, such as carriers', warehousemen's,
landlord's and mechanics' Liens, in each case, incurred in the ordinary
course of business;
(8) Liens created for the benefit of (or to secure) the Notes
(or the Note Guarantees);
(9) Liens securing reimbursement obligations with respect to
commercial letters of credit obtained in the ordinary course of
business, consistent with past practices, which encumber
17
documents and other property or assets relating to such letters of
credit and products and proceeds thereof;
(10) Liens incurred or assumed in connection with the issuance
of revenue bonds the interest on which is exempt from federal income
taxation pursuant to Section 103(b) of the Internal Revenue Code of
1986, as amended (or any successor provision), including, without
limitation, liens as a cash collateral account securing existing
reimbursement obligations with respect to a letter of credit issued
pursuant thereto;
(11) customary Liens for the fees, costs and expenses of
trustees and escrow agents pursuant to any indenture, escrow agreement
or similar agreement establishing a trust or escrow arrangement;
(12) Liens on assets of the Company or any Restricted
Subsidiary arising as a result of a sale and leaseback transaction with
respect to such assets; provided that the proceeds from such sale and
leaseback transaction are applied to the repayment of Indebtedness or
acquisition of assets or the making of capital expenditures pursuant to
Section 4.10 hereof;
(13) Liens on accounts receivable and related property deemed
to arise in connection with any Receivables Facility;
(14) the interest of a lessor or licensor under an operating
lease or license under which the Company or any of its Restricted
Subsidiaries are lessee, sublessee, or licensee, including protective
financing statement filings;
(15) Limited Recourse Stock Pledges;
(16) Liens encumbering customary initial deposits and margin
deposits, netting provisions and setoff rights, in each case securing
Indebtedness under Hedging Obligations;
(17) Liens to secure any Permitted Refinancing Indebtedness
permitted to be incurred under this Indenture; provided, however, that:
(a) the new Lien shall be limited to all or part of
the same property and assets that secured or, under the written
agreements pursuant to which the original Lien arose, could secure the
original Lien (plus improvements and accessions to, such property or
proceeds or distributions thereof); and
(b) the Indebtedness secured by the new Lien is not
increased to any amount greater than the sum of (x) the outstanding
principal amount or, if greater, committed amount, of the Permitted
Referencing Indebtedness and (y) an amount necessary to pay any fees
and expenses, including premiums, related to such refinancings,
refunding, extension, renewal or replacement; and
(18) Liens incurred in the ordinary course of business of the
Company or any Restricted Subsidiary of the Company with respect to
obligations that do not exceed $10.0 million at any one time
outstanding.
"Permitted Payments to Parent" means, without duplication as to
amounts:
18
(1) payments to the Parent to permit the Parent to pay when
due, or the incurrence by the Company or any Restricted Subsidiary of
expenses on behalf of Parent with respect to, reasonable accounting,
legal and administrative expenses of the Parent, in an aggregate amount
not to exceed $1.0 million per annum; and
(2) for so long as the Company is a member of a group filing a
consolidated or combined tax return with the Parent, payments to the
Parent in the amount of the relevant tax (including any penalties and
interest) that the Company would owe if the Company were filing a
separate tax return (or a separate consolidated or combined return with
its Subsidiaries that are members of the consolidated or combined
group), taking into account any carryovers and carrybacks of tax
attributes (such as net operating losses) of the Company and such
Subsidiaries from other taxable years.
"Permitted Refinancing Indebtedness" means any Indebtedness of the
Company or any of its Restricted Subsidiaries issued in exchange for, or the net
proceeds of which are used to extend, refinance, renew, replace, defease or
refund other Indebtedness of the Company or any of its Restricted Subsidiaries
(other than intercompany Indebtedness); provided that:
(1) the principal amount (or initial accreted value, if
applicable) of such Permitted Refinancing Indebtedness does not exceed
the principal amount outstanding, or in the case of a revolving line of
credit, available (or accreted value, if applicable) of the
Indebtedness extended, refinanced, renewed, replaced, defeased or
refunded (plus all accrued interest on the Indebtedness and the amount
of all expenses and premiums incurred in connection therewith);
(2) such Permitted Refinancing Indebtedness has a final
maturity date later than the final maturity date of, and has a Weighted
Average Life to Maturity equal to or greater than the Weighted Average
Life to Maturity of, the Indebtedness being extended, refinanced,
renewed, replaced, defeased or refunded;
(3) if the Indebtedness being extended, refinanced, renewed,
replaced, defeased or refunded is subordinated in right of payment to
the Notes or the Note Guarantees, such Permitted Refinancing
Indebtedness has a final maturity date later than the final maturity
date of, and is subordinated in right of payment to, the Notes or the
Note Guarantees, as applicable, on subordination terms at least as
favorable to the holders of Notes as those contained in the
documentation governing the Indebtedness being extended, refinanced,
renewed, replaced, defeased or refunded; and
(4) such Indebtedness is incurred either by the Company or by
the Restricted Subsidiary who is the obligor on the Indebtedness being
extended, refinanced, renewed, replaced, defeased or refunded.
"Person" means any individual, corporation, partnership, joint venture,
association, joint-stock company, trust, unincorporated organization, limited
liability company or government or other entity.
"Principals" means T.T. Chao, his descendants, including by adoption,
and the spouses of any such individuals.
"Private Placement Legend" means the legend set forth in Section
2.06(g)(1) to be placed on all Notes issued under this Indenture except where
otherwise permitted by the provisions of this Indenture.
19
"Public Equity Offering" means any underwritten public equity offering
of common stock of the Company yielding gross proceeds to the issuer of at least
$25.0 million.
"QIB" means a "qualified institutional buyer" as defined in Rule 144A.
"Receivables Facilities" means one or more receivables financing
facilities or arrangements, as amended from time to time, pursuant to which the
Company or any of its Restricted Subsidiaries sells (including a sale in
exchange for a promissory note of or Equity Interest in an Accounts Receivable
Subsidiary) its accounts receivable, related assets and the provision of
billing, collection and other services in connection therewith, in each case to
an Accounts Receivable Subsidiary.
"Receivables Fees" means distributions or payments made directly or by
means of discounts with respect to any participation interests issued or sold in
connection with, and other fees paid to a Person that is not the Company or a
Restricted Subsidiary in connection with, any Receivables Facility.
"Registration Rights Agreement" means the Registration Rights Agreement
dated as of July 31, 2003 among the Company, the Guarantors and the other
parties named on the signature pages thereof, as such agreement may be amended,
modified or supplemented from time to time.
"Regulation S" means Regulation S promulgated under the Securities Act.
"Regulation S Global Note" means a Regulation S Temporary Global Note
or Regulation S Permanent Global Note, as appropriate.
"Regulation S Permanent Global Note" means a permanent Global Note in
the form of Exhibit A1 hereto bearing the Global Note Legend and the Private
Placement Legend and deposited with or on behalf of and registered in the name
of the Depositary or its nominee, issued in a denomination equal to the
outstanding principal amount of the Regulation S Temporary Global Note upon
termination of the Restricted Period in accordance with Section 2.01(c).
"Regulation S Temporary Global Note" means a temporary Global Note in
the form of Exhibit A2 hereto deposited with or on behalf of and registered in
the name of the Depositary or its nominee, issued in a denomination equal to the
outstanding principal amount of the Notes initially sold in reliance on Rule 903
of Regulation S.
"Related Party" means:
(1) any controlling stockholder, 80% (or more) owned
Subsidiary, or immediate family member (in the case of an individual)
of any Principal; or
(2) any Person, the beneficiaries, stockholders, partners,
owners or Persons beneficially holding a 50% or more controlling
interest of which consist of any one or more Principals and/or such
other Persons referred to in the immediately preceding clause (1).
"Responsible Officer," when used with respect to the Trustee, means any
officer within the Institutional Trust Services department of the Trustee having
direct responsibility for administration of this Indenture.
"Restricted Definitive Note" means a Definitive Note bearing the
Private Placement Legend.
"Restricted Global Note" means a Global Note bearing the Private
Placement Legend.
20
"Restricted Investment" means an Investment other than a Permitted
Investment.
"Restricted Period" means the 40-day distribution compliance period as
defined in Regulation S or such longer period as determined in accordance with
Section 2.01(c).
"Restricted Subsidiary" of a Person means any Subsidiary of the
referent Person that is not an Unrestricted Subsidiary. Unless the context
otherwise requires, each reference to a "Restricted Subsidiary" herein shall
refer to a Restricted Subsidiary of the Company.
"Rule 144" means Rule 144 promulgated under the Securities Act.
"Rule 144A" means Rule 144A promulgated under the Securities Act.
"Rule 903" means Rule 903 promulgated under the Securities Act.
"Rule 904" means Rule 904 promulgated the Securities Act.
"S&P" means Standard & Poor's Ratings Services.
"SEC" means the Securities and Exchange Commission.
"Securities Act" means the Securities Act of 1933, as amended, or any
successor statute.
"Shelf Registration Statement" has the meaning set forth in the
Registration Rights Agreement.
"Significant Subsidiary" means any Subsidiary that would be a
"significant subsidiary" as defined in Article 1, Rule 1 - 02 of Regulation S -
X, promulgated pursuant to the Securities Act, as such Regulation is in effect
on the date hereof.
"Stated Maturity" means, with respect to any installment of interest or
principal on any series of Indebtedness, the date on which the payment of
interest or principal was scheduled to be paid in the documentation governing
such Indebtedness, and shall not include any contingent obligations to repay,
redeem or repurchase any such interest or principal prior to the date originally
scheduled for the payment thereof.
"Subsidiary" means, with respect to any specified Person:
(1) any corporation, association or other business entity of
which more than 50% of the total voting power of shares of Capital
Stock entitled (without regard to the occurrence of any contingency and
after giving effect to any voting agreement or stockholders' agreement
that effectively transfers voting power) to vote in the election of
directors, managers or trustees of the corporation, association or
other business entity is at the time owned or controlled, directly or
indirectly, by that Person or one or more of the other Subsidiaries of
that Person (or a combination thereof); and
(2) any partnership (a) the sole general partner or the
managing general partner of which is such Person or a Subsidiary of
such Person or (b) the only general partners of which are that Person
or one or more Subsidiaries of that Person (or any combination
thereof).
Unless the context otherwise requires, each reference to a "Subsidiary" herein
shall refer to a Subsidiary of the Company.
21
"TIA" means the Trust Indenture Act of 1939 as in effect on the date on
which this Indenture is qualified under the TIA.
"Treasury Rate" means, as of any redemption date, the yield to maturity
as of such redemption date of United States Treasury securities with a constant
maturity (as compiled and published in the most recent Federal Reserve
Statistical Release H.15 (519) that has become publicly available at least two
Business Days prior to the redemption date (or, if such Statistical Release is
no longer published, any publicly available source of similar market data)) most
nearly equal to the period from the redemption date to July 15, 2007; provided,
however, that if the period from the redemption date to July 15, 2007, is less
than one year, the weekly average yield on actually traded United States
Treasury securities adjusted to a constant maturity of one year shall be used.
"Trustee" means the party named as such in the preamble to this
Indenture until a successor replaces it in accordance with the applicable
provisions of this Indenture and thereafter means the successor serving
hereunder.
"Unrestricted Global Note" means a permanent Global Note substantially
in the form of Exhibit A1 attached hereto that bears the Global Note Legend and
that has the "Schedule of Exchanges of Interests in the Global Note" attached
thereto, and that is deposited with or on behalf of and registered in the name
of the Depositary, representing Notes that do not bear the Private Placement
Legend.
"Unrestricted Definitive Note" means one or more Definitive Notes that
do not bear and are not required to bear the Private Placement Legend.
"Unrestricted Subsidiary" means (i) any Accounts Receivable Subsidiary,
(ii) a Subsidiary holding an interest in Suzhou Huasu Plastics Co. Ltd., (iii)
any Subsidiary of an Unrestricted Subsidiary and (iv) any other Subsidiary of
the Company that is designated by the Board of Directors as an Unrestricted
Subsidiary pursuant to a Board Resolution, but only to the extent that such
Subsidiary:
(1) has no Indebtedness other than Non-Recourse Debt;
(2) is not party to any agreement, contract, arrangement or
understanding with the Company or any Restricted Subsidiary of the
Company unless the terms of any such agreement, contract, arrangement
or understanding are no less favorable to the Company or such
Restricted Subsidiary than those that might be obtained at the time
from Persons who are not Affiliates of the Company;
(3) is a Person with respect to which neither the Company nor
any of its Restricted Subsidiaries has any direct or indirect
obligation (a) to subscribe for additional Equity Interests or (b) to
maintain or preserve such Person's financial condition or to cause such
Person to achieve any specified levels of operating results; and
(4) has not guaranteed or otherwise directly or indirectly
provided credit support for any Indebtedness of the Company or any of
its Restricted Subsidiaries.
Any designation of a Subsidiary of the Company as an Unrestricted
Subsidiary shall be evidenced to the Trustee by filing with the Trustee a
certified copy of the Board Resolution giving effect to such designation and an
officers' certificate certifying that such designation complied with the
preceding conditions and was permitted by the Section 4.07 hereof. If, at any
time, any Unrestricted Subsidiary (other than an Accounts Receivable Subsidiary)
designated after the date hereof would fail to meet the preceding requirements
as an Unrestricted Subsidiary, it shall thereafter cease to be an Unrestricted
22
Subsidiary for purposes of this Indenture and any Indebtedness of such
Subsidiary shall be deemed to be incurred by a Restricted Subsidiary of the
Company as of such date and, if such Indebtedness is not permitted to be
incurred as of such date under Section 4.09 hereof, the Company shall be in
default of Section 4.09. The Board of Directors of the Company may at any time
designate any Unrestricted Subsidiary to be a Restricted Subsidiary; provided
that such designation shall be deemed to be an incurrence of Indebtedness by a
Restricted Subsidiary of the Company of any outstanding Indebtedness of such
Unrestricted Subsidiary and such designation shall only be permitted if (1) such
Indebtedness is permitted under Section 4.09 hereof, calculated on a pro forma
basis as if such designation had occurred at the beginning of the four-quarter
reference period; and (2) no Default or Event of Default would be in existence
following such designation.
"U.S. Person" means a U.S. person as defined in Rule 902(k) under the
Securities Act.
"Voting Stock" of any Person as of any date means the Capital Stock of
such Person that is at the time entitled to vote in the election of the Board of
Directors of such Person.
"Weighted Average Life to Maturity" means, when applied to any
Indebtedness at any date, the number of years obtained by dividing:
(1) the sum of the products obtained by multiplying (x) the
amount of each then remaining installment, sinking fund, serial
maturity or other required payments of principal, including payment at
final maturity, in respect of the Indebtedness, by (y) the number of
years (calculated to the nearest one-twelfth) that will elapse between
such date and the making of such payment; by
(2) the then outstanding principal amount of such
Indebtedness.
"Wholly Owned" Subsidiary of any specified Person means a Subsidiary of
such Person all of the outstanding Capital Stock or other ownership interests of
which (other than directors' qualifying shares) will at the time be owned by
such Person or by one or more Wholly-Owned Subsidiaries of such Person and one
or more Wholly-Owned Subsidiaries of such Person.
Section 1.02 Other Definitions.
Defined in
Term Section
---- -------
"Affiliate Transaction"............................. 4.11
"Asset Sale Offer".................................. 3.09
"Authentication Order".............................. 2.02
"Calculation Date".................................. 1.01
"Change of Control Offer"........................... 4.14
"Change of Control Payment"......................... 4.14
"Change of Control Payment Date".................... 4.14
"Covenant Defeasance"............................... 8.03
"DTC"............................................... 2.03
"Event of Default".................................. 6.01
"Excess Proceeds"................................... 4.10
"incur"............................................. 4.09
"Legal Defeasance".................................. 8.02
"Offer Amount"...................................... 3.09
"Offer Period"...................................... 3.09
23
Defined in
Term Section
---- -------
"Paying Agent"...................................... 2.03
"Payment Default"................................... 6.01
"Permitted Debt".................................... 4.09
"Purchase Date"..................................... 3.09
"Registrar"......................................... 2.03
"Restricted Payments"............................... 4.07
Section 1.03. Incorporation by Reference of Trust Indenture Act.
Whenever this Indenture refers to a provision of the TIA, the provision
is incorporated by reference in and made a part of this Indenture.
The following TIA terms used in this Indenture have the following
meanings:
"Commission" means the SEC;
"indenture securities" means the Notes and the Note Guarantees;
"indenture security holder" means a Holder of a Note;
"indenture to be qualified" means this Indenture;
"indenture trustee" or "institutional trustee" means the Trustee; and
"obligor" on the Notes and the Note Guarantees means the Company and
the Guarantors, respectively, and any other obligor upon the Notes and the Note
Guarantees, respectively.
All other terms used in this Indenture that are defined by the TIA,
defined by TIA reference to another statute or defined by SEC rule under the TIA
have the meanings so assigned to them.
Section 1.04 Rules of Construction.
Unless the context otherwise requires:
(1) a term has the meaning assigned to it;
(2) an accounting term not otherwise defined has the meaning
assigned to it in accordance with GAAP;
(3) "or" is not exclusive;
(4) words in the singular include the plural, and in the
plural include the singular;
(5) "will" shall be interpreted to express a command;
(6) provisions apply to successive events and transactions;
and
24
(7) references to sections of or rules under the Securities
Act will be deemed to include substitute, replacement of successor
sections or rules adopted by the SEC from time to time.
ARTICLE 2.
THE NOTES
Section 2.01 Amount, Form and Dating.
(a) General. Subject to Section 4.09, the aggregate principal amount of
Notes that may be authenticated and delivered under this Indenture is unlimited.
The Notes and the Trustee's certificate of authentication will be substantially
in the form of Exhibit A hereto. The Notes may have notations, legends or
endorsements required by law, stock exchange rule or usage. Each Note will be
dated the date of its authentication. The Notes shall be in denominations of
$1,000 and integral multiples thereof.
The terms and provisions contained in the Notes will constitute, and
are hereby expressly made, a part of this Indenture and the Company, the
Guarantors and the Trustee, by their execution and delivery of this Indenture,
expressly agree to such terms and provisions and to be bound thereby. However,
to the extent any provision of any Note conflicts with the express provisions of
this Indenture, the provisions of this Indenture shall govern and be
controlling.
(b) Global Notes. Notes issued in global form will be substantially in
the form of Exhibits A1 or A2 attached hereto (including the Global Note Legend
thereon and the "Schedule of Exchanges of Interests in the Global Note" attached
thereto). Notes issued in definitive form will be substantially in the form of
Exhibit A1 attached hereto (but without the Global Note Legend thereon and
without the "Schedule of Exchanges of Interests in the Global Note" attached
thereto). Each Global Note will represent such of the outstanding Notes as will
be specified therein and each shall provide that it represents the aggregate
principal amount of outstanding Notes from time to time endorsed thereon and
that the aggregate principal amount of outstanding Notes represented thereby may
from time to time be reduced or increased, as appropriate, to reflect exchanges,
transfers and redemptions. Any endorsement of a Global Note to reflect the
amount, or any increase or decrease in the amount, of outstanding Notes
represented thereby will be made by the Trustee or the Custodian, at the
direction of the Trustee, in accordance with instructions given by the Holder
thereof as required by Section 2.06 hereof.
(c) Temporary Global Notes. Notes offered and sold to Non-U.S. Persons
in reliance on Regulation S will be issued initially in the form of the
Regulation S Temporary Global Note, which will be deposited on behalf of the
purchasers of the Notes represented thereby with the Trustee, at its Dallas,
Texas office, as custodian for the Depositary, and registered in the name of the
Depositary or the nominee of the Depositary for the accounts of designated
agents holding on behalf of Euroclear or Clearstream Bank, duly executed by the
Company and authenticated by the Trustee as hereinafter provided. The Restricted
Period will be terminated upon the receipt by the Trustee of:
(1) a written certificate from the Depositary, together with
copies of certificates from Euroclear and Clearstream Bank certifying
that they have received certification of non-United States beneficial
ownership of 100% of the aggregate principal amount of the Regulation S
Temporary Global Note (except to the extent of any beneficial owners
thereof who acquired an interest therein during the Restricted Period
pursuant to another exemption from registration under the Securities
Act and who will take delivery of a beneficial ownership interest in a
144A Global Note or an IAI Global Note bearing a Private Placement
Legend, all as contemplated by Section 2.06(b) hereof); and
25
(2) an Officers' Certificate from the Company, as required
pursuant to Section 12.04 hereof;
Following the termination of the Restricted Period, beneficial
interests in the Regulation S Temporary Global Note will be exchanged for
beneficial interests in Regulation S Permanent Global Notes pursuant to the
Applicable Procedures. Simultaneously with the authentication of Regulation S
Permanent Global Notes, the Trustee will cancel the Regulation S Temporary
Global Note. The aggregate principal amount of the Regulation S Temporary Global
Note and the Regulation S Permanent Global Notes may from time to time be
increased or decreased by adjustments made on the records of the Trustee and the
Depositary or its nominee, as the case may be, in connection with transfers of
interest as hereinafter provided.
(d) Euroclear and Clearstream Procedures Applicable. The provisions of
the "Operating Procedures of the Euroclear System" and "Terms and Conditions
Governing Use of Euroclear" and the "General Terms and Conditions of Clearstream
Banking" and "Customer Handbook" of Clearstream will be applicable to transfers
of beneficial interests in the Regulation S Temporary Global Note and the
Regulation S Permanent Global Notes that are held by Participants through
Euroclear or Clearstream.
Section 2.02 Execution and Authentication.
Two Officers must sign the Notes for or on behalf of the Company by
manual or facsimile signature.
If an Officer whose signature is on a Note no longer holds that office
at the time a Note is authenticated, the Note will nevertheless be valid.
A Note will not be entitled to any benefit under this Indenture or be
valid until authenticated by the manual signature of the Trustee. Such signature
will be conclusive evidence that the Note has been authenticated under this
Indenture.
The Trustee will, upon receipt of a written order of the Company signed
by two Officers (an "Authentication Order"), authenticate Notes for original
issue up to an aggregate principal amount set forth in such Authentication
Order. The aggregate principal amount of Notes outstanding at any time may not
exceed the aggregate amount of Notes authenticated for original issue pursuant
to all the Authentication Orders issued by the Company except as provided in
Section 2.07 hereof.
The Trustee may appoint an authenticating agent acceptable to the
Company to authenticate Notes. An authenticating agent may authenticate Notes
whenever the Trustee may do so. Each reference in this Indenture to
authentication by the Trustee includes authentication by such agent. An
authenticating agent has the same rights as an Agent to deal with Holders, the
Company, any Guarantor or any Affiliate of the Company or any Guarantor.
Section 2.03 Registrar, Paying Agent, Depositary and Custodian.
The Company will maintain an office or agency where Notes may be
presented for registration of transfer or for exchange ("Registrar") and an
office or agency where Notes may be presented for payment ("Paying Agent"). The
Registrar will keep a register of the Notes and of their transfer and exchange.
The Company may appoint one or more co-registrars and one or more additional
paying agents. The term "Registrar" includes any co-registrar and the term
"Paying Agent" includes any additional paying agent. The Company may change any
Paying Agent or Registrar without notice to any Holder. The Company will notify
the Trustee in writing of the name and address of any Agent not a party to this
Indenture. If
26
the Company fails to appoint or maintain another entity as Registrar or Paying
Agent, the Trustee shall act as such. The Company or any of its Domestic
Subsidiaries may act as Paying Agent or Registrar.
The Company initially appoints The Depository Trust Company ("DTC") to
act as Depositary with respect to the Global Notes.
The Company initially appoints the Trustee to act as the Registrar and
Paying Agent and to act as Custodian with respect to the Global Notes.
Section 2.04 Paying Agent to Hold Money in Trust.
The Company will require each Paying Agent other than the Trustee to
agree in writing that the Paying Agent will hold in trust for the benefit of
Holders or the Trustee all money held by the Paying Agent for the payment of
principal of, or premium, if any, interest or Additional Interest, if any, on
the Notes, and will notify the Trustee of any default by the Company in making
any such payment. While any such default continues, the Trustee may require a
Paying Agent to pay all money held by it to the Trustee. The Company at any time
may require a Paying Agent to pay all money held by it to the Trustee. Upon
payment over to the Trustee, the Paying Agent (if other than the Company or any
of its Domestic Subsidiaries) will have no further liability for the money. If
the Company or any such Subsidiary acts as Paying Agent, it will segregate and
hold in a separate trust fund for the benefit of the Holders all money held by
it as Paying Agent. Upon any bankruptcy or reorganization proceedings relating
to the Company, the Trustee will serve as Paying Agent for the Notes. Each
Paying Agent shall otherwise comply with TIA Section 317(b).
Section 2.05 Holder Lists.
The Trustee will preserve in as current a form as is reasonably
practicable the most recent list available to it of the names and addresses of
all Holders and shall otherwise comply with TIA Section 312(a). If the Trustee
is not the Registrar, the Company will furnish to the Trustee at least five
Business Days before each interest payment date and at such other times as the
Trustee may request in writing, a list in such form and as of such date as the
Trustee may reasonably require of the names and addresses of the Holders of
Notes and the Company shall otherwise comply with TIA Section 312(a).
Section 2.06 Transfer and Exchange.
(a) Transfer and Exchange of Global Notes. A Global Note may not be
transferred as a whole except by the Depositary to a nominee of the Depositary,
by a nominee of the Depositary to the Depositary or to another nominee of the
Depositary, or by the Depositary or any such nominee to a successor Depositary
or a nominee of such successor Depositary. A Global Note will be exchanged by
the Company for Definitive Notes only if:
(1) the Company delivers to the Trustee notice from the
Depositary that it is unwilling or unable to continue to act as
Depositary or that it is no longer a clearing agency registered under
the Exchange Act and, in either case, a successor Depositary is not
appointed by the Company within 90 days after the date of such notice
from the Depositary;
(2) an Event of Default has occurred with respect to the Notes
and is continuing and the Registrar has received a request from the
Depositary to issue Definitive Notes in lieu of all or a portion of the
Global Notes (in which case the Company shall deliver Definitive Notes
within 30 days of such request);
27
(3) in the case of a Regulation S Global Note, Euroclear or
Clearstream, as the case may be, (A) is closed for business for a
continuous period of 14 days (other than by reason of statutory or
other holidays), or (B) announces an intention permanently to cease
business or does in fact do so; provided, however, that Definitive
Notes shall only be issued in exchange for or in lieu of such
Regulation S Global Note; or
(4) the Company in its sole discretion determines that the
Global Notes (in whole but not in part) should be exchanged for
Definitive Notes and delivers a written notice to such effect to the
Trustee; provided that in no event shall the Regulation S Temporary
Global Note be exchanged by the Company for Definitive Notes prior to
(x) the expiration of the Restricted Period and (y) the receipt by the
Registrar of any certificates required pursuant to Rule
903(b)(3)(ii)(B) under the Securities Act.
Upon the occurrence of any of the preceding events in (1), (2), (3) or
(4) above, Definitive Notes shall be issued in such names as the Depositary
shall instruct the Trustee in exchange for the beneficial interests in the
Global Notes so exchanged. Global Notes also may be exchanged or replaced, in
whole or in part, as provided in Sections 2.07 and 2.10 hereof. Every Note
authenticated and delivered in exchange for, or in lieu of, a Global Note or any
portion thereof, pursuant to this Section 2.06 or Section 2.07 or 2.10 hereof,
shall be authenticated and delivered in the form of, and shall be, a Global
Note, except as provided in the second sentence of this Section 2.06(a). A
Global Note may not be transferred or exchanged for another Note, and beneficial
interests in a Global Note shall not be exchanged in whole or in part for
Definitive Notes, other than as provided in this Section 2.06(a), however,
beneficial interests in a Global Note may be transferred and exchanged as
provided in Section 2.06(b), (c) or (f) hereof.
(b) Transfer and Exchange of Beneficial Interests in the Global Notes.
The transfer and exchange of beneficial interests in the Global Notes will be
effected through the Depositary, in accordance with the provisions of this
Indenture and the Applicable Procedures. Beneficial interests in the Restricted
Global Notes will be subject to restrictions on transfer comparable to those set
forth herein to the extent required by the Securities Act. Transfers of
beneficial interests in the Global Notes also will require compliance with
either subparagraph (1) or (2) below, as applicable, as well as one or more of
the other following subparagraphs, as applicable:
(1) Transfer of Beneficial Interests in the Same Global Note.
Beneficial interests in any Restricted Global Note may be transferred
to Persons who take delivery thereof in the form of a beneficial
interest in the same Restricted Global Note in accordance with the
transfer restrictions set forth in the Private Placement Legend;
provided, however, that prior to the expiration of the Restricted
Period, transfers of beneficial interests in the Regulation S Temporary
Global Note may not be made to a U.S. Person or for the account or
benefit of a U.S. Person (other than an Initial Purchaser). Beneficial
interests in any Unrestricted Global Note may be transferred to Persons
who take delivery thereof in the form of a beneficial interest in an
Unrestricted Global Note. No written orders or instructions shall be
required to be delivered to the Registrar to effect the transfers
described in this Section 2.06(b)(1).
(2) All Other Transfers and Exchanges of Beneficial Interests
in Global Notes. In connection with all transfers and exchanges of
beneficial interests that are not subject to Section 2.06(b)(1) above,
the transferor of such beneficial interest must deliver to the
Registrar either:
(A) both:
(i) a written order from a Participant or an
Indirect Participant given to the Depositary in
accordance with the Applicable Procedures directing
28
the Depositary to credit or cause to be credited a
beneficial interest in another Global Note in an
amount equal to the beneficial interest to be
transferred or exchanged; and
(ii) instructions given in accordance with
the Applicable Procedures containing information
regarding the Participant account to be credited with
such increase; or
(B) in the case of a transfer of a beneficial
interest in a Global Note to a Person that must take delivery
thereof in the form of a Definitive Note because (1) the
transferee is a QIB and the Rule 144A Global Note has been
exchanged for Definitive Notes pursuant to Section 2.06(a),
(2) the transferee is a Non-U.S. Person in an offshore
transaction in accordance with Rule 903 or Rule 904 and the
Regulation S Permanent Global Note has been exchanged for
Definitive Notes pursuant to Section 2.06(a), (3) the
transferee is an Institutional Accredited Investor and the IAI
Global Note has been exchanged for Definitive Notes pursuant
to Section 2.06(a) or (4) the transferee would have taken
delivery thereof in the form of an Unrestricted Global Note
but for the fact that such Global Note has been exchanged for
Definitive Notes pursuant to Section 2.06(a); or in the case
of an exchange of a beneficial interest in a Restricted Global
Note pursuant to the Exchange Offer by a Person that would
have taken delivery thereof in the form of an Unrestricted
Global Note but for the fact that such Global Note has not
been issued or has been exchanged for Definitive Notes
pursuant to Section 2.06(a), both:
(i) a written order from a Participant or an
Indirect Participant given to the Depositary in
accordance with the Applicable Procedures directing
the Depositary to cause to be issued a Definitive
Note in an amount equal to the beneficial interest to
be transferred or exchanged; and
(ii) instructions given by the Depositary to
the Registrar containing information regarding the
Person in whose name such Definitive Note shall be
registered to effect the transfer or exchange
referred to in (1) above; provided that in no event
shall Definitive Notes be issued upon the transfer or
exchange of beneficial interests in the Regulation S
Temporary Global Note prior to (A) the expiration of
the Restricted Period and (B) the receipt by the
Registrar of any certificates required pursuant to
Rule 903 under the Securities Act.
Upon consummation of an Exchange Offer by the Company
in accordance with Section 2.06(f) hereof, the requirements of
this Section 2.06(b)(2) shall be deemed to have been satisfied
upon receipt by the Registrar of the instructions contained in
the Letter of Transmittal delivered by the Holder of such
beneficial interests in the Restricted Global Notes. Upon
satisfaction of all of the requirements for transfer or
exchange of beneficial interests in Global Notes contained in
this Indenture and the Notes or otherwise applicable under the
Securities Act, the Trustee shall adjust the principal amount
of the relevant Global Note(s) pursuant to Section 2.06(h)
hereof.
(3) Transfer of Beneficial Interests to Another Restricted
Global Note. A beneficial interest in any Restricted Global Note may be
transferred to a Person who takes delivery thereof in the form of a
beneficial interest in another Restricted Global Note if the transfer
complies with the requirements of Section 2.06(b)(2) above and the
Registrar receives the following:
29
(A) if the transferee will take delivery in the form
of a beneficial interest in the 144A Global Note, then the
transferor must deliver a certificate in the form of Exhibit B
hereto, including the certifications in item (1) thereof;
(B) if the transferee will take delivery in the form
of a beneficial interest in the Regulation S Temporary Global
Note or the Regulation S Global Note, then the transferor must
deliver a certificate in the form of Exhibit B hereto,
including the certifications in item (2) thereof; and
(C) if the transferee is the Company or will take
delivery in the form of a beneficial interest in the IAI
Global Note, then the transferor must deliver a certificate in
the form of Exhibit B hereto, including the certifications and
certificates required by item (3) thereof, if applicable.
(4) Transfer and Exchange of Beneficial Interests in a
Restricted Global Note for Beneficial Interests in an Unrestricted
Global Note. A beneficial interest in any Restricted Global Note may be
exchanged by any holder thereof for a beneficial interest in an
Unrestricted Global Note or transferred to a Person who takes delivery
thereof in the form of a beneficial interest in an Unrestricted Global
Note if the exchange or transfer complies with the requirements of
Section 2.06(b)(2) above and:
(A) such exchange or transfer is effected pursuant to
the Exchange Offer in accordance with the Registration Rights
Agreement and the holder of the beneficial interest to be
transferred, in the case of an exchange, or the transferee, in
the case of a transfer, certifies in the applicable Letter of
Transmittal that (i) such holder is not a Broker-Dealer; (ii)
any Exchange Notes to be received by such holder will be
acquired in the ordinary course of its business; (iii) such
holder has no arrangement or understanding with any Person to
participate in the distribution of the Notes or the Exchange
Notes; (iv) such holder is not an "affiliate" (as defined in
Rule 405 under the Securities Act) of the Company or any
Guarantor, 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 (v) such holder
is not engaged in, and does not intend to engage in, the
distribution of the Exchange Notes;
(B) such transfer is effected pursuant to the Shelf
Registration Statement in accordance with the Registration
Rights Agreement;
(C) such transfer is effected by a Broker-Dealer
pursuant to the Exchange Offer Registration Statement in
accordance with the Registration Rights Agreement; or
(D) the Registrar receives the following:
(i) if the holder of such beneficial
interest in a Restricted Global Note proposes to
exchange such beneficial interest for a beneficial
interest in an Unrestricted Global Note, a
certificate from such holder in the form of Exhibit C
hereto, including the certifications in item (1)(a)
thereof; or
(ii) if the holder of such beneficial
interest in a Restricted Global Note proposes to
transfer such beneficial interest to a Person who
shall take delivery thereof in the form of a
beneficial interest in an Unrestricted Global
30
Note, a certificate from such holder in the form of
Exhibit B hereto, including the certifications in
item (4) thereof;
and, in each such case set forth in this subparagraph (D), if
the Registrar so requests or if the Applicable Procedures so
require, an Opinion of Counsel in form reasonably acceptable
to the Registrar and the Company to the effect that such
exchange or transfer is in compliance with the Securities Act
and that the restrictions on transfer contained herein and in
the Private Placement Legend are no longer required in order
to maintain compliance with the Securities Act.
If any such transfer is effected pursuant to subparagraph (B) or (D)
above at a time when an Unrestricted Global Note has not yet been issued, the
Company shall issue and, upon receipt of an Authentication Order in accordance
with Section 2.02 hereof, the Trustee shall authenticate one or more
Unrestricted Global Notes in an aggregate principal amount equal to the
aggregate principal amount of beneficial interests transferred pursuant to
subparagraph (B) or (D) above.
Beneficial interests in an Unrestricted Global Note cannot be exchanged
for, or transferred to Persons who take delivery thereof in the form of, a
beneficial interest in a Restricted Global Note.
(c) Transfer of Beneficial Interests for Definitive Notes.
(1) Beneficial Interests in Restricted Global Notes to
Restricted Definitive Notes. If any holder of a beneficial interest in
a Restricted Global Note proposes to transfer such beneficial interest
to a Person who takes delivery thereof in the form of a Restricted
Definitive Note in accordance with Section 2.06(b)(2)(B), then, upon
receipt by the Registrar of the following documentation:
(A) if such beneficial interest is being transferred
to a QIB in accordance with Rule 144A, a certificate to the
effect set forth in Exhibit B hereto, including the
certifications in item (1) thereof;
(B) if such beneficial interest is being transferred
to a Non-U.S. Person in an offshore transaction in accordance
with Rule 903 or Rule 904, a certificate to the effect set
forth in Exhibit B hereto, including the certifications in
item (2) thereof;
(C) if such beneficial interest is being transferred
to an Institutional Accredited Investor in reliance on an
exemption from the registration requirements of the Securities
Act other than those listed in subparagraphs (A) and (B)
above, a certificate to the effect set forth in Exhibit B
hereto, including the certifications, certificates and Opinion
of Counsel required by item (3) thereof, if applicable; or
(D) if such beneficial interest is being transferred
to the Company, a certificate to the effect set forth in
Exhibit B hereto, including the certifications in item (3)(a)
thereof,
the Trustee shall cause the aggregate principal amount of the applicable Global
Note to be reduced accordingly pursuant to Section 2.06(h) hereof, and the
Company shall execute and the Trustee shall authenticate and deliver to the
Person designated in the instructions a Definitive Note in the appropriate
principal amount. Any Definitive Note issued in exchange for a beneficial
interest in a Restricted Global Note pursuant to this Section 2.06(c) shall be
registered in such name or names and in such authorized denomination or
denominations as the holder of such beneficial interest shall instruct the
Registrar
31
through instructions from the Depositary and the Participant or Indirect
Participant. The Trustee shall deliver such Definitive Notes to the Persons in
whose names such Notes are so registered.
(2) Beneficial Interests in Regulation S Temporary Global Note
to Definitive Notes. Notwithstanding Sections 2.06(c)(1)(B) hereof, a
beneficial interest in the Regulation S Temporary Global Note may not
be transferred to a Person who takes delivery thereof in the form of a
Definitive Note prior to (A) the expiration of the Restricted Period
and (B) the receipt by the Registrar of any certificates required
pursuant to Rule 903(b)(3)(ii)(B) under the Securities Act, except in
the case of a transfer pursuant to an exemption from the registration
requirements of the Securities Act other than Rule 903 or Rule 904.
(3) Beneficial Interests in Restricted Global Notes to
Unrestricted Definitive Notes. A holder of a beneficial interest in a
Restricted Global Note may exchange such beneficial interest for an
Unrestricted Definitive Note or may transfer such beneficial interest
to a Person who takes delivery thereof in the form of an Unrestricted
Definitive Note in accordance with Section 2.06(b)(2)(B) only if:
(A) such exchange or transfer is effected pursuant to
the Exchange Offer in accordance with the Registration Rights
Agreement and the holder of such beneficial interest, in the
case of an exchange, or the transferee, in the case of a
transfer, certifies in the applicable Letter of Transmittal
that (i) such holder is not a Broker-Dealer; (ii) any Exchange
Notes to be received by such holder will be acquired in the
ordinary course of its business; (iii) such holder has no
arrangement or understanding with any Person to participate in
the distribution of the Notes or the Exchange Notes; (iv) such
holder is not an "affiliate" (as defined in Rule 405 under the
Securities Act) of the Company or any Guarantor, 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 (v) such holder is not engaged in, and
does not intend to engage in, the distribution of the Exchange
Notes;
(B) such transfer is effected pursuant to the Shelf
Registration Statement in accordance with the Registration
Rights Agreement;
(C) such transfer is effected by a Broker-Dealer
pursuant to the Exchange Offer Registration Statement in
accordance with the Registration Rights Agreement; or
(D) if the holder of such beneficial interest in a
Restricted Global Note proposes to transfer such beneficial
interest to a Person who shall take delivery thereof in the
form of an Unrestricted Definitive Note, the Registrar
receives a certificate from such holder in the form of Exhibit
B hereto, including the certifications in item (4) thereof,
and, if the Registrar so requests or if the Applicable
Procedures so require, an Opinion of Counsel in form
reasonably acceptable to the Registrar to the effect that such
transfer is in compliance with the Securities Act and that the
restrictions on transfer contained herein and in the Private
Placement Legend are no longer required in order to maintain
compliance with the Securities Act.
Any Definitive Note issued in exchange for a beneficial
interest pursuant to this Section 2.06(c)(3) will be registered in such
name or names and in such authorized denomination or denominations as
the holder of such beneficial interest requests through instructions to
the Registrar from or through the Depositary and the Participant or
Indirect Participant. The Trustee will deliver such Definitive Notes to
the Persons in whose names such Notes are so registered.
32
Any Definitive Note issued in exchange for a beneficial interest
pursuant to this Section 2.06(c)(3) will not bear the Private Placement
Legend.
(d) Transfer and Exchange of Definitive Notes for Beneficial Interests
in a Global Note.
(1) Restricted Definitive Notes to Beneficial Interests in
Restricted Global Notes. If any Holder of a Restricted Definitive Note
proposes to exchange such Note for a beneficial interest in a
Restricted Global Note or to transfer such Restricted Definitive Notes
to a Person who takes delivery thereof in the form of a beneficial
interest in a Restricted Global Note, then, upon receipt by the
Registrar of the following documentation:
(A) if the Holder of such Restricted Definitive Note
proposes to exchange such Note for a beneficial interest in a
Restricted Global Note, a certificate from such Holder in the
form of Exhibit C hereto, including the certifications in item
(2) thereof;
(B) if such Restricted Definitive Note is being
transferred to a QIB in accordance with Rule 144A, a
certificate to the effect set forth in Exhibit B hereto,
including the certifications in item (1) thereof;
(C) if such Restricted Definitive Note is being
transferred to a Non-U.S. Person in an offshore transaction in
accordance with Rule 903 or Rule 904, a certificate to the
effect set forth in Exhibit B hereto, including the
certifications in item (2) thereof; or
(D) if such Restricted Definitive Note is being
transferred to an Institutional Accredited Investor in
reliance on an exemption from the registration requirements of
the Securities Act other than those listed in subparagraphs
(B) through (C) above, a certificate to the effect set forth
in Exhibit B hereto, including the certifications,
certificates and Opinions of Counsel required by item (3)
thereof, if applicable;
the Trustee will cancel the Restricted Definitive Note, increase or
cause to be increased the aggregate principal amount of, in the case of
clause (A) above, the appropriate Restricted Global Note, in the case
of clause (B) above, the 144A Global Note, in the case of clause (C)
above, the Regulation S Global Note, and in the cases of clause (D),
the IAI Global Note.
(2) Restricted Definitive Notes to Beneficial Interests in
Unrestricted Global Notes. A Holder of a Restricted Definitive Note may
exchange such Note for a beneficial interest in an Unrestricted Global
Note or transfer such Restricted Definitive Note to a Person who takes
delivery thereof in the form of a beneficial interest in an
Unrestricted Global Note only if:
(A) such exchange or transfer is effected pursuant to
the Exchange Offer in accordance with the Registration Rights
Agreement and the Holder, in the case of an exchange, or the
transferee, in the case of a transfer, certifies in the
applicable Letter of Transmittal that (i) such holder is not a
Broker-Dealer; (ii) any Exchange Notes to be received by such
holder will be acquired in the ordinary course of its
business; (iii) such holder has no arrangement or
understanding with any Person to participate in the
distribution of the Notes or the Exchange Notes; (iv) such
holder is not an "affiliate" (as defined in Rule 405 under the
Securities Act) of the Company or any Guarantor, 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 (v) such holder is not engaged in, and
does not intend to engage in, the distribution of the Exchange
Notes;
33
(B) such transfer is effected pursuant to the Shelf
Registration Statement in accordance with the Registration
Rights Agreement;
(C) such transfer is effected by a Broker-Dealer
pursuant to the Exchange Offer Registration Statement in
accordance with the Registration Rights Agreement; or
(D) the Registrar receives the following:
(i) if the Holder of such Restricted
Definitive Notes proposes to exchange such Notes for
a beneficial interest in the Unrestricted Global
Note, a certificate from such Holder in the form of
Exhibit C hereto, including the certifications in
item (1)(b) thereof; or
(ii) if the Holder of such Restricted
Definitive Notes proposes to transfer such Notes to a
Person who shall take delivery thereof in the form of
a beneficial interest in the Unrestricted Global
Note, a certificate from such Holder in the form of
Exhibit B hereto, including the certifications in
item (4) thereof;
and, in each such case set forth in this subparagraph (D), if
the Company or the Registrar so requests or if the Applicable
Procedures so require, an Opinion of Counsel in form
reasonably acceptable to the Registrar and the Company to the
effect that such exchange or transfer is in compliance with
the Securities Act and that the restrictions on transfer
contained herein and in the Private Placement Legend are no
longer required in order to maintain compliance with the
Securities Act.
Upon satisfaction of the conditions of any of the
subparagraphs in this Section 2.06(d)(2), the Trustee will cancel the
Restricted Definitive Notes and increase or cause to be increased the
aggregate principal amount of the Unrestricted Global Note.
(3) Unrestricted Definitive Notes to Beneficial Interests in
Unrestricted Global Notes. A Holder of an Unrestricted Definitive Note
may exchange such Note for a beneficial interest in an Unrestricted
Global Note or transfer such Unrestricted Definitive Notes to a Person
who takes delivery thereof in the form of a beneficial interest in an
Unrestricted Global Note at any time. Upon receipt of a request for
such an exchange or transfer, the Trustee will cancel the applicable
Unrestricted Definitive Note and increase or cause to be increased the
aggregate principal amount of one of the Unrestricted Global Notes.
If any such exchange or transfer from a Definitive Note to a
beneficial interest is effected pursuant to subparagraphs (2)(B),
(2)(D) or (3) above at a time when an Unrestricted Global Note has not
yet been issued, the Company will issue and, upon receipt of an
Authentication Order in accordance with Section 2.02 hereof, the
Trustee will authenticate one or more Unrestricted Global Notes in an
aggregate principal amount equal to the principal amount of Definitive
Notes so transferred.
(e) Transfer and Exchange of Definitive Notes for Definitive Notes.
Upon request by a Holder of Definitive Notes and such Holder's compliance with
the provisions of this Section 2.06(e), the Registrar will register the transfer
or exchange of Definitive Notes. Prior to such registration of transfer or
exchange, the requesting Holder must present or surrender to the Registrar the
Definitive Notes duly endorsed or accompanied by a written instruction of
transfer in form satisfactory to the Registrar duly executed by such Holder or
by its attorney, duly authorized in writing. In addition, the requesting Holder
34
must provide any additional certifications, documents and information, as
applicable, required pursuant to the following provisions of this Section
2.06(e).
(1) Restricted Definitive Notes to Restricted Definitive
Notes. Any Restricted Definitive Note may be transferred to and
registered in the name of Persons who take delivery thereof in the form
of a Restricted Definitive Note if the Registrar receives the
following:
(A) if the transfer will be made pursuant to Rule
144A under the Securities Act, then the transferor must
deliver a certificate in the form of Exhibit B hereto,
including the certifications in item (1) thereof;
(B) if the transfer will be made pursuant to Rule 903
or Rule 904, then the transferor must deliver a certificate in
the form of Exhibit B hereto, including the certifications in
item (2) thereof; and
(C) if the transfer will be made pursuant to any
other exemption from the registration requirements of the
Securities Act, then the transferor must deliver a certificate
in the form of Exhibit B hereto, including the certifications,
certificates and Opinion of Counsel required by item (3)
thereof, if applicable.
(2) Restricted Definitive Notes to Unrestricted Definitive
Notes. Any Restricted Definitive Note may be exchanged by the Holder
thereof for an Unrestricted Definitive Note or transferred to a Person
or Persons who take delivery thereof in the form of an Unrestricted
Definitive Note if:
(A) such exchange or transfer is effected pursuant to
the Exchange Offer in accordance with the Registration Rights
Agreement and the Holder, in the case of an exchange, or the
transferee, in the case of a transfer, certifies in the
applicable Letter of Transmittal that (i) such holder is not a
Broker-Dealer; (ii) any Exchange Notes to be received by such
holder will be acquired in the ordinary course of its
business; (iii) such holder has no arrangement or
understanding with any Person to participate in the
distribution of the Notes or the Exchange Notes; (iv) such
holder is not an "affiliate" (as defined in Rule 405 under the
Securities Act) of the Company or any Guarantor, 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 (v) such holder is not engaged in, and
does not intend to engage in, the distribution of the Exchange
Notes;
(B) any such transfer is effected pursuant to the
Shelf Registration Statement in accordance with the
Registration Rights Agreement;
(C) any such transfer is effected by a Broker-Dealer
pursuant to the Exchange Offer Registration Statement in
accordance with the Registration Rights Agreement; or
(D) the Registrar receives the following:
(i) if the Holder of such Restricted
Definitive Notes proposes to exchange such Notes for
an Unrestricted Definitive Note, a certificate from
such Holder in the form of Exhibit C hereto,
including the certifications in item (1)(c) thereof;
or
35
(ii) if the Holder of such Restricted
Definitive Notes proposes to transfer such Notes to a
Person who shall take delivery thereof in the form of
an Unrestricted Definitive Note, a certificate from
such Holder in the form of Exhibit B hereto,
including the certifications in item (4) thereof;
and, in each such case set forth in this subparagraph (D), if
the Registrar so requests, an Opinion of Counsel in form
reasonably acceptable to the Registrar and the Company to the
effect that such exchange or transfer is in compliance with
the Securities Act and that the restrictions on transfer
contained herein and in the Private Placement Legend are no
longer required in order to maintain compliance with the
Securities Act.
(3) Unrestricted Definitive Notes to Unrestricted Definitive
Notes. A Holder of Unrestricted Definitive Notes may transfer such
Notes to a Person who takes delivery thereof in the form of an
Unrestricted Definitive Note. Upon receipt of a request to register
such a transfer, the Registrar shall register the Unrestricted
Definitive Notes pursuant to the instructions from the Holder thereof.
(f) Exchange Offer. Upon the consummation of the Exchange Offer in
accordance with the Registration Rights Agreement, the Company will issue and,
upon receipt of an Authentication Order in accordance with Section 2.02 hereof,
the Trustee will authenticate:
(1) one or more Unrestricted Global Notes in an aggregate
principal amount equal to the principal amount of the beneficial
interests in the Restricted Global Notes accepted for exchange in the
Exchange Offer by Persons that certify in the applicable Letters of
Transmittal that (i) any Exchange Notes received by such Person will be
acquired in the ordinary course of its business, (ii) such Person has
no arrangements or understanding with any other Person to participate
in the distribution of the Initial Notes or the Exchange Notes within
the meaning of the Securities Act, (iii) such Person is not an
"affiliate," as defined in Rule 405 of the Securities Act, of the
Company or any Guarantor or if it is an affiliate, such Person will
comply with the registration and prospectus delivery requirements of
the Securities Act to the extent applicable, (iv) if such Person is not
a Broker-Dealer, it is not engaged in, and does not intend to engage
in, the distribution of the Exchange Notes, (v) if such Person is a
Broker-Dealer, it will receive Exchange Notes for its own account in
exchange for Initial Notes that were acquired as a result of
market-making activities or other trading activities and that it will
be required to acknowledge that it will deliver a prospectus in
connection with any resale of such Exchange Notes, (vi) if such Person
is a Broker-Dealer, it did not purchase the Initial Notes to be
exchanged for the Exchange Notes from the Company or a Guarantor, and
(vii) such Person is not acting on behalf of any other Person who could
not truthfully and completely make the foregoing representations; and
(2) Unrestricted Definitive Notes in an aggregate principal
amount equal to the principal amount of the Restricted Definitive Notes
accepted for exchange in the Exchange Offer.
Concurrently with the issuance of such Notes under clause (1),
the Trustee will cause the aggregate principal amount of the applicable
Restricted Global Notes to be reduced accordingly.
(g) Legends. The following legends will appear on the face of all
Global Notes and Definitive Notes issued under this Indenture unless
specifically stated otherwise in the applicable provisions of this Indenture.
36
(1) Private Placement Legend.
(A) Except as permitted by subparagraph (B) below, each Global
Note and each Definitive Note (and all Notes issued in exchange
therefor or in lieu thereof) shall bear the legend in substantially the
following form:
"THIS NOTE (OR ITS PREDECESSOR) WAS ORIGINALLY ISSUED IN A TRANSACTION EXEMPT
FROM REGISTRATION UNDER THE UNITED STATES SECURITIES ACT OF 1933 (THE
"SECURITIES ACT"), AND THIS NOTE MAY NOT BE OFFERED, SOLD OR OTHERWISE
TRANSFERRED IN THE ABSENCE OF SUCH REGISTRATION OR AN APPLICABLE EXEMPTION
THEREFROM. EACH PURCHASER OF THIS NOTE IS HEREBY NOTIFIED THAT THE SELLER OF
THIS NOTE MAY BE RELYING ON THE EXEMPTION FROM THE PROVISIONS OF SECTION 5 OF
THE SECURITIES ACT PROVIDED BY RULE 144A THEREUNDER.
THE HOLDER OF THIS NOTE AGREES FOR THE BENEFIT OF WESTLAKE CHEMICAL CORPORATION
(THE "COMPANY") THAT (A) THIS NOTE MAY BE OFFERED, RESOLD, PLEDGED OR OTHERWISE
TRANSFERRED, ONLY (I) TO THE COMPANY, (II) IN THE UNITED STATES TO A PERSON WHOM
THE SELLER REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER (AS DEFINED IN
RULE 144A UNDER THE SECURITIES ACT) IN A TRANSACTION MEETING THE REQUIREMENTS OF
RULE 144A, (III) OUTSIDE THE UNITED STATES IN AN OFFSHORE TRANSACTION IN
ACCORDANCE WITH RULE 904 UNDER THE SECURITIES ACT, (IV) PURSUANT TO AN EXEMPTION
FROM REGISTRATION UNDER THE SECURITIES ACT PROVIDED BY RULE 144 THEREUNDER (IF
AVAILABLE), (V) IN THE UNITED STATES TO AN INSTITUTIONAL "ACCREDITED INVESTOR"
(AS DEFINED IN RULE 501(A)(1), (2), (3) OR (7) UNDER THE SECURITIES ACT), IN A
MINIMUM PRINCIPAL AMOUNT OF NOT LESS THAN $100,000, THAT IS ACQUIRING THIS NOTE
FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF ANOTHER INSTITUTIONAL ACCREDITED
INVESTOR FOR INVESTMENT PURPOSES AND NOT WITH A VIEW TO, OR FOR OFFER OR SALE IN
CONNECTION WITH, ANY DISTRIBUTION THEREOF IN VIOLATION OF THE SECURITIES ACT AND
THAT, PRIOR TO SUCH TRANSFER, FURNISHES (OR HAS FURNISHED ON ITS BEHALF BY A
U.S. BROKER-DEALER) TO THE TRUSTEE A SIGNED LETTER IN THE FORM SET FORTH ON THE
REVERSE HEREOF CONTAINING CERTAIN REPRESENTATIONS AND AGREEMENTS RELATING TO
RESTRICTIONS ON TRANSFER OF THIS NOTE OR (VI) PURSUANT TO AN EFFECTIVE
REGISTRATION STATEMENT UNDER THE SECURITIES ACT, IN EACH OF CASES (I) THROUGH
(VI) IN ACCORDANCE WITH ANY APPLICABLE SECURITIES LAWS OF ANY STATE OF THE
UNITED STATES, AND (B) THE HOLDER WILL, AND EACH SUBSEQUENT HOLDER IS REQUIRED
TO, NOTIFY ANY PURCHASER OF THIS NOTE FROM IT OF THE RESALE RESTRICTIONS
REFERRED TO IN (A) ABOVE. IF CERTIFICATED: IN ADDITION, WITH RESPECT TO ANY
TRANSFER OF THIS NOTE (OTHER THAN A TRANSFER PURSUANT TO CLAUSE (A)(VI) ABOVE),
THE HOLDER WILL DELIVER TO THE COMPANY AND THE TRUSTEE SUCH CERTIFICATES AND
OTHER INFORMATION AND, IN THE CASE OF A TRANSFER PURSUANT TO CLAUSE (A)(IV)
ABOVE, A LEGAL OPINION AS THEY MAY REASONABLY REQUIRE TO CONFIRM THAT THE
TRANSFER BY IT COMPLIES WITH THE FOREGOING RESTRICTIONS."
(B) Notwithstanding the foregoing, any Global Note or
Definitive Note issued pursuant to subparagraphs (b)(4),
(c)(3), (d)(2), (d)(3), (e)(2), (e)(3) or (f) of this Section
2.06 (and all Notes issued in exchange therefor or in lieu
thereof) will not bear the Private Placement Legend.
37
(2) Global Note Legend. Each Global Note will bear a legend in
substantially the following form:
"THIS GLOBAL NOTE IS HELD BY THE DEPOSITARY (AS DEFINED IN THE INDENTURE
GOVERNING THIS NOTE) OR ITS NOMINEE IN CUSTODY FOR THE BENEFIT OF THE BENEFICIAL
OWNERS HEREOF, AND IS NOT TRANSFERABLE TO ANY PERSON UNDER ANY CIRCUMSTANCES
EXCEPT THAT (1) THE TRUSTEE MAY MAKE SUCH NOTATIONS HEREON AS MAY BE REQUIRED
PURSUANT TO SECTION 2.06 OF THE INDENTURE, (2) THIS GLOBAL NOTE MAY BE EXCHANGED
IN WHOLE BUT NOT IN PART PURSUANT TO SECTION 2.06(a) OF THE INDENTURE, (3) THIS
GLOBAL NOTE MAY BE DELIVERED TO THE TRUSTEE FOR CANCELLATION PURSUANT TO SECTION
2.11 OF THE INDENTURE AND (4) THIS GLOBAL NOTE MAY BE TRANSFERRED TO A SUCCESSOR
DEPOSITARY WITH THE PRIOR WRITTEN CONSENT OF THE COMPANY.
UNLESS AND UNTIL IT IS EXCHANGED IN WHOLE OR IN PART FOR NOTES IN DEFINITIVE
FORM, THIS NOTE MAY NOT BE TRANSFERRED EXCEPT AS A WHOLE BY THE DEPOSITARY TO A
NOMINEE OF THE DEPOSITARY OR BY A NOMINEE OF THE DEPOSITARY TO THE DEPOSITARY OR
ANOTHER NOMINEE OF THE DEPOSITARY OR BY THE DEPOSITARY OR ANY SUCH NOMINEE TO A
SUCCESSOR DEPOSITARY OR A NOMINEE OF SUCH SUCCESSOR DEPOSITARY. UNLESS THIS
CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST
COMPANY (55 WATER STREET, NEW YORK, NEW YORK) ("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 SUCH OTHER NAME AS MAY BE
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO
CEDE & CO. OR SUCH OTHER ENTITY AS MAY BE REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN."
(3) Regulation S Temporary Global Note Legend. The Regulation
S Temporary Global Note will bear a legend in substantially the
following form:
"THE RIGHTS ATTACHING TO THIS REGULATION S TEMPORARY GLOBAL NOTE, AND THE
CONDITIONS AND PROCEDURES GOVERNING ITS EXCHANGE FOR CERTIFICATED NOTES, ARE AS
SPECIFIED IN THE INDENTURE (AS DEFINED HEREIN). NEITHER THE HOLDER NOR THE
BENEFICIAL OWNERS OF THIS REGULATION S TEMPORARY GLOBAL NOTE SHALL BE ENTITLED
TO RECEIVE PAYMENT OF INTEREST HEREON."
(h) Cancellation and/or Adjustment of Global Notes. At such time as all
beneficial interests in a particular Global Note have been exchanged for
Definitive Notes in accordance with the second sentence of Section 2.06(a) or a
particular Global Note has been redeemed, repurchased or canceled in whole and
not in part, each such Global Note will be returned to or retained and canceled
by the Trustee in accordance with Section 2.11 hereof. At any time prior to such
cancellation, if any beneficial interest in a Global Note is exchanged for or
transferred to a Person who will take delivery thereof in the form of a
beneficial interest in another Global Note or for Definitive Notes, the
principal amount of Notes represented by such Global Note will be reduced
accordingly and an endorsement will be made on such Global Note by the Trustee
or by the Depositary at the direction of the Trustee to reflect such reduction;
and if the beneficial interest is being exchanged for or transferred to a Person
who will take delivery thereof in the form of a beneficial interest in another
Global Note, such other Global Note will be
38
increased accordingly and an endorsement will be made on such Global Note by the
Trustee or by the Depositary at the direction of the Trustee to reflect such
increase.
(i) General Provisions Relating to Transfers and Exchanges.
(1) To permit registrations of transfers and exchanges, the
Company will execute and the Trustee will authenticate Global Notes and
Definitive Notes upon receipt of an Authentication Order in accordance
with Section 2.02 or at the Registrar's request.
(2) No service charge will be made to a Holder of a Global
Note or to a Holder of a Definitive Note for any registration of
transfer or exchange, but the Company may require payment of a sum
sufficient to cover any transfer tax or similar governmental charge
payable in connection therewith (other than any such transfer taxes or
similar governmental charge payable upon exchange or transfer pursuant
to Sections 2.10, 3.06, 3.09, 4.10, 4.14 and 9.05 hereof).
(3) When Definitive Notes are presented to the Registrar with
the request to register the transfer of such Definitive Notes or to
exchange such Definitive Notes for an equal principal amount of
Definitive Notes of other authorized denominations, the Registrar shall
register the transfer or make the exchange as requested if its
requirements and the requirements of this Indenture for such
transactions are met; provided, however, that the Definitive Notes
presented or surrendered for registration of transfer or exchange shall
be duly endorsed or accompanied by a written instruction of transfer in
form reasonably satisfactory to the Registrar duly executed by the
Holder thereof or by his attorney, duly authorized in writing, on which
instruction the Registrar can rely.
(4) All Global Notes and Definitive Notes issued upon any
registration of transfer or exchange of Global Notes or Definitive
Notes will be the valid obligations of the Company, evidencing the same
debt, and entitled to the same benefits under this Indenture, as the
Global Notes or Definitive Notes surrendered upon such registration of
transfer or exchange.
(5) Neither the Company nor the Registrar will be required:
(A) to register the transfer of or to exchange any
Notes during a period beginning at the opening of business 15
days before the day of any selection of Notes for redemption
under Section 3.02 hereof and ending at the close of business
on the day of selection; or
(B) to register the transfer of or to exchange any
Note selected for redemption in whole or in part, except the
unredeemed portion of any Note being redeemed in part.
(6) Prior to due presentment for the registration of a
transfer of any Note, the Trustee, any Agent, the Company and any
Guarantor may deem and treat the Person in whose name any Note is
registered as the absolute owner of such Note for the purpose of
receiving payment of principal of and interest on such Notes and for
all other purposes, and none of the Trustee, any Agent, the Company or
any Guarantor shall be affected by notice to the contrary.
(7) The Trustee will authenticate Global Notes and Definitive
Notes in accordance with the provisions of Section 2.02 hereof.
39
(8) All certifications, certificates and Opinions of Counsel
required to be submitted to the Registrar pursuant to this Section 2.06
to effect a registration of transfer or exchange may be submitted by
facsimile.
Section 2.07 Replacement Notes.
If any mutilated Note is surrendered to the Trustee or the Company, or
if the Holder of a Note claims that the Note has been destroyed, lost or stolen
and the Trustee and the Company receive evidence to their satisfaction of the
destruction, loss or theft of such Note, the Company will issue and the Trustee,
upon receipt of an Authentication Order, will authenticate a replacement Note if
the Trustee's requirements are met. If required by the Trustee or the Company,
an indemnity bond must be supplied by the Holder that is sufficient in the
judgment of the Trustee and the Company to protect the Company, any Guarantors,
the Trustee, any Agent and any authenticating agent from any loss that any of
them may suffer if a Note is replaced. The Company and the Trustee may charge a
Holder for their expenses in replacing a Note. If, after delivery of such
replacement Note, a protected purchaser of the original Note in lieu of which
such replacement Note was issued presents for payment or registration such
original Note, the Trustee shall be entitled to recover such replacement Note
from the party to whom it was delivered or any party taking therefrom, except a
protected purchaser, and shall be entitled to recover upon the security and
indemnity provided therefor to the extent of any loss, damage, cost or expense
incurred by the Company or the Trustee in connection therewith.
Every replacement Note is an additional obligation of the Company and
will be entitled to all of the benefits of this Indenture equally and
proportionately with all other Notes duly issued hereunder.
Section 2.08 Outstanding Notes.
The Notes outstanding at any time are all the Notes authenticated by
the Trustee except for those canceled by it, those delivered to it for
cancellation, those reductions in the interest in a Global Note effected by the
Trustee in accordance with the provisions hereof, and those described in this
Section 2.08 as not outstanding. Except as set forth in Section 2.09 hereof, a
Note does not cease to be outstanding because the Company or an Affiliate of the
Company holds the Note; provided, however, Notes held by the Company or a
Subsidiary of the Company shall not be deemed to be outstanding for purposes of
Section 3.07(a) hereof.
If a Note is replaced pursuant to Section 2.07 hereof, it ceases to be
outstanding unless the Trustee receives proof satisfactory to it that the
replaced Note is held by a protected purchaser.
If the principal amount of any Note is considered paid under Section
4.01 hereof, it ceases to be outstanding and interest on it ceases to accrue.
If the Paying Agent (other than the Company, a Subsidiary or an
Affiliate of any thereof) holds, on a redemption date or maturity date, money
sufficient to pay Notes payable on that date, then on and after that date such
Notes will be deemed to be no longer outstanding and will cease to accrue
interest.
Section 2.09 Treasury Notes.
In determining whether the Holders of the required principal amount of
Notes have concurred in or consented to any direction, amendment, supplement,
waiver or consent, Notes owned by the Company, a Guarantor or any other obligor
upon the Notes or any Affiliate of the Company, of a Guarantor or of such other
obligor shall be disregarded and shall be considered as though not outstanding,
except that for the purposes of determining whether the Trustee will be
protected in relying on any such direction,
40
amendment, supplement, waiver or consent, only Notes that the Trustee knows are
so owned will be so disregarded.
Section 2.10 Temporary Notes.
Until certificates representing Notes are ready for delivery, the
Company may prepare and the Trustee, upon receipt of an Authentication Order,
will authenticate temporary Notes. Temporary Notes will be substantially in the
form of certificated Notes but may have variations that the Company considers
appropriate for temporary Notes and as may be reasonably acceptable to the
Trustee. Without unreasonable delay, the Company will prepare and the Trustee
will authenticate definitive Notes in exchange for temporary Notes.
Holders of temporary Notes will be entitled to all of the benefits of
this Indenture.
Section 2.11 Cancellation.
The Company at any time may deliver Notes to the Trustee for
cancellation. The Registrar and Paying Agent will forward to the Trustee any
Notes surrendered to them for registration of transfer, exchange or payment. The
Trustee and no one else will cancel all Notes surrendered for registration of
transfer, exchange, payment, redemption, replacement or cancellation and, unless
the Company shall direct in writing that canceled Notes be returned to it, the
Trustee shall thereafter treat and dispose of such canceled Note in accordance
with its document destruction policies. The Company may not issue new Notes to
replace Notes that it has paid or that have been delivered to the Trustee for
cancellation.
Section 2.12 Defaulted Interest.
If the Company defaults in a payment of interest on the Notes, it will
pay the defaulted interest in any lawful manner plus, to the extent lawful,
interest payable on the defaulted interest, to the Persons who are Holders on a
subsequent special record date, in each case at the rate provided in the Notes
and in Section 4.01 hereof. The Company will notify the Trustee in writing of
the amount of defaulted interest proposed to be paid on each Note and the date
of the proposed payment. The Company will fix or cause to be fixed each such
special record date and payment date, provided that no such special record date
may be less than 10 days prior to the related payment date for such defaulted
interest. At least 15 days before the special record date, the Company (or, upon
the written request of the Company, the Trustee in the name and at the expense
of the Company) will mail or cause to be mailed to Holders a notice that states
the special record date, the related payment date and the amount of such
interest to be paid.
ARTICLE 3.
REDEMPTION AND PREPAYMENT
Section 3.01 Notices to Trustee.
If the Company elects to redeem Notes pursuant to the optional
redemption provisions of Section 3.07 hereof, it must furnish to the Trustee, at
least 30 days but not more than 60 days before a redemption date, an Officers'
Certificate setting forth:
(1) the clause of this Indenture pursuant to which the
redemption shall occur;
(2) the redemption date;
41
(3) the principal amount of Notes to be redeemed; and
(4) the redemption price.
Section 3.02 Selection of Notes to Be Redeemed.
If less than all of the Notes are to be redeemed at any time, the
Trustee will select Notes for redemption as follows:
(1) if the Notes are listed on any national securities
exchange, in compliance with the requirements of the principal national
securities exchange on which the Notes are listed; or
(2) if the Notes are not listed on any national securities
exchange, on a pro rata basis, by lot or by such method as the Trustee
shall deem fair and appropriate.
In the event of partial redemption or purchase by lot, the particular
Notes to be redeemed or purchased will be selected, unless otherwise provided
herein, not less than 30 nor more than 60 days prior to the redemption or
purchase date by the Trustee from the outstanding Notes not previously called
for redemption or purchase.
The Trustee will promptly notify the Company in writing of the Notes
selected for redemption and, in the case of any Note selected for partial
redemption, the principal amount thereof to be redeemed. Notes and portions of
Notes selected will be in amounts of $1,000 or whole multiples of $1,000; except
that if all of the Notes of a Holder are to be redeemed, the entire outstanding
amount of Notes held by such Holder, even if not a multiple of $1,000, shall be
redeemed. Except as provided in the preceding sentence, provisions of this
Indenture that apply to Notes called for redemption also apply to portions of
Notes called for redemption or purchase.
Section 3.03 Notice of Redemption.
Subject to the provisions of Section 3.09 hereof, at least 30 days but
not more than 60 days before a redemption date, the Company will mail or cause
to be mailed, by first class mail, a notice of redemption to each Holder whose
Notes are to be redeemed at its registered address, except that redemption
notices may be mailed more than 60 days prior to a redemption date if the notice
is issued in connection with a defeasance of the Notes or a satisfaction and
discharge of this Indenture pursuant to Article 8 or 11 of this Indenture.
The notice will identify the Notes to be redeemed and will state:
(1) the redemption date;
(2) the redemption price;
(3) if any Note is being redeemed in part, the portion of the
principal amount of such Note to be redeemed and that, on or after the
redemption date upon surrender of such Note to the Paying Agent, a new
Note or Notes in principal amount equal to the unredeemed portion will
be issued upon cancellation of the original Note;
(4) the name and address of the Paying Agent;
42
(5) that Notes called for redemption must be surrendered to
the Paying Agent to collect the redemption price;
(6) that, unless the Company defaults in making such
redemption payment, interest on Notes called for redemption ceases to
accrue on and after the redemption date, and the only remaining right
of the Holder of such Notes is to receive payment of the redemption
price upon surrender to the Paying Agent of the Notes redeemed;
(7) the paragraph of the Notes and/or Section of this
Indenture pursuant to which the Notes called for redemption are being
redeemed; and
(8) that no representation is made as to the correctness or
accuracy of the CUSIP number, if any, listed in such notice or printed
on the Notes.
At the Company's request, the Trustee will give the notice of
redemption in the Company's name and at its expense; provided, however, that the
Company has delivered to the Trustee, at least 45 days prior to the redemption
date (unless a shorter time shall be satisfactory to the Trustee), an Officers'
Certificate requesting that the Trustee give such notice and setting forth the
information to be stated in such notice as provided in the preceding paragraph.
Section 3.04 Effect of Notice of Redemption.
Once notice of redemption is mailed in accordance with Section 3.03
hereof, Notes called for redemption become irrevocably due and payable on the
redemption date at the redemption price. A notice of redemption may not be
conditional. Failure to give notice to a Holder or any defect in any notice
shall not affect the validity of any notice to any other Holder.
Section 3.05 Deposit of Redemption or Purchase Price.
Prior to 10:00 a.m., New York City time, on the redemption or purchase
date, the Company will deposit with the Trustee or with the Paying Agent (or, if
the Company or any Domestic Subsidiary is acting as the Paying Agent, segregate
and hold in trust as provided in Section 2.04) money sufficient to pay the
redemption or purchase price, accrued interest and Additional Interest, if any,
on all Notes or portions thereof to be redeemed or purchased on that date. The
Trustee or the Paying Agent will promptly return to the Company any money
deposited with the Trustee or the Paying Agent by the Company in excess of the
amounts necessary to pay the redemption or purchase price, accrued interest and
Additional Interest, if any, on all Notes or portions thereof to be redeemed or
purchased.
If the Company complies with the provisions of the preceding paragraph,
on and after the redemption or purchase date, interest will cease to accrue on
the Notes or the portions of Notes called for redemption or purchase, whether or
not such Notes are presented for payment, and the Holders of such Notes shall
have no further rights with respect to such Notes except for the right to
receive the redemption price, accrued interest and Additional Interest, if any,
upon surrender of such Notes. If a Note is redeemed or purchased on or after an
interest record date but on or prior to the related interest payment date, then
any accrued and unpaid interest shall be paid to the Person in whose name such
Note was registered at the close of business on such record date. If any Note
called for redemption or purchase is not so paid upon surrender for redemption
or purchase because of the failure of the Company to comply with the preceding
paragraph, interest shall be paid on the unpaid principal, from the redemption
or purchase date until such principal is paid, and to the extent lawful on any
interest not paid on such unpaid principal, in each case at the rate provided in
the Notes and in Section 4.01 hereof.
43
Section 3.06 Notes Redeemed or Purchased in Part.
Upon surrender to the Paying Agent of a Note that is redeemed or
purchased in part, the Company will issue and, upon receipt of an Authentication
Order, the Trustee will authenticate for the Holder at the expense of the
Company, a new Note equal in principal amount to the unredeemed or unpurchased
portion of the Note surrendered.
Section 3.07 Optional Redemption.
(a) At any time on or prior to July 15, 2007, the Company may on any
one or more occasions redeem up to 35% of the aggregate principal amount of
Notes issued under this Indenture at a redemption price of 108.75% of the
principal amount thereof, plus accrued and unpaid interest and Additional
Interest, if any, to the redemption date, with the net cash proceeds of one or
more Public Equity Offerings; provided that:
(1) at least 65% of the aggregate principal amount of Notes
issued under this Indenture remains outstanding immediately after the
occurrence of such redemption (excluding Notes held by the Company and
its Subsidiaries); and
(2) the redemption occurs within 60 days of the date of the
closing of such Public Equity Offering.
(b) At any time prior to July 15, 2007, the Company may also redeem all
or a part of the Notes at a redemption price equal to 100% of the principal
amount of Notes redeemed plus the Applicable Premium as of, and accrued and
unpaid interest and Additional Interest, if any, to the redemption date, subject
to the rights of Holders on the relevant record date to receive interest due on
the relevant interest payment date. Except pursuant to Sections 3.07(a) and
3.07(b), the Notes are not redeemable at the Company's option prior to July 15,
2007.
(c) On or after July 15, 2007, the Company may redeem all or a part of
the Notes at the redemption prices (expressed as percentages of principal
amount) set forth below plus accrued and unpaid interest and Additional
Interest, if any, on the Notes redeemed, to the applicable redemption date, if
redeemed during the twelve-month period beginning on July 15 of the years
indicated below, subject to the rights of Holders on the relevant record date to
receive interest on the relevant interest payment date:
Year Percentage
---- ----------
2007................................................ 104.375%
2008................................................ 102.917%
2009................................................ 101.458%
2010 and thereafter................................. 100.000%
(d) Any redemption pursuant to this Section 3.07 shall be made pursuant
to the provisions of Section 3.01 through 3.06 hereof.
(e) In the event that the Company is required to commence a Change of
Control Offer to all Holders to purchase Notes, the procedures set forth in
Section 4.14 shall apply.
Section 3.08 Mandatory Redemption.
The Company is not required to make mandatory redemption or sinking
fund payments with respect to the Notes.
44
Section 3.09 Offer to Purchase by Application of Excess Proceeds.
In the event that, pursuant to Section 4.10 hereof, the Company is
required to commence an offer to all Holders to purchase Notes (an "Asset Sale
Offer"), it will follow the procedures specified below.
The Asset Sale Offer shall be made to all Holders and all holders of
other Pari Passu Indebtedness containing provisions similar to those set forth
in this Indenture with respect to offers to purchase or redeem with the proceeds
of sales of assets. The Asset Sale Offer will remain open for a period of at
least 20 Business Days following its commencement and not more than 30 Business
Days, except to the extent that a longer period is required by applicable law
(the "Offer Period"). No later than five Business Days after the termination of
the Offer Period (the "Purchase Date"), the Company will apply all Excess
Proceeds (the "Offer Amount") to the purchase of Notes and such other Pari Passu
Indebtedness (on a pro rata basis, if applicable) or, if less than the Offer
Amount has been tendered, all Notes and other Indebtedness tendered in response
to the Asset Sale Offer. Payment for any Notes so purchased will be made in the
same manner as redemption payments are made.
If the Purchase Date is on or after an interest record date and on or
before the related interest payment date, any accrued and unpaid interest and
Additional Interest, if any, will be paid to the Person in whose name a Note is
registered at the close of business on such record date, and no additional
interest will be payable to Holders who tender Notes pursuant to the Asset Sale
Offer.
Upon the commencement of an Asset Sale Offer, the Company will send, by
first class mail, a notice to the Trustee and each of the Holders, with a copy
to the Trustee. The notice will contain all instructions and materials necessary
to enable such Holders to tender Notes pursuant to the Asset Sale Offer. The
notice, which will govern the terms of the Asset Sale Offer, will state:
(1) that the Asset Sale Offer is being made pursuant to this
Section 3.09 and Section 4.10 hereof and the length of time the Asset
Sale Offer will remain open;
(2) the Offer Amount, the purchase price and the Purchase
Date;
(3) that any Note not tendered or accepted for payment will
continue to accrue interest;
(4) that, unless the Company defaults in making such payment,
any Note accepted for payment pursuant to the Asset Sale Offer will
cease to accrue interest after the Purchase Date, and the only
remaining right of the Holder of such Note is to receive payment of the
purchase price upon surrender of the Note so purchased to the Company
or the Paying Agent;
(5) that Holders electing to have a Note purchased pursuant to
an Asset Sale Offer may elect to have Notes purchased in integral
multiples of $1,000 only;
(6) that Holders electing to have a Note purchased pursuant to
any Asset Sale 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, or transfer by book-entry transfer, to the Company
or a Paying Agent at the address specified in the notice prior to the
close of business on the third Business Day preceding the Purchase
Date;
(7) that Holders will be entitled to withdraw their election
if the Company or the Paying Agent, as the case may be, 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
45
Note the Holder delivered for purchase and a statement that such Holder
is withdrawing his election to have such Note purchased;
(8) that, if the aggregate principal amount of Notes and other
Pari Passu Indebtedness surrendered by Holders exceeds the Offer
Amount, the Company will select the Notes and other Pari Passu
Indebtedness to be purchased on a pro rata basis based on the principal
amount of Notes and such other Pari Passu Indebtedness 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,
will be purchased); and
(9) that Holders whose Notes are being purchased only in part
will be issued new Notes equal in principal amount to the unpurchased
portion of the Notes surrendered (or transferred by book-entry
transfer), which unpurchased portion must be equal to $1,000 in
principal amount or an integral multiple thereof.
On or before the Purchase Date, the Company will, to the extent lawful,
accept for payment, on a pro rata basis to the extent necessary, the Offer
Amount of Notes or portions thereof and other Pari Passu Indebtedness tendered
pursuant to the Asset Sale Offer, or if less than the Offer Amount has been
tendered, all Notes and other Pari Passu Indebtedness tendered, and will deliver
to the Trustee an Officers' Certificate stating that such Notes or portions
thereof and such other Pari Passu Indebtedness were accepted for payment by the
Company in accordance with the terms of this Section 3.09. The Company or the
Paying Agent, as the case may be, will promptly (but in any case not later than
five Business Days after the Purchase Date) mail or deliver to each tendering
Holder an amount equal to the purchase price of the Notes tendered by such
Holder and accepted by the Company for purchase, and the Company will promptly
issue a new Note, and the Trustee, upon written request from the Company will
authenticate and mail or deliver such new Note to such Holder, in a principal
amount equal to any unpurchased portion of the Note surrendered; provided that
each new Note will be in a principal amount of $1,000 or an integral multiple
thereof. Any Note not so accepted shall be promptly mailed or delivered by the
Company to the Holder thereof.
The Company will comply with the provisions of Rule 14e-1 under the
Exchange Act and any other securities laws and regulations thereunder to the
extent such provisions are applicable in connection with each purchase of Notes
pursuant to an Asset Sale Offer. To the extent that the provisions of any
securities laws or regulations conflict with this Section 3.09 or Section 4.10
hereof, the Company will comply with the applicable securities laws and
regulations and will not be deemed to have breached its obligations under this
Section 3.09 or Section 4.10 hereof by virtue of such conflict.
Other than as specifically provided in this Section 3.09 or 4.10, any
purchase pursuant to this Section 3.09 shall be made pursuant to the provisions
of Sections 3.05 and 3.06 hereof.
Section 3.10 Purchase of Securities.
The Company, any Guarantor and any Affiliate of the Company or any
Guarantor may, subject to applicable law, at any time purchase or otherwise
acquire Notes in the open market or by private agreement. Any such acquisition
shall not operate as or be deemed for any purpose to be a redemption of the
Indebtedness represented by such Notes. Any Notes purchased or acquired by the
Company or a Guarantor shall be delivered to the Trustee and, upon such
delivery, the Indebtedness represented thereby shall be deemed to be satisfied.
Section 2.11 shall apply to all Notes so delivered.
46
ARTICLE 4.
COVENANTS
Section 4.01 Payment of Notes.
The Company will pay or cause to be paid the principal of, and premium,
if any, interest and Additional Interest, if any, on the Notes on the dates and
in the manner provided in the Notes and this Indenture. Principal of, and
premium, if any, interest and Additional Interest, if any, will be considered
paid on the date due if the Paying Agent, if other than the Company or a
Domestic Subsidiary thereof, holds as of 11:00 a.m. Eastern Time on the due date
money deposited by the Company in immediately available funds and designated for
and sufficient to pay all principal of, and premium, if any, interest and
Additional Interest, if any, then due. The Company will pay all Additional
Interest, if any, in the same manner on the dates and in the amounts set forth
in the Registration Rights Agreement.
The Company will pay interest (including post-petition interest in any
proceeding under any Bankruptcy Law) on overdue principal and premium, if any,
at the rate equal to 1% per annum in excess of the then applicable interest rate
on the Notes to the extent lawful; it will pay interest (including post-petition
interest in any proceeding under any Bankruptcy Law) on overdue installments of
interest and Additional Interest, if any (without regard to any applicable grace
period) at the same rate to the extent lawful.
Notwithstanding anything to the contrary contained in this Indenture,
the Company may, to the extent it is required to do so by law and without the
payment of any additional or gross up amounts with respect thereto, deduct or
withhold income or other similar taxes imposed by the laws of the United States,
any state of the United States or the District of Columbia from any payments of
principal, or premium, if any, interest or Additional Interest, if any,
hereunder.
Section 4.02 Maintenance of Office or Agency.
The Company will maintain in the Borough of Manhattan, the City of New
York, an office or agency (which may be an office of the Trustee or an affiliate
of the Trustee, Registrar or the Paying Agent) where Notes may be surrendered
for registration of transfer or for exchange and where notices and demands to or
upon the Company or any Guarantor in respect of the Notes, the Note Guarantees
and this Indenture may be served. The Company will give prompt written notice to
the Trustee of the location, and any change in the location, of such office or
agency. If at any time the Company fails to maintain any such required office or
agency or fails to furnish the Trustee with the address thereof, such
presentations, surrenders, notices and demands may be made or served at the
Corporate Trust Office of the Trustee.
The Company may also from time to time designate one or more other
offices or agencies where the Notes may be presented or surrendered for any or
all such purposes and may from time to time rescind such designations; provided,
however, that no such designation or rescission will in any manner relieve the
Company of its obligation to maintain an office or agency in the Borough of
Manhattan, the City of New York for such purposes. The Company will give prompt
written notice to the Trustee of any such designation or rescission and of any
change in the location of any such other office or agency.
The Company hereby designates the Corporate Trust Office of the Trustee
as one such office or agency of the Company in accordance with Section 2.03
hereof.
47
Section 4.03 Reports.
(a) Prior to consummation of the Exchange Offer, whether or not
required by the rules and regulations of the SEC, so long as any Notes are
outstanding, the Company will furnish to the Trustee, within 15 days after it
would have been required to file the same with the SEC if the Company had been
subject to the periodic reporting requirements of Section 13 or 15(d) of the
Exchange Act and excluding any time periods applicable to "accelerated filers"
under the Exchange Act, quarterly and annual financial statements, including any
notes thereto (and with respect to annual financial statements only, an
auditors' report thereon by a firm of established national reputation), and a
"Management's Discussion and Analysis of Financial Condition and Results of
Operations," both comparable to that which the Company would have been required
to include in a quarterly report on Form 10-Q or an annual report on Form 10-K
if the Company had been subject to those periodic reporting requirements.
(b) Following the consummation of the Exchange Offer, whether or not
required by the rules and regulations of the SEC, so long as any Notes are
outstanding, the Company will file with the SEC (unless the SEC will not accept
such a filing):
(1) all quarterly and annual reports on Forms 10-Q and 10-K
required to be filed with the SEC pursuant to Section 13 or 15(d) of
the Exchange Act; and
(2) all current reports on Form 8-K required to be filed with
the SEC pursuant to Section 13 or 15(d) of the Exchange Act;
in each case, for public availability within the time periods specified in the
rules and regulations applicable to such reports. The Company will not take any
action for the purpose of causing the SEC not to accept any such filings. If the
SEC will not accept the Company's filings for any reason, the Company will post
the reports referred to in clauses (1) and (2) of this Section 4.03(b) on its
website within the time periods that would apply if the Company were required to
file those reports with the SEC. If this Indenture is qualified under the TIA,
but not otherwise, the Company and the Guarantors shall also comply with the
provisions of TIA Section 314(a).
(c) As long as the Company is not subject to the reporting requirements
of Section 13 or 15(d) of the Exchange Act, the Company will furnish to the
Holders and to prospective purchasers of the Notes designated by the Holders,
promptly upon their request, the information required to be delivered pursuant
to Rule 144A(d)(4) under the Securities Act.
(d) The Company intends to file the reports referred to in clauses (1)
and (2) of Section 4.03(b) hereof with the SEC in electronic form pursuant to
Regulation S-T of the SEC using the SEC's Electronic Data Gathering, Analysis
and Retrieval ("EDGAR") system. The Company shall notify the Trustee in the
manner prescribed herein of each such filing. The Trustee is hereby authorized
and directed to access the EDGAR system for purposes of retrieving the reports
so filed. Compliance with the foregoing shall constitute delivery by the Company
of such reports to the Trustee in compliance with the provisions of TIA Section
314(a). The Trustee shall have no duty to search for or obtain any electronic or
other filings that the Company makes with the SEC, regardless of whether such
filings are periodic, supplemental or otherwise. Delivery of the reports,
information and documents to the Trustee pursuant to this Section 4.03 shall be
solely for the purposes of compliance with this Section 4.03 and with TIA
Section 314(a). The Trustee's receipt of such reports, information and documents
shall not constitute notice to it of the content thereof or of any matter
determinable from the content thereof, including the Company's compliance with
any of its covenants hereunder, as to which the Trustee is entitled to rely upon
Officers' Certificates.
48
Section 4.04 Compliance Certificate.
(a) The Company and each Guarantor (to the extent that such Guarantor
is so required under the TIA) shall deliver to the Trustee, within 120 days
after the end of each fiscal year, a statement signed by an Officer of the
Company or such Guarantor, as the case may be, which need not constitute an
Officers' Certificate, complying with TIA Section 314(a)(4) and stating that a
review of the activities of the Company or such Guarantor, as the case may be,
during the preceding fiscal year has been made under the supervision of the
signing Officer with a view to determining whether the Company or such
Guarantor, as the case may be, 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
or such Guarantor, as the case may be, has kept, observed, performed and
fulfilled each and every covenant contained in this Indenture and is not in
default in the performance or observance of any of the terms, provisions and
conditions of this Indenture (or, if a Default or Event of Default has occurred,
describing all such Defaults or Events of Default of which he or she may have
knowledge and what action the Company or such Guarantor, as the case may be, is
taking or proposes to take with respect thereto) and that to the best of his or
her knowledge no event has occurred and remains in existence by reason of which
payments on account of the principal of or interest, if any, on the Notes is
prohibited or if such event has occurred, a description of the event and what
action the Company or such Guarantor, as the case may be, is taking or proposes
to take with respect thereto.
(b) So long as not contrary to the then current recommendations of the
American Institute of Certified Public Accountants, the year-end financial
statements delivered pursuant to Section 4.03(a) above shall be accompanied by a
written statement of the Company's independent public accountants (who shall be
a firm of established national reputation) that in making the examination
necessary for certification of such financial statements, nothing has come to
their attention that would lead them to believe that the Company has violated
any provisions of Article 4 or Article 5 hereof insofar as they relate to
accounting matters or, if any such violation has occurred, specifying the nature
and period of existence thereof, it being understood that such accountants shall
not be liable directly or indirectly to any Person for any failure to obtain
knowledge of any such violation.
(c) So long as any of the Notes are outstanding, the Company will
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 will pay, and will cause each of its Restricted
Subsidiaries to pay, prior to delinquency, all material taxes, assessments, and
governmental levies imposed upon the Company or any of its Restricted
Subsidiaries or any of their respective properties, except such as are contested
in good faith and by appropriate proceedings or where the failure to effect such
payment is not adverse in any material respect to the Holders of the Notes.
Section 4.06 Stay, Extension and Usury Laws.
The Company and each of the Guarantors covenants (to the extent that it
may lawfully do so) that it will not at any time insist upon, plead, or in any
manner whatsoever claim or take the benefit or advantage of, any stay, extension
or usury law wherever enacted, now or at any time hereafter in force, that may
affect the covenants or the performance of this Indenture; and the Company and
each of the Guarantors (to the extent that it may lawfully do so) hereby
expressly waives all benefit or advantage of any such law, and covenants that it
will not, by resort to any such law, hinder, delay or impede the
49
execution of any power herein granted to the Trustee, but will suffer and permit
the execution of every such power as though no such law has been enacted.
Section 4.07 Restricted Payments.
(a) The Company will not, and will not permit any of its Restricted
Subsidiaries to, directly or indirectly:
(1) declare or pay any dividend or make any other distribution
on account of the Company's or any of its Restricted Subsidiaries'
Equity Interests (including, without limitation, any payment in
connection with any merger or consolidation involving the Company or
any of its Restricted Subsidiaries) or to the direct or indirect
holders of the Company's or any of its Restricted Subsidiaries' Equity
Interests in their capacity as such (other than dividends or
distributions payable in Equity Interests (other than Disqualified
Stock) of the Company or to the Company or a Restricted Subsidiary of
the Company);
(2) purchase, redeem or otherwise acquire or retire for value
(including without limitation, in connection with any merger or
consolidation involving the Company) any Equity Interests of the
Company or any direct or indirect parent of the Company;
(3) make any payment on or with respect to, or purchase,
redeem, defease or otherwise acquire or retire for value, any
Indebtedness of the Company or any Guarantor that is contractually
subordinated to the Notes or any Note Guarantee (excluding any
intercompany Indebtedness between or among the Company and any of its
Restricted Subsidiaries), except a payment of interest or principal at
or after the Stated Maturity of such interest or principal; or
(4) make any Restricted Investment
(all such payments and other actions set forth in clauses (1)
through (4) above being collectively referred to as
"Restricted Payments"), unless, at the time of and after
giving effect to such Restricted Payment:
(i) no Default or Event of Default has occurred and
is continuing or would occur as a consequence of such
Restricted Payment; and
(ii) the Company would, at the time of such
Restricted Payment and after giving pro forma effect thereto
as if such Restricted Payment had been made at the beginning
of the applicable four-quarter period, have been permitted to
incur at least $1.00 of additional Indebtedness pursuant to
the Fixed Charge Coverage Ratio test set forth in Section
4.09(a) hereof; and
(iii) such Restricted Payment, together with the
aggregate amount of all other Restricted Payments made by the
Company and its Restricted Subsidiaries since the date hereof
(excluding Restricted Payments permitted by clauses (2), (3),
(4), (6), (7), (8), (9), (10) and (11) of Section 4.07(b)
below), is less than the sum, without duplication, of:
(A) 50% of the Consolidated Net Income of
the Company for the period (taken as one accounting
period) from the beginning of the first fiscal
quarter commencing after the date hereof to the end
of the Company's most recently ended fiscal quarter
for which internal financial statements are available
at the time of such Restricted Payment (or, if such
Consolidated Net Income for
50
such period is a deficit, less 100% of such deficit);
provided, however, that if at any time after the date
hereof the Notes are rated Investment Grade, the
percentage will be 100% of Consolidated Net Income
for such period; provided, further, however, that if
such Restricted Payment is to be made in reliance
upon an additional amount permitted pursuant to the
immediately preceding proviso, the Notes must be
rated Investment Grade at the time such Restricted
Payment is declared or, if not declared, made, plus
(B) 100% of the aggregate net cash proceeds
received by the Company since the date hereof as a
contribution to its common equity capital or by the
Company or any of its Restricted Subsidiaries from
the issue or sale of Equity Interests of the Company
(other than Disqualified Stock) or from the issue or
sale of convertible or exchangeable Disqualified
Stock or convertible or exchangeable debt securities
of the Company or any of its Restricted Subsidiaries
that have been converted into or exchanged for such
Equity Interests (other than Equity Interests (or
Disqualified Stock or debt securities) sold to a
Subsidiary of the Company), plus
(C) to the extent that any Restricted
Investment that was made after the date hereof is
sold for cash or otherwise liquidated, repaid for
cash or otherwise reduced, the lesser of (i) the cash
return of capital with respect to such Restricted
Investment (less the cost of disposition, if any) and
(ii) the initial amount of such Restricted
Investment, plus
(D) to the extent that any Unrestricted
Subsidiary of the Company is redesignated as a
Restricted Subsidiary after the date hereof, the Fair
Market Value of the Company's Investment in such
Subsidiary as of the date of such redesignation, plus
(E) 50% of any dividends received by the
Company or a Restricted Subsidiary of the Company
that is a Guarantor after the date hereof from an
Unrestricted Subsidiary or a Joint Venture, to the
extent that such dividends were not otherwise
included in Consolidated Net Income of the Company
for such period; provided, however, that if at any
time after the date hereof the Notes are rated
Investment Grade, the percentage will be 100% of any
such dividends; provided, further, however, that if
such Restricted Payment is to be made in reliance
upon an additional amount permitted pursuant to the
immediately preceding proviso, the Notes must be
rated Investment Grade at the time such Restricted
Payment is declared or, if not declared, made.
(b) So long as no Default has occurred and is continuing or would be
caused thereby, the provisions of Section 4.07(a) will not prohibit:
(1) the payment of any dividend within 60 days after the date
of declaration of the dividend, if at the date of declaration the
dividend payment would have complied with the provisions of this
Indenture;
(2) the making of any Restricted Payment in exchange for, or
out of the net cash proceeds of the substantially concurrent issuance
or sale (other than to a Subsidiary of the Company) of, Equity
Interests of the Company (other than Disqualified Stock) or from the
substantially concurrent contribution of common equity capital to the
Company; provided that the
51
amount of any such net cash proceeds that are utilized for any such
redemption, repurchase, retirement, defeasance or other acquisition
will be excluded from Section 4.07(a)(iii)(B) hereof;
(3) the defeasance, redemption, repurchase or other
acquisition of Indebtedness of the Company or any Guarantor that is
contractually subordinated to the Notes or to any Note Guarantee with
the net cash proceeds from a substantially concurrent incurrence of
Permitted Refinancing Indebtedness;
(4) the payment of any dividend (or, in the case of any
partnership or limited liability company, any similar distribution) by
a Restricted Subsidiary to the Company or another Restricted
Subsidiary, or the purchase, redemption or other acquisition or
retirement of any Equity Interests in a Restricted Subsidiary held by
the Company or another Restricted Subsidiary;
(5) the repurchase, redemption or other acquisition or
retirement for value of any Equity Interests of the Company or any
Restricted Subsidiary of the Company held by any current or former
officer, director or employee of the Company or any of its Restricted
Subsidiaries pursuant to any equity subscription agreement, stock
option agreement, shareholders' agreement or similar plan or agreement;
provided that the aggregate price paid for all such repurchased,
redeemed, acquired or retired Equity Interests may not exceed $1.0
million in any twelve-month period;
(6) the repurchase of Equity Interests deemed to occur upon
the exercise of stock options to the extent such Equity Interests
represent a portion of the exercise price of those stock options;
(7) the declaration and payment of dividends to holders of any
class or series of Disqualified Stock of the Company or any Restricted
Subsidiary of the Company issued on or after the date hereof in
accordance with the Fixed Charge Coverage Ratio test set forth in
Section 4.09(a) hereof.
(8) distributions or payments of Receivables Fees;
(9) the repurchase of any Indebtedness of the Company or any
Guarantor that is contractually subordinated to the Notes or to any
Note Guarantee at a purchase price not greater than 101% of the
principal amount thereof in the event of (x) a change of control
pursuant to a provision no more favorable to the holders thereof than
the provision set forth in Section 4.14 hereof or (y) an Asset Sale
(pursuant to a provision no more favorable to the holders thereof than
the provision set forth in Section 4.10 hereof); provided that in each
case, prior to such repurchase the Company has made a Change of Control
Offer or Asset Sale Offer, as applicable, and repurchased all Notes
that were validly tendered for payment in connection with such Change
of Control Offer or Asset Sale Offer;
(10) Permitted Payments to Parent; and
(11) other Restricted Payments in an aggregate amount not to
exceed $25.0 million since the date hereof.
The amount of all Restricted Payments (other than cash) will be the
Fair Market Value on the date of the Restricted Payment of the asset(s) or
securities proposed to be transferred or issued by the Company or such
Restricted Subsidiary, as the case may be, pursuant to the Restricted Payment.
The Fair Market Value of any assets or securities that are required to be valued
by this Section 4.07 will be
52
determined by the Board of Directors and set forth in a Board Resolution which
shall be delivered to the Trustee. The Board of Directors' determination must be
based upon an opinion or appraisal issued by an accounting, appraisal or
investment banking firm of national standing if the Fair Market Value exceeds
$15.0 million.
Section 4.08 Dividend and Other Payment Restrictions Affecting
Subsidiaries.
(a) The Company will not, and will not permit any of its Restricted
Subsidiaries to, directly or indirectly, create or permit to exist or become
effective any consensual encumbrance or restriction on the ability of any
Restricted Subsidiary to:
(1) pay dividends or make any other distributions on its
Capital Stock to the Company or any of its Restricted Subsidiaries or
with respect to any other interest or participation in, or measured by,
its profits, or pay any indebtedness owed to the Company or any of its
Restricted Subsidiaries;
(2) make loans or advances to the Company or any of its
Restricted Subsidiaries; or
(3) transfer any of its properties or assets to the Company or
any of its Restricted Subsidiaries.
(b) The restrictions in Section 4.08(a) will not apply to encumbrances
or restrictions existing under or by reason of:
(1) agreements governing Existing Indebtedness and Credit
Facilities as in effect on the date hereof and any amendments,
modifications, restatements, renewals, increases, supplements,
refundings, replacements or refinancings of those agreements; provided
that such amendments, modifications, restatements, renewals, increases,
supplements, refundings, replacements or refinancings are not
materially more restrictive, taken as a whole, with respect to such
dividend and other payment restrictions than those contained in those
agreements, as in effect on the date hereof;
(2) this Indenture, the Notes and the Note Guarantees;
(3) applicable law, rule, regulation or order;
(4) any instrument governing Indebtedness or Capital Stock of
a Person as in effect at the time of the acquisition by the Company or
any of its Restricted Subsidiaries of such Person or the properties or
assets of such Person (except to the extent such Indebtedness or
Capital Stock was incurred in connection with or in contemplation of
such acquisition), which encumbrance or restriction is not applicable
to any Person, or the properties or assets of any Person, other than
the Person, or the property or assets of the Person, so acquired,
provided that, in the case of Indebtedness, such Indebtedness was
permitted by the terms of this Indenture to be incurred;
(5) customary non-assignment provisions in contracts and
leases entered into in the ordinary course of business;
(6) construction loans and purchase money obligations for
property acquired in the ordinary course of business and Capital Lease
Obligations that impose restrictions on the property constructed,
purchased or leased of the nature described in Section 4.08(a)(3);
53
(7) any agreement for the sale or other disposition of a
Restricted Subsidiary that restricts distributions by that Restricted
Subsidiary pending the sale or other disposition;
(8) Permitted Refinancing Indebtedness, provided that the
restrictions contained in the agreements governing such Permitted
Refinancing Indebtedness are not materially more restrictive, taken as
a whole, than those contained in the agreements governing the
Indebtedness being refinanced;
(9) Liens securing Indebtedness otherwise permitted to be
incurred under the provisions of Section 4.12 hereof that limit the
right of the debtor to dispose of the assets subject to such Liens;
(10) any restriction under an agreement governing Indebtedness
of a Foreign Subsidiary permitted under Section 4.09 hereof;
(11) provisions limiting or prohibiting the disposition or
distribution of assets or property in joint venture agreements, asset
sale agreements, sale-leaseback agreements, stock sale agreements and
other similar agreements entered into with the approval of the
Company's Board of Directors, which limitation or prohibition is
applicable only to the assets that are the subject of such agreements;
and
(12) restrictions on cash or other deposits or net worth
imposed by customers under contracts entered into in the ordinary
course of business.
For purposes of determining compliance with this Section 4.08, in the
event that a restriction meets the criteria of more than one of the categories
of permitted restrictions described in clauses (1) through (12) of this Section
4.08(b), the Company will be permitted to classify such restriction on the date
of its incurrence, or later reclassify all or a portion of such item of
Indebtedness, in any manner that complies with this Section 4.08.
Section 4.09 Incurrence of Indebtedness and Issuance of Preferred Stock.
(a) The Company will not, and will not permit any of its Restricted
Subsidiaries to, directly or indirectly, create, incur, issue, assume, guarantee
or otherwise become directly or indirectly liable, contingently or otherwise,
with respect to (collectively, "incur") any Indebtedness (including Acquired
Debt), and the Company will not issue any Disqualified Stock and will not permit
any of its Restricted Subsidiaries to issue any shares of preferred stock;
provided, however, that the Company may incur Indebtedness (including Acquired
Debt) or issue Disqualified Stock and the Guarantors may incur Indebtedness or
issue preferred stock, if the Fixed Charge Coverage Ratio for the Company's most
recently ended four full fiscal quarters for which internal financial statements
are available immediately preceding the date on which such additional
Indebtedness is incurred or such Disqualified Stock or preferred stock is issued
would have been at least 2.0 to 1, determined on a pro forma basis (including a
pro forma application of the net proceeds therefrom and, in the case of Acquired
Debt, giving pro forma effect to the applicable transaction related thereto), as
if the additional Indebtedness had been incurred (and such transaction had
occurred) or the preferred stock or Disqualified Stock had been issued, as the
case may be, at the beginning of such four-quarter period.
(b) The provisions of Section 4.09(a) will not prohibit the incurrence
of any of the following items of Indebtedness (collectively, "Permitted Debt"):
54
(1) the incurrence by the Company or any Guarantor of
additional Indebtedness and letters of credit under Credit Facilities
in an aggregate principal amount at any one time outstanding under this
clause (1) (with letters of credit being deemed to have a principal
amount equal to the maximum potential liability of the Company and its
Subsidiaries thereunder) not to exceed the greater of (x) $320.0
million less the aggregate amount of all Net Proceeds of Asset Sales
applied by the Company or any of its Restricted Subsidiaries since the
date hereof to repay any term Indebtedness under a Credit Facility or
to repay any revolving credit Indebtedness under a Credit Facility and
effect a corresponding commitment reduction thereunder pursuant to
Section 4.10 hereof or (y) the amount of the Borrowing Base as of the
date of such incurrence;
(2) the incurrence by the Company and its Restricted
Subsidiaries of the Existing Indebtedness;
(3) the incurrence by the Company and the Guarantors of
Indebtedness represented by the Notes and the related Note Guarantees
to be issued on the date hereof and the Exchange Notes and the related
Note Guarantees to be issued in accordance with the Registration Rights
Agreement;
(4) the incurrence by the Company or any of its Restricted
Subsidiaries of Indebtedness represented by Capital Lease Obligations,
mortgage financings or purchase money obligations, in each case,
incurred for the purpose of financing all or any part of the purchase
price or cost of design, construction, installation or improvement of
property, plant or equipment used or usable in a Permitted Business, in
an aggregate principal amount, including all Permitted Refinancing
Indebtedness incurred to refund, refinance or replace any Indebtedness
incurred pursuant to this clause (4), not to exceed $10.0 million at
any time outstanding;
(5) the incurrence by the Company or any of its Restricted
Subsidiaries of Permitted Refinancing Indebtedness in exchange for, or
the net proceeds of which are used to extend, refund, refinance, renew,
defease or replace Indebtedness (other than intercompany Indebtedness)
that was permitted by this Indenture to be incurred under Section
4.09(a) or clauses (2), (3), (4), (5) or (16) of this Section 4.09(b);
(6) the incurrence by the Company or any of its Restricted
Subsidiaries of intercompany Indebtedness between or among the Company
and any of its Restricted Subsidiaries; provided, however, that:
(A) if the Company or any Guarantor is the obligor on
such Indebtedness and the payee is not the Company or a
Guarantor, such Indebtedness must be expressly subordinated to
the prior payment in full in cash of all Obligations then due
with respect to the Notes, in the case of the Company, or the
Note Guarantee, in the case of a Guarantor; and
(B) (1) any subsequent issuance or transfer of Equity
Interests that results in any such Indebtedness being held by
a Person other than the Company or a Restricted Subsidiary of
the Company and (2) any sale or other transfer of any such
Indebtedness to a Person that is not either the Company or a
Restricted Subsidiary of the Company will be deemed, in each
case, to constitute an incurrence of such Indebtedness by the
Company or such Restricted Subsidiary, as the case may be,
that was not permitted by this clause (6);
55
(7) the issuance by any of the Company's Restricted
Subsidiaries to the Company or to any of its Restricted Subsidiaries of
shares of preferred stock; provided, however, that:
(A) any subsequent issuance or transfer of Equity
Interests that results in any such preferred stock being held
by a Person other than the Company or a Restricted Subsidiary
of the Company; and
(B) any sale or other transfer of any such preferred
stock to a Person that is not either the Company or a
Restricted Subsidiary of the Company;
will be deemed, in each case, to constitute an issuance of such preferred
stock by such Restricted Subsidiary that was not permitted by this clause
(7);
(8) the incurrence by the Company or any of its Restricted
Subsidiaries of Hedging Obligations in the ordinary course of business
and not for speculative purposes;
(9) the guarantee by the Company or any of the Guarantors of
Indebtedness of the Company or a Restricted Subsidiary of the Company
that was permitted to be incurred by another provision of this Section
4.09; provided that if the Indebtedness being guaranteed is
subordinated to or pari passu with the Notes, then the guarantee shall
be subordinated to the same extent as the Indebtedness guaranteed;
(10) the incurrence by the Company or any of its Restricted
Subsidiaries of Indebtedness in respect of workers' compensation
claims; self-insurance obligations; bankers' acceptances; performance,
appeal, completion, guarantee and surety bonds; or similar requirements
in the ordinary course of business;
(11) the incurrence by the Company or any of its Restricted
Subsidiaries of Indebtedness arising from the honoring by a bank or
other financial institution of a check, draft or similar instrument
inadvertently drawn against insufficient funds, so long as such
Indebtedness is covered within five business days;
(12) the incurrence by Foreign Subsidiaries of Indebtedness in
an aggregate principal amount at any time outstanding pursuant to this
clause (12), including all Permitted Refinancing Indebtedness incurred
to refund, refinance, defease, renew, extend or replace Indebtedness
incurred pursuant to this clause (12), not to exceed $10.0 million;
(13) the incurrence by the Company or a Restricted Subsidiary
of Indebtedness arising from agreements of the Company or such
Restricted Subsidiary providing for indemnification, adjustment of
purchase price or similar obligations, in each case, incurred in
connection with the disposition of any business, assets or subsidiary,
other than guarantees of Indebtedness incurred by any Person acquiring
all or any portion of such business, assets or subsidiary for the
purpose of financing such acquisition; provided that the maximum
aggregate liability in respect of all such Indebtedness shall at no
time exceed the gross proceeds actually received by the Company or such
Restricted Subsidiary in connection with such disposition;
(14) the incurrence by the Company or a Restricted Subsidiary
of Indebtedness consisting of take-or-pay obligations contained in
supply agreements entered into in the ordinary course of business;
56
(15) the incurrence by the Company of Indebtedness to any of
its Subsidiaries incurred in connection with the purchase of accounts
receivable and related assets by the Company from any such Subsidiary
which assets are subsequently conveyed by the Company in connection
with a Receivable Facility; and
(16) the incurrence by the Company or any of the Guarantors of
additional Indebtedness in an aggregate principal amount (or accreted
value, as applicable) at any time outstanding, including all Permitted
Refinancing Indebtedness incurred to extend, refund, refinance, renew,
defease or replace any Indebtedness incurred pursuant to this clause
(16), and the issuance by the Company of any Disqualified Stock and by
any Restricted Subsidiary of any additional preferred stock, not to
exceed $50.0 million.
The Company will not incur, and will not permit any Guarantor to incur,
any Indebtedness (including Permitted Debt) that is contractually subordinated
in right of payment to any other Pari Passu Indebtedness of the Company or such
Guarantor unless such Indebtedness is also contractually subordinated in right
of payment to the Notes and the related Note Guarantee on substantially
identical terms; provided, however, that no Indebtedness shall be deemed to be
contractually subordinated in right of payment to any other Indebtedness of the
Company solely by virtue of being unsecured or by virtue of being secured on a
first or junior Lien basis.
For purposes of determining compliance with this Section 4.09, in the
event that an item of proposed Indebtedness meets the criteria of more than one
of the categories of Permitted Debt described in clauses (1) through (16) of
Section 4.09(b) or is entitled to be incurred pursuant to Section 4.09(a), the
Company will be permitted to classify such item of Indebtedness on the date of
its incurrence, or later reclassify all or a portion of such item of
Indebtedness, in any manner that complies with this Section 4.09. Indebtedness
under Credit Facilities outstanding on the date on which Notes are first issued
and authenticated under this Indenture will be deemed to have been incurred on
such date in reliance on the exception provided by clause (1) of Section
4.09(b). The accrual of interest, the accretion or amortization of original
issue discount, the payment of interest on any Indebtedness in the form of
additional Indebtedness with the same terms, and the payment of dividends on
Disqualified Stock in the form of additional shares of the same class of
Disqualified Stock will not be deemed to be an incurrence of Indebtedness or an
issuance of Disqualified Stock for purposes of this Section 4.09; provided, in
each such case, that the amount thereof is included in the Fixed Charges of the
Company as accrued. Notwithstanding any other provision of this Section 4.09,
the maximum amount of Indebtedness that the Company or any Restricted Subsidiary
may incur pursuant to this Section 4.09 shall not be deemed to be exceeded
solely as a result of fluctuations in exchange rates or currency values.
Section 4.10 Asset Sales.
(a) The Company will not, and will not permit any of its Restricted
Subsidiaries to, consummate an Asset Sale unless:
(1) the Company or the Restricted Subsidiary, as the case may
be, receives consideration at the time of such Asset Sale at least
equal to the Fair Market Value (as determined by the Company's Board of
Directors and evidenced by a Board Resolution set forth in an Officers'
Certificate delivered to the Trustee) of the assets or Equity Interests
issued or sold or otherwise disposed of; and
(2) at least 75% of the consideration received in the Asset
Sale by the Company or such Restricted Subsidiary is in the form of
cash or Cash Equivalents or a controlling interest in a
57
business engaged in a Permitted Business. For purposes of this Section
4.10(a)(2), each of the following shall also be deemed to be cash:
(A) any liabilities, as shown on its most recent
balance sheet, of the Company or such Restricted Subsidiary
(other than contingent liabilities and liabilities that are by
their terms subordinated to the Notes or any Note Guarantee)
that are assumed by the transferee of any such assets pursuant
to a customary novation agreement that releases the Company or
such Restricted Subsidiary from further liability;
(B) any securities, notes or other obligations
received by the Company or any such Restricted Subsidiary from
such transferee that are promptly, subject to ordinary
settlement periods, converted or monetized by the Company or
such Restricted Subsidiary into cash, to the extent of the
cash received in that conversion or monetization; and
(C) any stock or assets of the kind referred to in
clauses (2) or (4) of Section 4.10(b).
(b) Within 360 days after the receipt of any Net Proceeds from an Asset
Sale, the Company (or the applicable Restricted Subsidiary, as the case may be)
may apply such Net Proceeds at its option:
(1) to repay Indebtedness and other Obligations under a Credit
Facility and, if the Indebtedness repaid is revolving credit
Indebtedness, to correspondingly reduce commitments with respect
thereto;
(2) to acquire all or substantially all of the assets of, or
any Capital Stock of, any Person or division thereof conducting a
Permitted Business, if, in the case of any such acquisition of Capital
Stock and after giving effect thereto, such Person will be a Restricted
Subsidiary of the Company (or enter into a binding commitment for any
such acquisition); provided that such binding commitment shall be
treated as a permitted application of Net Proceeds from the date of
such commitment until and only until the earlier of (x) the date on
which such acquisition is consummated and (y) the 180th day following
the expiration of the aforementioned 360-day period. If the acquisition
or expenditure contemplated by such binding commitment is not
consummated on or before such 180th day and the Company or such
Restricted Subsidiary shall not have applied such Net Proceeds pursuant
to clause (1), (3) or (4) of this Section 4.10(b) on or before such
180th day, such commitment shall be deemed not to have been a permitted
application of Net Proceeds;
(3) to make a capital expenditure; or
(4) to acquire other assets that are not classified as current
assets under GAAP and that are used or useful in a Permitted Business.
(c) Pending the final application of any such Net Proceeds, the Company
may temporarily reduce revolving credit borrowings or otherwise invest such Net
Proceeds in any manner that is not prohibited by this Indenture. Any Net
Proceeds from Asset Sales that are not applied or invested as provided in the
preceding paragraph will constitute "Excess Proceeds." When the aggregate amount
of Excess Proceeds exceeds $15.0 million, within ten days thereof, the Company
shall make an Asset Sale Offer to all Holders and all holders of other Pari
Passu Indebtedness containing provisions similar to those set forth in this
Indenture with respect to offers to purchase or redeem with the proceeds of
asset sales to purchase the maximum principal amount of Notes and such other
Pari Passu Indebtedness that
58
may be purchased out of the Excess Proceeds. The offer price in any Asset Sale
Offer will be equal to 100% of principal amount plus accrued and unpaid interest
and Additional Interest, if any, to the date of purchase, and will be payable in
cash. If any Excess Proceeds remain after consummation of an Asset Sale Offer,
the Company may use such Excess Proceeds for any purpose not otherwise
prohibited by this Indenture. If the aggregate principal amount of Notes and
other Pari Passu Indebtedness tendered into such Asset Sale Offer exceeds the
amount of Excess Proceeds, the Trustee shall select the Notes and such other
Pari Passu Indebtedness to be purchased on a pro rata basis based on the
principal amount of Notes and such other Pari Passu Indebtedness tendered. Upon
completion of each Asset Sale Offer, the amount of Excess Proceeds shall be
reset at zero.
Section 4.11 Transactions with Affiliates.
(a) The Company will not, and will not permit any of its Restricted
Subsidiaries to, make any payment to, or sell, lease, transfer or otherwise
dispose of any of its properties or assets to, or purchase any property or
assets from, or enter into or make or amend any transaction, contract,
agreement, understanding, loan, advance or guarantee with, or for the benefit
of, any Affiliate of the Company (each an "Affiliate Transaction"), unless:
(1) such Affiliate Transaction is on terms that are no less
favorable to the Company or the relevant Restricted Subsidiary than
those that might reasonably have been obtained in a comparable
transaction by the Company or such Restricted Subsidiary with an
unrelated Person; and
(2) the Company delivers to the Trustee:
(A) with respect to any Affiliate Transaction or
series of related Affiliate Transactions involving aggregate
consideration in excess of $5.0 million, a Board Resolution
set forth in an Officers' Certificate certifying that such
Affiliate Transaction complies with this Section 4.11 and that
such Affiliate Transaction has been approved by a majority of
the members of the Board of Directors; and
(B) with respect to any Affiliate Transaction or
series of related Affiliate Transactions involving aggregate
consideration in excess of $15.0 million, an opinion as to the
fairness to the Company or such Restricted Subsidiary of such
Affiliate Transaction from a financial point of view issued by
an accounting, appraisal or investment banking firm of
national standing.
(b) The following items will not be deemed to be Affiliate Transactions
and, therefore, will not be subject to the provisions of Section 4.11(a):
(1) any fees, compensation and other payments paid to any
officer or employee pursuant to any employment agreement, employee or
director benefit plan, officer and director indemnification agreement
or any similar arrangement entered into by the Company or any of its
Restricted Subsidiaries in the ordinary course of business;
(2) transactions between or among the Company and/or its
Restricted Subsidiaries;
(3) transactions with a Person (other than an Unrestricted
Subsidiary of the Company) that is an Affiliate of the Company solely
because the Company owns, directly or through a Restricted Subsidiary,
an Equity Interest in, or controls, such Person;
59
(4) payment of reasonable directors' fees to Persons who are
not otherwise Affiliates of the Company;
(5) any issuance of Equity Interests (other than Disqualified
Stock) of the Company to Affiliates of the Company;
(6) Restricted Payments that do not violate Section 4.07
hereof.
(7) loans or advances to employees in the ordinary course of
business not to exceed $2.0 million in the aggregate at any one time
outstanding;
(8) sales (including a sale in exchange for a promissory note
of or Equity Interest in such Accounts Receivable Subsidiary) of
accounts receivable, related assets and the provision of billing,
collection and other services in connection therewith, in each case, to
an Accounts Receivable Subsidiary in connection with any Receivables
Facility;
(9) transactions pursuant to any contract or agreement in
effect on the date hereof, as the same may be amended, modified,
extended or replaced from time to time, so long as any such contract or
agreement as so amended, modified, extended or replaced is, taken as a
whole, not materially less favorable to the Company and its Restricted
Subsidiaries than under those agreements as described in the Offering
Circular in the section "Certain Relationships and Related
Transactions";
(10) any transaction or series of transactions between the
Company or any Restricted Subsidiary and any of their Joint Ventures,
provided that (a) such transaction or series of transactions is in the
ordinary course of business between the Company or such Restricted
Subsidiary and such Joint Venture, and (b) with respect to any such
Affiliate Transaction involving aggregate consideration in excess of
$5.0 million, such Affiliate Transaction complies with Section
4.11(a)(1) hereof and such Affiliate Transaction has been approved by
the Board of Directors; and
(11) Permitted Investments and Permitted Payments to Parent.
Section 4.12 Liens.
The Company will not, and will not permit any of its Restricted
Subsidiaries to, directly or indirectly, create, incur, assume or suffer to
exist any Lien, except Permitted Liens, to secure Indebtedness of any kind on
any asset now owned or hereafter acquired, unless all payments due under this
Indenture and the Notes are secured on an equal and ratable basis with the
obligations so secured (or, if such obligations are subordinated by their terms
to the Notes or the Note Guarantees, prior to the obligations so secured) until
such time as such obligations are no longer secured by a Lien.
Section 4.13 Corporate Existence.
Subject to Articles 5 and 10 hereof, the Company shall do or cause to
be done all things necessary to preserve and keep in full force and effect (1)
its corporate existence, and the corporate, partnership or other existence of
each of its Restricted Subsidiaries, in accordance with the respective
organizational documents (as the same may be amended from time to time) of the
Company or any such Restricted Subsidiary; and (2) the rights (charter and
statutory), licenses and franchises of the Company and its Restricted
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 Restricted
60
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 Restricted Subsidiaries, taken as a whole, and that the loss thereof is not
adverse in any material respect to the Holders.
Section 4.14 Offer to Repurchase Upon Change of Control.
(a) Upon the occurrence of a Change of Control, the Company will make
an offer (a "Change of Control Offer") to each Holder to repurchase all or any
part (equal to $1,000 or an integral multiple of $1,000) of such Holder's Notes
at a purchase price equal to 101% of the aggregate principal amount thereof plus
accrued and unpaid interest and Additional Interest, if any, on the Notes
repurchased, if any, to the Change of Control Payment Date, subject to the
rights of Holders on the relevant record date to receive interest due on the
relevant interest payment date (the "Change of Control Payment"). Within 30 days
following any Change of Control, the Company will mail a notice to each Holder
describing the transaction or transactions that constitute the Change of Control
and stating:
(1) that the Change of Control Offer is being made pursuant to
this Section 4.14 and that all Notes properly tendered will be accepted
for payment;
(2) the purchase price and the purchase date, which shall be
no earlier than 30 days and no later than 60 days from the date such
notice is mailed (the "Change of Control Payment Date");
(3) that any Note not tendered will continue to accrue
interest;
(4) that, unless the Company defaults in the payment of the
Change of Control Payment, all Notes accepted for payment pursuant to
the Change of Control Offer will cease to accrue interest after the
Change of Control Payment Date, and the only remaining right of the
Holder of such Note is to receive payment of the Change of Control
Payment upon surrender of the Note so purchased to the Company or the
Paying Agent;
(5) that Holders electing to have any Notes purchased pursuant
to a Change of Control Offer will be required to surrender the Notes,
with the form entitled "Option of Holder to Elect Purchase" on the
reverse of the Notes completed, or transfer by book-entry transfer, to
the Paying Agent at the address specified in the notice prior to the
close of business on the third Business Day preceding the Change of
Control Payment Date;
(6) that Holders will be entitled to withdraw their election
if the Paying Agent receives, not later than the close of business on
the second Business Day preceding the Change of Control Payment Date, a
facsimile transmission or letter setting forth the name of the Holder,
the principal amount of Notes delivered for purchase, and a statement
that such Holder is withdrawing his election to have the Notes
purchased; and
(7) that Holders whose Notes are being purchased only in part
will be issued new Notes equal in principal amount to the unpurchased
portion of the Notes surrendered (or transferred by book-entry
transfer), which unpurchased portion must be equal to $1,000 in
principal amount or an integral multiple thereof.
The Company will comply with the provisions of Rule 14e-1 under the
Exchange Act and any other securities laws and regulations thereunder to the
extent such provisions are applicable in connection with each repurchase of the
Notes pursuant to a Change of Control Offer. To the extent that the provisions
of any securities laws or regulations conflict with this Section 4.14, the
Company will comply
61
with the applicable securities laws and regulations and will not be deemed to
have breached its obligations under this Section 4.14 hereof by virtue of such
conflict.
(b) On the Change of Control Payment Date, the Company will, to the
extent lawful:
(1) accept for payment all Notes or portions thereof properly
tendered pursuant to the Change of Control Offer;
(2) deposit with the Paying Agent an amount equal to the
Change of Control Payment in respect of all Notes or portions of Notes
properly tendered; and
(3) deliver or cause to be delivered to the Trustee the Notes
properly accepted together with an Officers' Certificate stating the
aggregate principal amount of Notes or portions of Notes being
purchased by the Company.
The Paying Agent will promptly mail or deliver to each Holder of Notes
properly tendered the Change of Control Payment for such Notes, and the Trustee
will promptly authenticate and mail (or cause to be transferred by book entry)
to each Holder a new Note equal in principal amount to any unpurchased portion
of the Notes surrendered, if any; provided that each new Note will be in a
principal amount of $1,000 or an integral multiple thereof.
(c) Notwithstanding anything to the contrary in this Section 4.14, the
Company will not be required to make a Change of Control Offer upon a Change of
Control if:
(1) a third party makes the Change of Control Offer in the
manner, at the times and otherwise in compliance with the requirements
set forth in this Section 4.14 hereof and purchases all Notes properly
tendered and not withdrawn under the Change of Control Offer; or
(2) notice of redemption has been given pursuant to Section
3.03 hereof, unless or until there is a default in payment of the
applicable redemption price.
(d) Other than as specifically provided in this Section 4.14, any
redemption pursuant to this Section 4.14 shall be made pursuant to the
provisions of Sections 3.05 and 3.06 hereof.
Section 4.15 Limitation on Sale and Leaseback Transactions.
The Company will not, and will not permit any of its Restricted
Subsidiaries to, enter into any sale and leaseback transaction; provided that
the Company or any Restricted Subsidiary may enter into a sale and leaseback
transaction if:
(1) the Company or that Restricted Subsidiary, as applicable,
could have (a) incurred Indebtedness in an amount equal to the
Attributable Debt relating to such sale and leaseback transaction under
the Fixed Charge Coverage Ratio test in Section 4.09(a) hereof and (b)
incurred a Lien to secure such Indebtedness pursuant to Section 4.12
hereof;
(2) the gross cash proceeds of that sale and leaseback
transaction are at least equal to the Fair Market Value, as determined
in good faith by the Board of Directors and set forth in an Officers'
Certificate delivered to the Trustee, of the property that is the
subject of that sale and leaseback transaction; and
62
(3) the transfer of assets in such sale and leaseback
transaction is permitted by, and the Company applies the proceeds of
such sale and leaseback transaction in compliance with, Sections 3.09
and 4.10 hereof.
Section 4.16 Payments for Consent.
The Company will not, and will not permit any of its Restricted
Subsidiaries to, directly or indirectly, pay or cause to be paid any
consideration to or for the benefit of any Holder for or as an inducement to any
consent, waiver or amendment of any of the terms or provisions of this Indenture
or the Notes unless such consideration is offered to be paid or agreed to be
paid to all Holders that consent, waive or agree to amend in the time frame set
forth in the solicitation documents relating to such consent, waiver or
agreement.
Section 4.17 Additional Note Guarantees.
If the Company or any of its Restricted Subsidiaries acquires or
creates another Domestic Subsidiary after the date hereof, then the Company will
cause that newly acquired or created Domestic Subsidiary, unless such newly
acquired or created Domestic Subsidiary has been designated as an Unrestricted
Subsidiary under this Indenture, to become a Guarantor and execute a Note
Guarantee pursuant to a supplemental indenture in form and substance
satisfactory to the Trustee and deliver an Opinion of Counsel satisfactory to
the Trustee, to the Trustee within ten Business Days of the date on which it was
acquired or created to the effect that such supplemental indenture has been duly
authorized, executed and delivered by such Domestic Subsidiary and constitutes a
valid and binding agreement of such Domestic Subsidiary, enforceable against
such Domestic Subsidiary in accordance with its terms (subject to customary
exceptions). The form of such supplemental indenture is attached as Exhibit F
hereto.
Section 4.18 Designation of Restricted and Unrestricted Subsidiaries
The Board of Directors may designate any Restricted Subsidiary to be an
Unrestricted Subsidiary if such designation would not cause a Default. If a
Restricted Subsidiary is designated as an Unrestricted Subsidiary, the aggregate
Fair Market Value of all outstanding Investments owned by the Company and its
Restricted Subsidiaries in the Subsidiary designated as Unrestricted shall be
deemed to be an Investment made as of the time of the designation and will
reduce the amount available for Restricted Payments under Section 4.07 hereof or
under one or more clauses of the definition of Permitted Investments, as
determined by the Company. That designation shall only be permitted if the
Investment would be permitted at that time and if the Restricted Subsidiary
otherwise meets the definition of an Unrestricted Subsidiary. The Board of
Directors may redesignate any Unrestricted Subsidiary to be a Restricted
Subsidiary if that redesignation would not cause a Default. If a Restricted
Subsidiary that is a Guarantor is designated an Unrestricted Subsidiary in
accordance with the terms of this covenant, such Note Guarantee will be
released.
Section 4.19 Accounts Receivable Facilities
The Company or any of its Restricted Subsidiaries may sell (including a
sale in exchange for a promissory note of or Equity Interest in such Accounts
Receivable Subsidiary) at any time and from time to time, accounts receivable
and related assets to any Accounts Receivable Subsidiary; provided that the
aggregate consideration received in each such sale is at least equal to the
aggregate fair market value of the receivables sold.
63
ARTICLE 5.
SUCCESSORS
Section 5.01 Merger, Consolidation, or Sale of Assets.
(a) The Company shall not, directly or indirectly, (1) consolidate or
merge with or into another Person (whether or not the Company is the surviving
corporation), or (2) sell, assign, transfer, convey or otherwise dispose of all
or substantially all of the properties or assets of the Company and its
Restricted Subsidiaries, taken as a whole, in one or more related transactions,
to another Person; unless:
(1) either:
(A) the Company is the surviving or continuing
Person; or
(B) the Person formed by or surviving any such
consolidation or merger (if other than the Company) or to
which such sale, assignment, transfer, conveyance or other
disposition has been made is a Person organized or existing
under the laws of the United States, any state of the United
States or the District of Columbia;
(2) the Person formed by or surviving any such consolidation
or merger (if other than the Company) or the Person to which such sale,
assignment, transfer, conveyance or other disposition has been made
assumes all the obligations of the Company under the Notes, this
Indenture and the Registration Rights Agreement pursuant to agreements
reasonably satisfactory to the Trustee;
(3) immediately after giving effect to such transaction, no
Default or Event of Default exists; and
(4) the Company or the Person formed by or surviving any such
consolidation or merger (if other than the Company), or to which such
sale, assignment, transfer, conveyance or other disposition has been
made will, on the date of such transaction after giving pro forma
effect thereto and any related financing transactions as if the same
had occurred at the beginning of the applicable four-quarter period, be
permitted to incur at least $1.00 of additional Indebtedness pursuant
to the Fixed Charge Coverage Ratio test set forth in Section 4.09(a)
hereof.
In addition, the Company shall not, directly or indirectly, lease all
or substantially all of its properties or assets, in one or more related
transactions, to any other Person.
(b) Section 5.01(a) shall not apply to:
(1) a merger or consolidation of the Company with an Affiliate
for the purpose of reincorporating or reorganizing the Company in
another jurisdiction;
(2) a merger or consolidation of the Company with a Wholly
Owned Restricted Subsidiary; provided that, in connection with any such
merger or consolidation, no consideration, other than Equity Interests
(other than Disqualified Stock) in the surviving or continuing Person
or the Company, shall be issued or distributed to the holders of Equity
Interests of the Company; and
(3) any sale, transfer, assignment, conveyance or other
disposition of assets between or among the Company and its Restricted
Subsidiaries.
64
Section 5.02 Successor Corporation Substituted.
Upon any consolidation or merger, or any sale, assignment, transfer,
lease, conveyance or other disposition of all or substantially all of the
assets, of the Company in a transaction that is subject to, and that complies
with the provisions of, Section 5.01 hereof, the successor Person formed by such
consolidation or into or with which the Company is merged or to which such sale,
assignment, transfer, lease, conveyance or other disposition is made shall
succeed to, and be substituted for (so that from and after the date of such
consolidation, merger, sale, assignment, transfer, lease, conveyance or other
disposition, the provisions of this Indenture referring to the "Company" shall
refer instead to the successor Person and not to the Company), and may exercise
every right and power of the Company under this Indenture and the Notes with the
same effect as if such successor Person had been named as the Company herein and
(except in the case of a lease) the predecessor Company shall be released from
all obligations under this Indenture and the Notes; provided, however, that the
predecessor Company shall not be relieved from the obligation to pay the
principal of and interest on the Notes in the case of a sale, assignment,
transfer, conveyance or other disposition of less than all of the Company's
assets.
ARTICLE 6.
DEFAULTS AND REMEDIES
Section 6.01 Events of Default.
An "Event of Default" occurs if:
(1) there is a default for 30 days in the payment when due of
interest or Additional Interest on the Notes;
(2) there is a default in the payment when due (at maturity,
upon redemption or otherwise) of the principal of, or premium, if any,
on the Notes;
(3) the Company or any of its Restricted Subsidiaries fails to
comply with the provisions of Section 3.09, 4.10, 4.14 or 5.01 hereof;
(4) the Company or any Guarantor fails to comply with any
other covenant or agreement in this Indenture or the Notes which shall
not have been remedied within the specified period after written
notice, as specified in the last paragraph of this Section 6.01;
(5) there is a default under any mortgage, indenture or
instrument under which there may be issued or by which there may be
secured or evidenced any Indebtedness for money borrowed by the Company
or any of its Restricted Subsidiaries (or the payment of which is
guaranteed by the Company or any of its Restricted Subsidiaries),
whether such Indebtedness or guarantee now exists or is created after
the date hereof, if such default:
(A) is caused by a failure to pay principal of, or interest or
premium, if any, on such Indebtedness prior to the expiration of the
grace period provided in such Indebtedness on the date of such default
(a "Payment Default"); or
(B) results in the acceleration of such Indebtedness prior to
its express maturity,
and, in each case, the principal amount of any such Indebtedness,
together with the principal amount of any other such Indebtedness under
which there has been a Payment Default or the
65
maturity of which has been so accelerated, aggregates $20.0 million or
more and has not been discharged in full or such acceleration has not
been rescinded or annulled within 30 days of such maturity or
acceleration;
(6) a final judgment or final judgments for the payment of
money are entered by a court or courts of competent jurisdiction
against the Company or any of its Restricted Subsidiaries, which
judgment or judgments are not paid, stayed or otherwise discharged for
a period of 60 days after such judgment or judgments become final and
non-appealable; provided that the aggregate of all such unpaid,
unstayed or undischarged judgments that are not covered by indemnities
or third party insurance as to which the Person giving such indemnity
or such insurer has not disclaimed coverage exceeds $20.0 million; and
(7) the Company or any Restricted Subsidiary that is a
Significant Subsidiary or any group of Restricted Subsidiaries that,
taken as a whole, would constitute a Significant Subsidiary pursuant to
or within the meaning of Bankruptcy Law:
(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 property,
(D) makes a general assignment for the benefit of its
creditors; or
(8) a court of competent jurisdiction enters an order or
decree under any Bankruptcy Law that remains unstayed and in effect for
60 consecutive days and that:
(A) is for relief against the Company or any
Restricted Subsidiary that is a Significant Subsidiary or any
group of Restricted Subsidiaries that, taken as a whole, would
constitute a Significant Subsidiary as debtor in an
involuntary case;
(B) appoints a custodian of the Company or any
Restricted Subsidiary that is a Significant Subsidiary or any
group of Restricted Subsidiaries that, taken as a whole, would
constitute a Significant Subsidiary or for all or
substantially all of the property of the Company or any
Restricted Subsidiary that is a Significant Subsidiary or any
group of Restricted Subsidiaries that, taken as a whole, would
constitute a Significant Subsidiary; or
(C) orders the liquidation of the Company or any
Restricted Subsidiary that is a Significant Subsidiary or any
group of Restricted Subsidiaries that, taken as a whole, would
constitute a Significant Subsidiary;
(9) except as permitted by this Indenture, any Note Guarantee
is held in any judicial proceeding to be unenforceable or invalid or
shall cease for any reason to be in full force and effect or any
Guarantor, or any Person acting on behalf of any Guarantor, shall deny
or disaffirm its obligations under its Note Guarantee.
When a Default is cured, it ceases.
66
A Default under clause (4) of this Section 6.01 is not an Event of
Default until the Trustee notifies the Company, or the Holders of at least 25%
in principal amount of the then outstanding Notes notify the Company, and the
Trustee, of the Default, and the Company or the applicable Guarantor, as the
case may be, fails to cure the Default within 60 days after receipt of the
notice. The notice must specify the Default, demand that it be remedied and
state that the notice is a "Notice of Default."
Section 6.02 Acceleration.
(a) In the case of an Event of Default specified in clause (7) or (8)
of Section 6.01 hereof, all outstanding Notes will become due and payable
immediately without further action or notice. If any other Event of Default
occurs and is continuing, the Trustee by notice to the Company or the Holders of
at least 25% in principal amount of the then outstanding Notes by notice to the
Company and the Trustee, may declare all the Notes to be due and payable. Upon
any such declaration, the Notes shall become due and payable immediately. The
Holders of a majority in aggregate principal amount of the then outstanding
Notes by written notice to the Trustee may on behalf of all of the Holders
rescind an acceleration and its consequences if the rescission would not
conflict with any judgment or decree and if all existing Events of Default
(except nonpayment of principal or premium, if any, interest or Additional
Interest, if any, that has become due solely because of the acceleration) have
been cured or waived.
(b) If an Event of Default occurs by reason of any willful action or
inaction taken or not taken by or on behalf of the Company with the intention of
avoiding payment of the premium that the Company would have had to pay if the
Company then had elected to redeem the Notes pursuant to Section 3.07(b) (if
such Event of Default occurs prior to July 15, 2007) or Section 3.07(c) (if such
Event of Default occurs on or after July 15, 2007), then, upon acceleration of
the Notes, an equivalent premium shall also become and be immediately due and
payable, to the extent permitted by law.
(c) Section 6.02(b) refers only to those times when the Company, while
solvent, voluntarily, knowingly, deliberately or intentionally avoids payment of
the premium referred to in Section 6.02(b) and is not intended to encompass
those situations in which such a payment of premium would render the Company
insolvent or force a bankruptcy, liquidation or reorganization of the Company,
or where non-payment is a result of financial distress or adverse financial
condition.
Section 6.03 Other Remedies.
If an Event of Default occurs and is continuing, the Trustee may pursue
any available remedy to collect the payment of principal and premium, if any,
interest and Additional Interest, if any, on the Notes or to enforce the
performance of any provision of the Notes or this Indenture.
The Trustee may maintain a proceeding even if it does not possess any
of the Notes or does not produce any of them in the proceeding. A delay or
omission by the Trustee or any Holder of a Note in exercising any right or
remedy accruing upon an Event of Default shall not impair the right or remedy or
constitute a waiver of or acquiescence in the Event of Default. All remedies are
cumulative to the extent permitted by law.
Section 6.04 Waiver of Past Defaults.
Subject to Sections 6.07 and 9.02, Holders of not less than a majority
in aggregate principal amount of the then outstanding Notes by notice to the
Trustee may on behalf of the Holders of all of the Notes waive an existing
Default or Event of Default and its consequences hereunder (including, without
limitation, waivers obtained in connection with a tender offer or exchange offer
for, or purchases of, Notes or a solicitation of consents in respect of Notes),
except (1) a continuing Default or Event of
67
Default in the payment of the principal of, or premium, if any, interest or
Additional Interest, if any, on any Note or (2) a continued Default in respect
of a provision that under Section 9.02 cannot be amended or supplemented without
the consent of each Holder affected. Upon any such waiver, such Default shall
cease to exist, and any Event of Default arising therefrom shall be deemed to
have been cured for every purpose of this Indenture; but no such waiver shall
extend to any subsequent or other Default or impair any right consequent
thereon.
Section 6.05 Control by Majority.
Holders of a majority in principal amount of the then outstanding Notes
may direct the time, method and place of conducting any proceeding for
exercising any remedy available to the Trustee or exercising any trust or power
conferred on it. However, the Trustee may refuse to follow any direction that
conflicts with law or this Indenture, that the Trustee determines may be unduly
prejudicial to the rights of other Holders of Notes or that may involve the
Trustee in personal liability.
Section 6.06 Limitation on Suits.
Subject to Section 6.07, a Holder of a Note may pursue a remedy with
respect to this Indenture or the Notes only if:
(1) the Holder gives to the Trustee written notice of a
continuing Event of Default;
(2) the Holders of at least 25% in aggregate principal amount
of the then outstanding Notes make a written request to the Trustee to
pursue the remedy;
(3) such Holder or Holders offer and, if requested, provide to
the Trustee indemnity or security reasonably satisfactory to the
Trustee against any loss, liability or expense;
(4) the Trustee does not comply with such request within 60
days after receipt of the request and the offer and, if requested, the
provision of reasonable security or indemnity; and
(5) during such 60-day period, the Holders of a majority in
principal amount of the then outstanding Notes do not give the Trustee
a direction inconsistent with the request.
A Holder may not use this Indenture to prejudice the rights of another
Holder or to obtain a preference or priority over another Holder.
Section 6.07 Rights of Holders of Notes to Receive Payment.
Notwithstanding any other provision of this Indenture, the right of any
Holder of a Note to receive payment of principal of, and premium, if any,
interest and Additional Interest, if any, on such Note, on or after the
respective due dates expressed in such Note (including in connection with an
offer to purchase), or to bring suit for the enforcement of any such payment on
or after such respective dates, shall not be impaired or affected without the
consent of such Holder.
Section 6.08 Collection Suit by Trustee.
If an Event of Default specified in Section 6.01(1) or (2) occurs and
is continuing, the Trustee is authorized to recover judgment in its own name and
as trustee of an express trust against the Company or a Guarantor for the whole
amount of principal of, and premium, if any, interest and Additional Interest,
if any, remaining unpaid on the Notes and interest on overdue principal and, to
the extent lawful, interest
68
and such further amount as shall be sufficient to cover the costs and expenses
of collection, including the reasonable compensation, expenses, disbursements
and advances of the Trustee, its agents and counsel.
Section 6.09 Trustee May File Proofs of Claim.
The Trustee is authorized to file such proofs of claim and other papers
or documents and to take such actions, including participating as a member,
voting or otherwise, of any committee of creditors, as may be necessary or
advisable in order to have the claims of the Trustee (including any claim for
the reasonable compensation, expenses, disbursements and advances of the
Trustee, its agents and counsel) and the Holders of the Notes allowed in any
judicial proceedings relative to the Company (or any other obligor upon the
Notes), its creditors or its property and shall be entitled and empowered to
collect, receive and distribute any money or other property payable or
deliverable on any such claims and any custodian in any such judicial proceeding
is hereby authorized by each Holder to make such payments to the Trustee, and in
the event that the Trustee shall consent to the making of such payments directly
to the Holders, to pay to the Trustee any amount due to it for the reasonable
compensation, expenses, disbursements and advances of the Trustee, its agents
and counsel, and any other amounts due the Trustee under Section 7.07 hereof. To
the extent that the payment of any such compensation, expenses, disbursements
and advances of the Trustee, its agents and counsel, and any other amounts due
the Trustee under Section 7.07 hereof out of the estate in any such proceeding,
shall be denied for any reason, payment of the same shall be secured by a Lien
on, and shall be paid out of, any and all distributions, dividends, money,
securities and other properties that the Holders may be entitled to receive in
such proceeding whether in liquidation or under any plan of reorganization or
arrangement or otherwise. Nothing herein contained shall be deemed to authorize
the Trustee to authorize or consent to or accept or adopt on behalf of any
Holder any plan of reorganization, arrangement, adjustment or composition
affecting the Notes or the rights of any Holder, or to authorize the Trustee to
vote in respect of the claim of any Holder in any such proceeding.
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, its agents and attorneys for amounts
due under Section 7.07 hereof, including payment of all compensation,
expense and liabilities incurred, and all advances made, by the Trustee
and the costs and expenses of collection;
Second: to Holders of Notes for amounts due and unpaid on the
Notes for principal of, and premium, if any, interest and Additional
Interest, if any, ratably, without preference or priority of any kind,
according to the amounts due and payable on the Notes for principal of,
and premium, if any, interest and Additional Interest, if any,
respectively; and
Third: to the Company or to such party as a court of competent
jurisdiction shall direct.
The Trustee may fix a record date and payment date for any payment to
Holders pursuant to this Section 6.10.
Section 6.11 Undertaking for Costs.
In any suit for the enforcement of any right or remedy under this
Indenture or in any suit against the Trustee for any action taken or omitted by
it as a Trustee, a court in its discretion may require the
69
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 of a Note pursuant to Section 6.07 hereof, or a suit by Holders of more
than 10% in principal amount of the then outstanding Notes.
ARTICLE 7.
TRUSTEE
Section 7.01 Duties of Trustee.
(a) If an Event of Default has occurred and is continuing, the Trustee
will exercise such of the rights and powers vested in it by this Indenture, and
use the same degree of care and skill in its exercise, as a prudent person would
exercise or use under the circumstances in the conduct of such person's own
affairs.
(b) Except during the continuance of an Event of Default:
(1) the duties of the Trustee will be determined solely by the
express provisions of this Indenture and the Trustee need perform only
those duties that are specifically set forth in this Indenture and no
others, and no implied covenants or obligations shall be read into this
Indenture against the Trustee; and
(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 Indenture. However, the Trustee will examine the certificates and
opinions to determine whether or not they conform to the requirements
of this Indenture.
(c) The Trustee may not be relieved from liabilities for its own
negligent action, its own negligent failure to act, or its own willful
misconduct, except that:
(1) this paragraph does not limit the effect of paragraph (b)
of this Section 7.01;
(2) the Trustee will not be liable for any error of judgment
made in good faith by a Responsible Officer, unless it is proved that
the Trustee was negligent in ascertaining the pertinent facts; and
(3) the Trustee will not be liable with respect to any action
it takes or omits to take in good faith in accordance with a direction
received by it pursuant to Section 6.05 hereof.
(d) Whether or not therein expressly so provided, every provision of
this Indenture that in any way relates to the Trustee is subject to paragraphs
(a), (b), and (c) of this Section 7.01.
(e) No provision of this Indenture will require the Trustee to expend
or risk its own funds or incur any liability. The Trustee will be under no
obligation to exercise any of its rights and powers under this Indenture at the
request of any Holders, unless such Holder has offered to the Trustee security
and indemnity satisfactory to it against any loss, liability or expense.
70
(f) The Trustee will not be liable for interest on any money received
by it except as the Trustee may agree in writing with the Company. Money held in
trust by the Trustee need not be segregated from other funds except to the
extent required by law.
Section 7.02 Rights of Trustee.
(a) The Trustee may conclusively rely upon 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.
(b) Before the Trustee acts or refrains from acting, it may require an
Officers' Certificate or an Opinion of Counsel or both. The Trustee will not be
liable for any action it takes or omits to take in good faith in reliance on
such Officers' Certificate or Opinion of Counsel. The Trustee may consult with
counsel and the written advice of such counsel or any Opinion of Counsel will be
full and complete authorization and protection from liability in respect of any
action taken, suffered or omitted by it hereunder in good faith and in reliance
thereon.
(c) The Trustee may act through its attorneys and agents and will not
be responsible for the misconduct or negligence of any agent appointed with due
care.
(d) The Trustee will not be liable for any action it takes or omits to
take in good faith that it believes to be authorized or within the rights or
powers conferred upon it by this Indenture.
(e) Unless otherwise specifically provided in this Indenture, any
demand, request, direction or notice from the Company or a Guarantor will be
sufficient if signed by an Officer of the Company or such Guarantor.
(f) The Trustee will be under no obligation to exercise any of the
rights or powers vested in it by this Indenture at the request or direction of
any of the Holders unless such Holders have offered to the Trustee reasonable
security or indemnity against the costs, expenses and liabilities that might be
incurred by it in compliance with such request or direction.
(g) The Trustee is not required to take notice or deemed to have notice
of any Event of Default hereunder, except Events of Default under Section
6.01(1) or 6.01(2), unless a Responsible Officer of the Trustee has actual
knowledge thereof or has received notice in writing of such Event of Default
from the Company, any Guarantor or the Holders of at least 25% in aggregate
principal amount of the outstanding Notes, and in the absence of any such
notice, the Trustee may conclusively assume that no such Event of Default
exists.
(h) The Trustee is not required to give any bond or surety with respect
to the performance of its duties or the exercise of its powers under this
Indenture.
(i) In the event the Trustee receives inconsistent or conflicting
requests and indemnity from two or more groups of Holders of Notes, each
representing less than a majority in aggregate principal amount of the
outstanding Notes, pursuant to the provisions of this Indenture, the Trustee, in
its sole discretion, may determine what action, if any, shall be taken.
(j) The Trustee's immunities and protections from liability and its
right to indemnification in connection with the performance of its duties under
this Indenture shall extend to the Trustee's officers, directors, agents,
attorneys and employees to the same extent as is applicable to the Trustee. Such
immunities and protections and right to indemnification, together with the
Trustee's right to
71
compensation, shall survive the Trustee's resignation or removal, the defeasance
or discharge of this Indenture and final payment of the Notes.
(k) The permissive right of the Trustee to take the actions permitted
by this Indenture shall not be construed as an obligation or duty to do so.
Section 7.03 Individual Rights of Trustee.
The Trustee in its commercial banking or any other capacity may become
the owner or pledgee of Notes and may otherwise deal with the Company, any
Guarantor or any Affiliate of the Company or any Guarantor with the same rights
it would have if it were not Trustee. However, in the event that the Trustee
acquires any conflicting interest it must eliminate such conflict within 90
days, apply to the SEC for permission to continue as Trustee or resign. Any
Agent may do the same with like rights and duties. The Trustee is also subject
to Sections 7.10 and 7.11 hereof.
Section 7.04 Trustee's Disclaimer.
The Trustee will not be responsible for and makes no representation as
to the validity or adequacy of this Indenture or the Notes, it shall not be
accountable for the Company's use of the proceeds from the Notes or any money
paid to the Company or any Guarantor or upon the Company's or any Guarantor's
direction under any provision of this Indenture, it will not be responsible for
the use or application of any money received by any Paying Agent other than the
Trustee, it will not be responsible for any statement or recital herein or any
statement or other information in the Notes, any offering circular or any other
document in connection with the sale of the Notes or pursuant to this Indenture
other than its certificate of authentication.
Section 7.05 Notice of Defaults.
If a Default or Event of Default occurs and is continuing and if it is
known to the Trustee, the Trustee will mail to Holders of Notes a notice of the
Default or Event of Default within 90 days after it occurs. Except in the case
of a Default or Event of Default in payment of principal of, or premium, if any,
interest or Additional Interest, if any, on any Note, the Trustee may withhold
the notice if and so long as a committee of its Responsible Officers in good
faith determines that withholding the notice is in the interests of the Holders
of the Notes.
Section 7.06 Reports by Trustee to Holders of the Notes.
(a) Within 60 days after each June 15 beginning with the June 15
following the date of this Indenture, and for so long as Notes remain
outstanding, the Trustee will mail to the Holders a brief report dated as of
such reporting date that complies with TIA Section 313(a) (but if no event
described in TIA Section 313(a) has occurred within the twelve months preceding
the reporting date, no report need be transmitted). The Trustee also will comply
with TIA Section 313(b)(2). The Trustee will also transmit by mail all reports
as required by TIA Section 313(c).
(b) A copy of each report at the time of its mailing to the Holders
will be mailed by the Trustee to the Company and filed by the Trustee with the
SEC and each stock exchange on which the Notes are listed in accordance with TIA
Section 313(d). The Company will promptly notify the Trustee when the Notes are
listed on any stock exchange.
72
Section 7.07 Compensation and Indemnity.
(a) The Company will pay to the Trustee from time to time reasonable
compensation for its acceptance of this Indenture and services hereunder. The
Trustee's compensation will not be limited by any law on compensation of a
trustee of an express trust. The Company will reimburse the Trustee promptly
upon request for all reasonable disbursements, advances and expenses incurred or
made by it in addition to the compensation for its services. Such expenses will
include the reasonable compensation, disbursements and expenses of the Trustee's
agents and counsel.
(b) The Company and the Guarantors will indemnify the Trustee against
any and all losses, liabilities or expenses incurred by it arising out of or in
connection with the acceptance or administration of its duties under this
Indenture, including the costs and expenses of enforcing this Indenture against
the Company and the Guarantors (including this Section 7.07) and defending
itself against any claim (whether asserted by the Company, the Guarantors or any
Holder or any other Person) or liability in connection with the exercise or
performance of any of its powers or duties hereunder, except to the extent any
such loss, liability or expense may be attributable to its negligence or bad
faith. The Trustee will notify the Company promptly of any claim for which it
may seek indemnity. Failure by the Trustee to so notify the Company will not
relieve the Company or any of the Guarantors of their obligations hereunder. The
Company or such Guarantor will defend the claim and the Trustee will cooperate
in the defense. The Trustee may have separate counsel and the Company will pay
the reasonable fees and expenses of such counsel. Neither the Company nor any
Guarantor need pay for any settlement made without its consent, which consent
will not be unreasonably withheld.
(c) The obligations of the Company and the Guarantors under this
Section 7.07 will survive the satisfaction and discharge of this Indenture.
(d) To secure the Company's payment obligations in this Section 7.07,
the Trustee will have a Lien prior to the Notes on all money or property held or
collected by the Trustee, except that held in trust to pay principal and
interest on particular Notes. Such Lien will survive the satisfaction and
discharge of this Indenture.
(e) When the Trustee incurs expenses or renders services after an Event
of Default specified in Section 6.01(7) or (8) hereof occurs, the expenses and
the compensation for the services (including the fees and expenses of its agents
and counsel) are intended to constitute expenses of administration under any
Bankruptcy Law.
(f) The Trustee will comply with the provisions of TIA Section
313(b)(2) to the extent applicable.
Section 7.08 Replacement of Trustee.
(a) A resignation or removal of the Trustee and appointment of a
successor Trustee will become effective only upon the successor Trustee's
acceptance of appointment as provided in this Section 7.08.
(b) The Trustee may resign at any time and be discharged from the trust
hereby created by so notifying the Company in writing. The Holders of a majority
in principal amount of the then outstanding Notes may remove the Trustee by so
notifying the Trustee and the Company in writing. The Company may remove the
Trustee if:
(1) the Trustee fails to comply with Section 7.10 hereof;
73
(2) the Trustee is adjudged a bankrupt or an insolvent or an
order for relief is entered with respect to the Trustee under any
Bankruptcy Law;
(3) a custodian or public officer takes charge of the Trustee
or its property; or
(4) the Trustee becomes incapable of acting.
(c) If the Trustee resigns or is removed or if a vacancy exists in the
office of Trustee for any reason, the Company will promptly appoint a successor
Trustee. Within one year after the successor Trustee takes office, the Holders
of a majority in principal amount of the then outstanding Notes may appoint a
successor Trustee to replace the successor Trustee appointed by the Company.
(d) If a successor Trustee does not take office within 60 days after
the retiring Trustee resigns or is removed, the retiring Trustee, the Company,
or the Holders of at least 10% in principal amount of the then outstanding Notes
may petition any court of competent jurisdiction for the appointment of a
successor Trustee.
(e) If the Trustee, after written request by any Holder who has been a
Holder for at least six months, fails to comply with Section 7.10, such Holder
may petition any court of competent jurisdiction for the removal of the Trustee
and the appointment of a successor Trustee.
(f) A successor Trustee will deliver a written acceptance of its
appointment to the retiring Trustee and to the Company. Thereupon, the
resignation or removal of the retiring Trustee will become effective, and the
successor Trustee will have all the rights, powers and duties of the Trustee
under this Indenture. The successor Trustee will mail a notice of its succession
to Holders. The retiring Trustee will promptly transfer all property held by it
as Trustee to the successor Trustee; provided all sums owing to the Trustee
hereunder have been paid and subject to the Lien provided for in Section 7.07
hereof. Notwithstanding replacement of the Trustee pursuant to this Section
7.08, the Company's obligations under Section 7.07 hereof will continue for the
benefit of the retiring Trustee.
Section 7.09 Successor Trustee by Merger, Etc.
Subject to Section 7.10, if the Trustee consolidates, merges or
converts into, or transfers all or substantially all of its corporate trust
business to, another corporation, the successor corporation without any further
act will be the successor Trustee.
Section 7.10 Eligibility; Disqualification.
There will at all times be a Trustee hereunder that is a corporation,
bank or banking association organized and doing business under the laws of the
United States of America or of any state thereof that is authorized under such
laws to exercise corporate trustee power, that is subject to supervision or
examination by federal or state authorities and that has a combined capital and
surplus of at least $100 million as set forth in its most recent published
annual report of condition.
This Indenture will always have a Trustee who satisfies the
requirements of TIA Section 310(a)(1), (2) and (5). The Trustee is subject to
TIA Section 310(b).
74
Section 7.11 Preferential Collection of Claims Against Company.
The Trustee is subject to TIA Section 311(a), excluding any creditor
relationship listed in TIA Section 311(b). A Trustee who has resigned or been
removed shall be subject to TIA Section 311(a) to the extent indicated therein.
ARTICLE 8.
LEGAL DEFEASANCE AND COVENANT DEFEASANCE
Section 8.01 Option to Effect Legal Defeasance or Covenant Defeasance.
The Company may, at the option of its Board of Directors evidenced by a
Board Resolution set forth in an Officers' Certificate, at any time, elect to
have either Section 8.02 or 8.03 hereof be applied to all outstanding Notes upon
compliance with the conditions set forth below in this Article 8.
Section 8.02 Legal Defeasance and Discharge.
Upon the Company's exercise under Section 8.01 hereof of the option
applicable to this Section 8.02, the Company and each of the Guarantors will,
subject to the satisfaction of the conditions set forth in Section 8.04 hereof,
be deemed to have been discharged from their obligations with respect to all
outstanding Notes (including the Note Guarantees) on the date the conditions set
forth below are satisfied (hereinafter, "Legal Defeasance"). For this purpose,
Legal Defeasance means that the Company and the Guarantors will be deemed to
have paid and discharged the entire Indebtedness represented by the outstanding
Notes (including the Note Guarantees), which will thereafter be deemed to be
"outstanding" only for the purposes of Section 8.05 hereof and the other
Sections of this Indenture referred to in clauses (1) and (2) below, and to have
satisfied all their other obligations under such Notes, the Note Guarantees and
this Indenture (and the Trustee, on demand of and at the expense of the Company,
shall execute proper instruments acknowledging the same), except for the
following provisions which will survive until otherwise terminated or discharged
hereunder:
(1) the rights of Holders of outstanding Notes to receive
payments in respect of the principal of, and premium, if any, interest
and Additional Interest, if any, on such Notes when such payments are
due from the trust referred to in Section 8.04 hereof;
(2) the Company's obligations with respect to such Notes under
Sections 2.02, 2.03, 2.04, 2.05, 2.06, 2.07, 2.10 and 4.02 hereof;
(3) the rights, powers, trusts, duties and immunities of the
Trustee hereunder and the Company's obligations in connection
therewith; and
(4) this Article 8.
Subject to compliance with this Article 8, the Company may exercise its
option under this Section 8.02 notwithstanding the prior exercise of its option
under Section 8.03 hereof.
Section 8.03 Covenant Defeasance.
Upon the Company's exercise under Section 8.01 hereof of the option
applicable to this Section 8.03, the Company and the Guarantors will, subject to
the satisfaction of the conditions set forth in Section 8.04 hereof, be released
from each of their obligations under the covenants contained in Sections 4.07,
4.08, 4.09, 4.10, 4.11, 4.12, 4.13, 4.14, 4.15, 4.16, 4.17, 4.18 and 4.19 hereof
and clause (4) of
75
Section 5.01 hereof with respect to the outstanding Notes on and after the date
the conditions set forth in Section 8.04 hereof are satisfied (hereinafter,
"Covenant Defeasance"), and the Notes will thereafter be deemed not
"outstanding" for the purposes of any direction, waiver, consent or declaration
or act of Holders (and the consequences of any thereof) in connection with such
covenants, but will continue to be deemed "outstanding" for all other purposes
hereunder (it being understood that such Notes will not be deemed outstanding
for accounting purposes). For this purpose, Covenant Defeasance means that, with
respect to the outstanding Notes and Note Guarantees, the Company and the
Guarantors may omit to comply with and will have no liability in respect of any
term, condition or limitation set forth in any such covenant, whether directly
or indirectly, by reason of any reference elsewhere herein to any such covenant
or by reason of any reference in any such covenant to any other provision herein
or in any other document and such omission to comply will not constitute a
Default or an Event of Default under Section 6.01 hereof, but, except as
specified above, the remainder of this Indenture and such Notes and Note
Guarantees will be unaffected thereby. In addition, upon the Company's exercise
under Section 8.01 hereof of the option applicable to this Section 8.03 hereof,
subject to the satisfaction of the conditions set forth in Section 8.04 hereof,
Sections 6.01(3) through 6.01(5) hereof will not constitute Events of Default.
Section 8.04 Conditions to Legal or Covenant Defeasance.
In order to exercise either Legal Defeasance or Covenant Defeasance
under either Sections 8.02 or 8.03 hereof:
(1) the Company must irrevocably deposit with the Trustee, in
trust, for the benefit of the Holders, (x) cash in United States
dollars, (y) non-callable Government Securities, or (z) a combination
of the two, in such amounts as will be sufficient, in the opinion (in
the case of clauses (y) and (z)) of a nationally recognized investment
bank, appraisal firm or firm of independent public accountants, to pay
the principal of, and premium, if any, interest and Additional
Interest, if any, on the outstanding Notes on the Stated Maturity or on
the applicable redemption date, as the case may be, and the Company
must specify whether the Notes are being defeased to maturity or to a
particular redemption date;
(2) in the case of an election under Section 8.02 hereof, the
Company has delivered to the Trustee an Opinion of Counsel reasonably
acceptable to the Trustee confirming that:
(A) the Company has received from, or there has been
published by, the Internal Revenue Service a ruling; or
(B) since the date hereof, there has been a change in
the applicable federal income tax law,
in either case, to the effect that, and based thereon such Opinion of
Counsel shall confirm that, the Holders of the outstanding Notes will
not recognize income, gain or loss for federal income tax purposes as a
result of such Legal Defeasance and will be subject to federal income
tax on the same amounts, in the same manner and at the same times as
would have been the case if such Legal Defeasance had not occurred;
(3) in the case of an election under Section 8.03 hereof, the
Company must deliver to the Trustee an Opinion of Counsel reasonably
acceptable to the Trustee confirming that the Holders of the
outstanding Notes will not recognize income, gain or loss for federal
income tax purposes as a result of such Covenant Defeasance and will be
subject to federal income tax on the same amounts, in the same manner
and at the same times as would have been the case if such Covenant
Defeasance had not occurred;
76
(4) no Default or Event of Default shall have occurred and be
continuing on the date of such deposit (other than a Default or Event
of Default resulting from the borrowing of funds to be applied to such
deposit);
(5) such Legal Defeasance or Covenant Defeasance will not
result in a breach or violation of, or constitute a default under, any
material agreement or instrument (other than this Indenture) to which
the Company or any of its Subsidiaries is a party or by which the
Company or any of its Subsidiaries is bound;
(6) the Company must deliver to the Trustee an Officers'
Certificate stating that the deposit was not made by the Company with
the intent of preferring the Holders over any other creditors of the
Company with the intent of defeating, hindering, delaying or defrauding
any other creditors of the Company or others; and
(7) the Company must deliver to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that all conditions
precedent provided for or relating to the Legal Defeasance or the
Covenant Defeasance have been complied with.
Section 8.05 Deposited Money and Government Securities to be Held in Trust;
Other Miscellaneous Provisions.
Subject to Section 8.06 hereof, all money and non-callable Government
Securities (including the proceeds thereof) deposited with the Trustee (or other
qualifying trustee, collectively for purposes of this Section 8.05, the
"Trustee") pursuant to Section 8.04 hereof in respect of the outstanding Notes
will be held in trust and applied by the Trustee, in accordance with the
provisions of such Notes and this Indenture, to the payment, either directly or
through any Paying Agent (including the Company or any of its Domestic
Subsidiaries acting as Paying Agent) as the Trustee may determine, to the
Holders of such Notes of all sums due and to become due thereon in respect of
principal of, and premium, if any, interest and Additional Interest, if any, but
such money need not be segregated from other funds except to the extent required
by law.
The Company will pay and indemnify the Trustee against any tax, fee or
other charge imposed on or assessed against the cash or non-callable Government
Securities deposited pursuant to Section 8.04 hereof or the principal and
interest received in respect thereof other than any such tax, fee or other
charge which by law is for the account of the Holders of the outstanding Notes.
Notwithstanding anything in this Article 8 to the contrary, the Trustee
will deliver or pay to the Company from time to time upon the request of the
Company any money or non-callable Government Securities held by it as provided
in Section 8.04 hereof which, in the opinion of a nationally recognized firm of
independent public accountants expressed in a written certification thereof
delivered to the Trustee (which may be the opinion delivered under Section
8.04(1) hereof), are in excess of the amount thereof that would then be required
to be deposited to effect an equivalent Legal Defeasance or Covenant Defeasance.
Section 8.06 Repayment to Company.
Any money deposited with the Trustee or any Paying Agent, or then held
by the Company, in trust for the payment of the principal of, or premium, if
any, interest or Additional Interest, if any, on any Note and remaining
unclaimed for two years after such principal and premium, if any, interest and
Additional Interest, if any, has become due and payable shall be paid to the
Company on its request or (if then held by the Company) will be discharged from
such trust; and the Holder of such Note will thereafter
77
be permitted to look only to the Company for payment thereof as general
creditors unless an applicable abandoned property law designates another Person,
and all liability of the Trustee or such Paying Agent with respect to such trust
money, and all liability of the Company as trustee thereof, will thereupon
cease; provided, however, that the Trustee or such Paying Agent, before being
required to make any such repayment, may at the expense of the Company cause to
be published once, in the New York Times and The Wall Street Journal (national
edition), notice that such money remains unclaimed and that, after a date
specified therein, which will not be less than 30 days from the date of such
notification or publication, any unclaimed balance of such money then remaining
will be repaid to the Company.
Section 8.07 Reinstatement.
If the Trustee or Paying Agent is unable to apply any United States
dollars or non-callable Government Securities in accordance with Section 8.02 or
8.03 hereof, as the case may be, by reason of any order or judgment of any court
or governmental authority enjoining, restraining or otherwise prohibiting such
application, then the Company's and any Guarantor's obligations under this
Indenture and the Notes and the Note Guarantees will be revived and reinstated
as though no deposit had occurred pursuant to Section 8.02 or 8.03 hereof until
such time as the Trustee or Paying Agent is permitted to apply all such money in
accordance with Section 8.02 or 8.03 hereof, as the case may be; provided,
however, that, if the Company or any Guarantor makes any payment of principal
of, or premium, if any, interest or Additional Interest, if any, on any Note
following the reinstatement of its obligations, the Company or such Guarantor
will be subrogated to the rights of the Holders of such Notes to receive such
payment from the money held by the Trustee or Paying Agent.
ARTICLE 9.
AMENDMENT, SUPPLEMENT AND WAIVER
Section 9.01 Without Consent of Holders of Notes.
Notwithstanding Section 9.02 of this Indenture, the Company, the
Guarantors and the Trustee may amend or supplement this Indenture or the Notes
without the consent of any Holder of a Note:
(1) to cure any ambiguity, defect or inconsistency;
(2) to provide for uncertificated Notes in addition to or in
place of certificated Notes;
(3) to provide for the assumption of the Company's or a
Guarantor's obligations to the Holders by a successor to the Company or
such Guarantor pursuant to Article 5 or Article 10 hereof;
respectively;
(4) to make any change that would provide any additional
rights or benefits to the Holders or that does not adversely affect in
any material respect the legal rights hereunder of any Holder;
(5) to provide any security for, any guarantees of or any
additional obligors on the Notes or the Note Guarantees, or to confirm
and evidence the release, termination or discharge of any such security
or guarantee when such release, termination or discharge is permitted
by this Indenture;
(6) to comply with requirements of the SEC in order to effect
or maintain the qualification of this Indenture under the TIA; or
78
(7) to conform the text of this Indenture or the Notes to any
provision in the Offering Circular in the section "Description of
Notes" to the extent that such provision in the "Description of Notes"
was intended to be a substantially verbatim recitation of a provision
of this Indenture, the Note Guarantees or the Notes.
Upon the request of the Company accompanied by a Board Resolution
authorizing the execution of any such amended or supplemental Indenture, and
upon receipt by the Trustee of the documents described in Section 9.06 hereof,
the Trustee will join with the Company and the Guarantors in the execution of
any amended or supplemental Indenture authorized or permitted by the terms of
this Indenture and to make any further appropriate agreements and stipulations
that may be therein contained, but the Trustee will not be obligated to enter
into such amended or supplemental Indenture that affects its own rights, duties
or immunities under this Indenture or otherwise, in which case the Trustee may
in its discretion, but will not be obligated to, enter into such amended or
supplemental Indenture.
Section 9.02 With Consent of Holders of Notes.
Except as provided below in this Section 9.02, the Company, the
Guarantors and the Trustee may amend or supplement this Indenture (including,
without limitation, Section 3.09, 4.10 and 4.14 hereof), the Note Guarantees and
the Notes with the consent of the Holders of at least a majority in principal
amount of the Notes then outstanding as a single class (including, without
limitation, consents obtained in connection with a tender offer or exchange
offer for, or purchase of, the Notes).
Upon the request of the Company accompanied by a Board Resolution
authorizing the execution of any such amended or supplemental Indenture, and
upon the filing with the Trustee of evidence satisfactory to the Trustee of the
consent of the Holders of Notes as aforesaid, and upon receipt by the Trustee of
the documents described in Section 9.06 hereof, the Trustee will join with the
Company in the execution of such amended or supplemental Indenture unless such
amended or supplemental Indenture directly affects the Trustee's own rights,
duties or immunities under this Indenture or otherwise, in which case the
Trustee may in its discretion, but will not be obligated to, enter into such
amended or supplemental Indenture.
It is not be necessary for the consent of the Holders of Notes under
this Section 9.02 to approve the particular form of any proposed amendment,
supplement or waiver, but it shall be sufficient if such consent approves the
substance thereof.
After an amendment, supplement or waiver under this Section 9.02
becomes effective, the Company will mail to the Holders of Notes affected
thereby a notice briefly describing the amendment, supplement or waiver. Any
failure of the Company to mail such notice, or any defect therein, will not,
however, in any way impair or affect the validity of any such amended or
supplemental Indenture or waiver. The Holders of a majority in aggregate
principal amount of the Notes then outstanding voting as a single class may
waive compliance in a particular instance by the Company with any provision of
this Indenture or the Notes (including, without limitation, waivers obtained in
connection with a tender offer or exchange offer for, or purchases of, Notes or
a solicitation of consents in respect of Notes). However, without the consent of
each Holder affected, an amendment, supplement or waiver under this Section 9.02
may not (with respect to any Notes held by a non-consenting Holder):
(1) reduce the percentage of principal amount of Notes whose
Holders must consent to an amendment, supplement or waiver;
79
(2) reduce, or change the Stated Maturity of, the principal of
any Note, change the date on which any of the Notes may be subject to
redemption or repurchase or reduce the redemption or repurchase price
of the Notes;
(3) reduce the rate of or change the time for payment of
interest on any Note;
(4) waive a Default or Event of Default in the payment of
principal of, or premium, if any, interest or Additional Interest, if
any, on, the Notes (except a rescission of acceleration of the Notes by
the Holders of at least a majority in aggregate principal amount of the
Notes and a waiver of the payment default that resulted from such
acceleration);
(5) make any Note payable in money other than that stated in
the Notes;
(6) make any change in the provisions of this Indenture
relating to waivers of past Defaults or Events of Default or the rights
of Holders to receive payments of principal of, or premium, if any,
interest or Additional Interest, if any, on the Notes;
(7) waive a redemption payment with respect to any Note (other
than a payment required by Sections 3.09, 4.10 or 4.14 hereof);
(8) release any Guarantor from any of its obligations under
its Note Guarantee or this Indenture, except in accordance with the
terms of this Indenture; or
(9) make any change in Section 6.04 or 6.07 hereof or in this
sentence of Section 9.02.
Section 9.03 Compliance with Trust Indenture Act.
Every amendment or supplement to this Indenture or the Notes will be
set forth in a amended or supplemental Indenture that complies with the TIA as
then in effect.
Section 9.04 Revocation and Effect of Consents.
Until an amendment, supplement or waiver becomes effective, a consent
to it by a Holder of a Note is a continuing consent by such Holder and every
subsequent Holder of a Note or portion of a Note that evidences the same debt as
the consenting Holder's Note, even if notation of the consent is not made on any
Note. However, any such Holder or subsequent Holder may revoke the consent as to
its Note if the Trustee receives written notice of revocation before a date and
time therefor identified by the Company in a notice furnished to such Holder in
accordance with the terms of this Indenture or, if no such date and time shall
be identified, the date the amendment, supplement or waiver becomes effective.
An amendment, supplement or waiver becomes effective in accordance with its
terms and thereafter binds every Holder.
The Company may, but shall not be obligated to, fix a record date
(which need not comply with TIA Section 316(c)) for the purpose of determining
the Holders entitled to consent to any amendment, supplement or waiver or to
take any other action under this Indenture. If a record date is fixed, then
notwithstanding the provisions of the immediately preceding paragraph, those
Persons who were Holders at such record date (or their duly designated proxies),
and only those Persons, shall be entitled to consent to such amendment,
supplement or waiver or to revoke any consent previously given, whether or not
such Persons continue to be Holders after such record date. No consent shall be
valid or effective for more than 90 days after such record date unless consents
from Holders of the principal amount of Notes
80
required hereunder for such amendment, supplement or waiver to be effective
shall have also been given and not revoked within such 90-day period.
After an amendment, supplement or waiver becomes effective, it shall
bind every Holder, unless it is of the type described in any of clauses (1)
through (9) of Section 9.02 hereof. In such case, the amendment, supplement or
waiver shall bind each Holder who has consented to it and every subsequent
Holder that evidences the same debt as the consenting Holder's Note.
Section 9.05 Notation on or Exchange of Notes.
If an amendment or supplement changes the terms of a Note, the Company
may require the Holder of such Note to deliver such Note to the Trustee. The
Trustee may place an appropriate notation about an amendment, supplement or
waiver on any Note thereafter authenticated. The Company, in exchange for all
Notes, may issue and the Trustee shall, upon receipt of an Authentication Order,
authenticate new Notes that reflect the amendment, supplement or waiver.
Failure to make the appropriate notation or issue a new Note will not
affect the validity and effect of such amendment, supplement or waiver.
Section 9.06 Trustee to Sign Amendments, etc.
The Trustee will sign any amended or supplemental Indenture authorized
pursuant to this Article 9 if the amendment or supplement does not adversely
affect the rights, duties, liabilities or immunities of the Trustee. If it does,
the Trustee may, but need not sign it. In executing any amended or supplemental
Indenture, the Trustee will be entitled to receive and (subject to Section 7.01
hereof) will be fully protected in relying upon, in addition to any documents
required by Section 12.04 hereof, an Officers' Certificate and an Opinion of
Counsel stating that the execution of such amended or supplemental Indenture is
authorized or permitted by this Indenture.
ARTICLE 10.
NOTE GUARANTEES
Section 10.01 Guarantee.
(a) Subject to this Article 10, each of the Guarantors hereby, jointly
and severally, unconditionally guarantees to each Holder of a Note authenticated
and delivered by the Trustee and to the Trustee and its successors and assigns,
irrespective of the validity and enforceability of this Indenture, the Notes or
the obligations of the Company hereunder or thereunder, that:
(1) the principal of, and premium, if any, interest and
Additional Interest, if any, on the Notes will be promptly paid in full
when due, whether at maturity, by acceleration, redemption or
otherwise, and interest on the overdue principal of and interest on the
Notes, if any, if lawful, and all other payment obligations of the
Company to the Holders or the Trustee hereunder or thereunder will be
promptly paid in full or performed, all in accordance with the terms
hereof and thereof; and
(2) in case of any extension of time of payment or renewal of
any Notes or any of such other payment obligations, that same will be
promptly paid in full when due or performed in accordance with the
terms of the extension or renewal, whether at stated maturity, by
acceleration or otherwise.
81
Failing payment when due of any amount so guaranteed or any performance
so guaranteed for whatever reason, the Guarantors will be jointly and severally
obligated to pay the same immediately. Each Guarantor agrees that this is a
guarantee of payment and not a guarantee of collection.
(b) The Guarantors hereby agree that their obligations hereunder will
be, to the extent permitted by law, unconditional, irrespective of the validity,
regularity or enforceability of the Notes or this Indenture, the absence of any
action to enforce the same, any waiver or consent by any Holder with respect to
any provisions hereof or thereof, the recovery of any judgment against the
Company, any action to enforce the same or any other circumstance which might
otherwise constitute a legal or equitable discharge or defense of a guarantor.
To the extent permitted by law, each Guarantor hereby waives diligence,
presentment, demand of payment, filing of claims with a court in the event of
insolvency or bankruptcy of the Company, any right to require a proceeding first
against the Company, protest, notice and all demands whatsoever and, subject to
Article 8, covenant that this Note Guarantee will not be discharged except by
complete performance of the obligations contained in the Notes and this
Indenture.
(c) If any Holder or the Trustee is required by any court or otherwise
to return to the Company, the Guarantors or any custodian, trustee, liquidator
or other similar official acting in relation to either the Company or the
Guarantors, any amount paid by either the Company or any Guarantor to the
Trustee or such Holder, this Note Guarantee, to the extent theretofore
discharged, will be reinstated in full force and effect.
(d) Each Guarantor agrees that it will not be entitled to any right of
subrogation in relation to the Holders in respect of any obligations guaranteed
hereby until payment in full of all obligations guaranteed hereby. Each
Guarantor further agrees that, as between the Guarantors, on the one hand, and
the Holders and the Trustee, on the other hand, (1) the maturity of the
obligations guaranteed hereby may be accelerated as provided in Article 6 hereof
for the purposes of this Note Guarantee, notwithstanding any stay, injunction or
other prohibition preventing such acceleration in respect of the obligations
guaranteed hereby, and (2) in the event of any declaration of acceleration of
such obligations as provided in Article 6 hereof, such obligations (whether or
not due and payable) will forthwith become due and payable by the Guarantors for
the purpose of this Note Guarantee. The Guarantors will have the right to seek
contribution from any non-paying Guarantor so long as the exercise of such right
does not impair the rights of the Holders under the Note Guarantee.
(e) In the event of a default in the payment of principal of, or
premium, if any, interest or Additional Interest, if any, on any Note when and
as the same shall become due, whether at maturity, by acceleration, redemption
or otherwise, or in the event of a default in the payment of any interest on the
overdue principal of or interest on such Note, if any, if lawful, or any other
payment obligation of the Company to the Holder of such Note or the Trustee
hereunder or thereunder, each of the Trustee and such Holder shall have the
right to proceed first and directly against a Guarantor under this Indenture
without first proceeding against the Company or exhausting any other remedies
which the Trustee or such Holder may have and without resorting to any other
security held by it.
(f) The Trustee shall have the right, power and authority to do all
things it deems necessary or advisable to enforce the provisions of this
Indenture relating to the Note Guarantee and to protect the interests of the
Holders of the Notes and, in the event of a default in the payment of principal
of, or premium, if any, interest or Additional Interest, if any, on any Note
when and as the same shall become due, whether at maturity, by acceleration,
redemption or otherwise, or in the event of a default in the payment of any
interest on the overdue principal of or interest on such Note, if any, if
lawful, or any other payment obligation of the Company to the Holder of such
Note or the Trustee hereunder or thereunder, the Trustee may institute or appear
in such appropriate judicial proceedings as the Trustee shall deem most
effectual to protect and enforce any of its rights and the rights of the
Holders, whether for the
82
specific enforcement of any covenant or agreement in this Indenture relating to
the Note Guarantee or in aid of the exercise of any power granted herein, or to
enforce any other proper remedy. Without limiting the generality of the
foregoing, in the event of a default in the payment of principal of, or premium,
if any, interest or Additional Interest, if any, on any Note when due, the
Trustee may institute a judicial proceeding for the collection of the sums so
due and unpaid, and may prosecute such proceeding to judgment or final decree,
and may enforce the same against a Guarantor and collect the moneys adjudged or
decreed to be payable in the manner provided by law out of the property of such
Guarantor, wherever situated.
Section 10.02 Limitation on Guarantor Liability.
Each Guarantor, and by its acceptance of Notes, each Holder, hereby
confirms that it is the intention of all such parties that the Note Guarantee of
such Guarantor not constitute a fraudulent transfer or conveyance for purposes
of Bankruptcy Law, the Uniform Fraudulent Conveyance Act, the Uniform Fraudulent
Transfer Act or any similar federal or state law to the extent applicable to any
Note Guarantee. To effectuate the foregoing intention, the Trustee, the Holders
and each Guarantor hereby irrevocably agree that the obligations of such
Guarantor will be limited to the maximum amount that will, after giving effect
to such maximum amount and all other contingent and fixed liabilities of such
Guarantor that are relevant under such laws, and after giving effect to any
collections from, rights to receive contribution from or payments made by or on
behalf of any other Guarantor in respect of the obligations of such other
Guarantor under this Article 10, result in the obligations of such Guarantor
under its Note Guarantee not constituting a fraudulent transfer or conveyance.
Section 10.03 Execution and Delivery of Note Guarantee.
To evidence its Note Guarantee set forth in Section 10.01, each
Guarantor hereby agrees that a notation of such Note Guarantee substantially in
the form attached as Exhibit E hereto will be endorsed by an Officer of such
Guarantor on each Note authenticated and delivered by the Trustee and that this
Indenture will be executed on behalf of such Guarantor by one of its Officers.
Each Guarantor hereby agrees that its Note Guarantee set forth in
Section 10.01 will remain in full force and effect notwithstanding any failure
to endorse on each Note a notation of such Note Guarantee.
If an Officer whose signature is on this Indenture or on the Note
Guarantee no longer holds that office at the time the Trustee authenticates the
Note on which a Note Guarantee is endorsed, the Note Guarantee will be valid
nevertheless.
The delivery of any Note by the Trustee, after the authentication
thereof hereunder, will constitute due delivery of the Note Guarantee set forth
in this Indenture on behalf of the Guarantors.
In the event that the Company creates or acquires any Domestic
Subsidiary after the date of this Indenture, if required by Section 4.17 hereof,
the Company will cause such Domestic Subsidiary to comply with the provisions of
Section 4.17 hereof and this Article 10, to the extent applicable.
Section 10.04 Guarantors May Consolidate, etc., on Certain Terms.
(a) Except as otherwise provided in Section 10.05, no Guarantor may
sell or otherwise dispose of all or substantially all of its assets to, or
consolidate with or merge with or into (whether or not such Guarantor is the
surviving Person) another Person, other than the Company or another Guarantor,
unless:
83
(1) immediately after giving effect to such transaction, no
Default or Event of Default exists; and
(2) either:
(i) the Person acquiring the property in any such
sale or disposition or the Person formed by or surviving any such
consolidation or merger (in each case if other than the Guarantor)
assumes all the obligations of that Guarantor under this Indenture and
its Note Guarantee pursuant to a supplemental indenture satisfactory to
the Trustee and under the Registration Rights Agreement; or
(ii) if applicable, the Net Proceeds of such sale or
other disposition are applied in accordance with the applicable
provisions of this Indenture, including, without limitation, Section
4.10 hereof.
(b) Upon any consolidation or merger, or any sale or other disposition
of all or substantially all of the assets of, a Guarantor in a transaction that
is subject to, and that complies with the provisions of, Section 10.04(a)
hereof, the successor Person formed by such consolidation or into or with which
such Guarantor is merged or to which such sale or other disposition is made
shall succeed to, and be substituted for (so that from and after the date of
such consolidation, merger, sale, lease, conveyance or other disposition, the
provisions of this Indenture referring to the applicable "Guarantor" shall refer
instead to the successor Person and not to such Guarantor), and may exercise
every right and power of such Guarantor under this Indenture and its Note
Guarantee with the same effect as if such successor Person had been named as a
Guarantor herein and the predecessor Guarantor shall be released from all
obligations under this Indenture and its Note Guarantee. Such successor Person
thereupon may cause to be signed any or all of the Note Guarantees to be
endorsed upon all of the Notes issuable hereunder which theretofore shall not
have been signed by the Company and delivered to the Trustee. All the Note
Guarantees so issued will in all respects have the same legal rank and benefit
under this Indenture as the Note Guarantees theretofore and thereafter issued in
accordance with the terms of this Indenture as though all of such Note
Guarantees had been issued at the date of the execution hereof.
Except as set forth in Articles 4 and 5 hereof, and notwithstanding
Section 10.04(a)(2) and (b) hereof, nothing contained in this Indenture or in
any of the Notes will prevent any consolidation or merger of a Guarantor with or
into the Company or another Guarantor, or will prevent any sale or other
disposition of all or substantially all of the assets of a Guarantor to the
Company or another Guarantor.
Section 10.05 Releases Following Sale of Assets.
In the event of any sale or other disposition of all or substantially
all of the assets of any Guarantor, by way of merger, consolidation or
otherwise, or a sale or other disposition of all of the Capital Stock of any
Guarantor, in each case, to a Person that is not (either before or after giving
effect to such transactions) the Company or a Restricted Subsidiary of the
Company, then such Guarantor (in the event of a sale or other disposition, by
way of merger, consolidation or otherwise, of all of the Capital Stock of such
Guarantor) or the Person acquiring the property (in the event of a sale or other
disposition of all or substantially all of the assets of such Guarantor) will be
released and relieved of any obligations under its Note Guarantee; provided that
the Net Proceeds of such sale or other disposition are applied in accordance
with the applicable provisions of this Indenture, including without limitation
Section 4.10 hereof. Upon delivery by the Company to the Trustee of an Officers'
Certificate and an Opinion of Counsel to the effect that such sale or other
disposition was made by the Company in accordance with the provisions of this
Indenture, including without limitation Section 4.10 hereof, the Trustee will
execute
84
any documents reasonably required in order to evidence the release of any
Guarantor from its obligations under its Note Guarantee.
Any Guarantor not released from its obligations under its Note
Guarantee will remain liable for the full amount of principal of and interest on
the Notes and for the other obligations of any Guarantor under this Indenture to
the extent provided in this Article 10.
ARTICLE 11.
SATISFACTION AND DISCHARGE
Section 11.01 Satisfaction and Discharge.
This Indenture will be discharged and will cease to be of further
effect as to all Notes and Note Guarantees issued hereunder, when:
(1) either:
(a) all Notes that have been authenticated (except
lost, stolen or destroyed Notes that have been replaced or paid and
Notes for whose payment money has been deposited in trust and
thereafter repaid to the Company or discharged from that trust) have
been delivered to the Trustee for cancellation; or
(b) all Notes that have not been delivered to the
Trustee for cancellation have become due and payable by reason of the
mailing of a notice of redemption or otherwise or will become due and
payable within one year and the Company or any Guarantor has
irrevocably deposited or caused to be deposited with the Trustee as
trust funds in trust solely for the benefit of the Holders, cash in
U.S. dollars, non-callable Government Securities, or a combination of
both, in such amounts as will be sufficient with consideration of any
reinvestment of interest, to pay and discharge the entire indebtedness
on the Notes not delivered to the Trustee for cancellation for the
principal of, and premium, if any, interest and Additional Interest, if
any, to the date of maturity or redemption;
(2) no Default or Event of Default has occurred and is
continuing on the date of such deposit or will occur as a result of
such deposit (other than a Default or Event of Default resulting from
the borrowing of funds to be applied to such deposit) and such deposit
will not result in a breach or violation of, or constitute a default
under, any other instrument to which the Company or any Guarantor is a
party or by which the Company or any Guarantor is bound;
(3) the Company or any Guarantor has paid or caused to be paid
all sums payable by it under this Indenture; and
(4) the Company has delivered irrevocable instructions to the
Trustee under this Indenture to apply the deposited money toward the
payment of the Notes at maturity or the redemption date, as the case
may be.
In addition, the Company must deliver an Officers' Certificate and an Opinion of
Counsel to the Trustee stating that all conditions precedent to satisfaction and
discharge have been satisfied.
Notwithstanding the satisfaction and discharge of this Indenture, if
money has been deposited with the Trustee pursuant to subclause (b) of clause
(1) of this Section 11.01, the provisions of Section 11.02 and Section 8.06 will
survive. In addition, nothing in this Section 11.01 will be deemed to
85
discharge those provisions of Section 7.07 hereof, that, by their terms, survive
the satisfaction and discharge of this Indenture.
Section 11.02 Application of Trust Money.
Subject to the provisions of Section 8.06, all money and non-callable
Government Securities (including the proceeds therefrom) deposited with the
Trustee pursuant to Section 11.01 shall be held in trust and applied by it, in
accordance with the provisions of the Notes and this Indenture, to the payment,
either directly or through any Paying Agent (including the Company or any of its
Domestic Subsidiaries acting as Paying Agent) as the Trustee may determine, to
the Persons entitled thereto, of the principal (and premium, if any) and
interest for whose payment such money has been deposited with the Trustee; but
such money need not be segregated from other funds except to the extent required
by law.
If the Trustee or Paying Agent is unable to apply any money or
Government Securities in accordance with Section 11.01 by reason of any legal
proceeding or by reason of any order or judgment of any court or governmental
authority enjoining, restraining or otherwise prohibiting such application, the
Company's and any Guarantor's obligations under this Indenture and the Notes and
the Note Guarantees shall be revived and reinstated as though no deposit had
occurred pursuant to Section 11.01 until such time as the Trustee or Paying
Agent is permitted to apply all such money in accordance with Section 11.01;
provided that if the Company or any Guarantor has made any payment of principal
of, or premium, if any, interest or Additional Interest, if any, on any Notes
following the reinstatement of its obligations, the Company or such Guarantor
shall be subrogated to the rights of the Holders of such Notes to receive such
payment from the money or Government Securities held by the Trustee or Paying
Agent.
ARTICLE 12.
MISCELLANEOUS
Section 12.01 Trust Indenture Act Controls.
If any provision of this Indenture limits, qualifies or conflicts with
the duties imposed by TIA Section 318(c), the imposed duties will control.
Section 12.02 Notices.
Any notice or communication by the Company, any Guarantor or the
Trustee to the others is duly given if in writing and delivered in Person or
mailed by first class mail (registered or certified, return receipt requested),
telex, telecopier, electronic message or overnight air courier guaranteeing next
day delivery, to the others' address:
If to the Company or any Guarantor:
Westlake Chemical Corporation
2801 Post Oak Boulevard
Houston, Texas 77056
Telecopier No.: (713) 629-6239
Attention: Vice President, Legal
Email: Ltrenchard@westlakegroup.com
86
With a copy to:
Baker Botts L.L.P.
One Shell Plaza
910 Louisiana Street
Houston, Texas 77002
Telecopier No.: (713) 229-1522
Attention: J. David Kirkland, Jr.
Email: David.Kirkland@bakerbotts.com
If to the Trustee:
JPMorgan Chase Bank
600 Travis Street, Suite 1150
Houston, Texas 77002
Telecopier No.: (713) 577-5200
Attention: Frank W. McCreary
Email: Frank.W.McCreary@jpmorgan.com
The Company, any Guarantor or the Trustee, by notice to the others, may
designate additional or different addresses for subsequent notices or
communications.
All notices and communications (other than those sent to Holders) will
be deemed to have been duly given: at the time delivered by hand, if personally
delivered; five Business Days after being deposited in the mail, postage
prepaid, if mailed; when answered back, if telexed; at the time sent, if sent
during normal business hours, or the following business day, if sent outside of
normal business hours, if telecopied or sent by electronic message; and the next
Business Day after timely delivery to the courier, if sent by overnight air
courier guaranteeing next day delivery.
Any notice or communication to a Holder will be mailed by first class
mail, certified or registered, return receipt requested, or by overnight air
courier guaranteeing next day delivery to its address shown on the register kept
by the Registrar. Any notice or communication will also be so mailed to any
Person described in TIA Section 313(c), to the extent required by the TIA.
Failure to mail a notice or communication to a Holder or any defect in it will
not affect its sufficiency with respect to other Holders.
If a notice or communication is mailed in the manner provided above
within the time prescribed, it is duly given, whether or not the addressee
receives it.
If the Company mails a notice or communication to Holders, it will mail
a copy to the Trustee and each Agent at the same time.
All notices or communications, including without limitation notices to
the Trustee, the Company or a Guarantor by Holders, shall be in writing, except
as otherwise set forth herein.
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 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 12.03 Communication by Holders of Notes with Other Holders of Notes.
Holders may communicate pursuant to TIA Section 312(b) with other
Holders with respect to their rights under this Indenture or the Notes. The
Company, the Trustee, the Registrar and anyone else shall have the protection of
TIA Section 312(c).
87
Section 12.04 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 in form and substance reasonably
satisfactory to the Trustee (which must include the statements set
forth in Section 12.05 hereof) stating that, in the opinion of the
signers, all conditions precedent and covenants, if any, provided for
in this Indenture relating to the proposed action have been complied
with; and
(2) an Opinion of Counsel in form and substance reasonably
satisfactory to the Trustee (which must include the statements set
forth in Section 12.05 hereof) stating that, in the opinion of such
counsel, all such conditions precedent and covenants have been complied
with.
Section 12.05 Statements Required in Certificate or Opinion.
Each certificate or opinion with respect to compliance with a condition
or covenant provided for in this Indenture (other than a certificate provided
pursuant to TIA Section 314(a)(4)) must comply with the provisions of TIA
Section 314(e) and must include:
(1) a statement that the Person making such certificate or
opinion has read such covenant or condition;
(2) a brief statement as to the nature and scope of the
examination or investigation upon which the statements or opinions
contained in such certificate or opinion are based;
(3) a statement that, in the opinion of such Person, he or she
has made such examination or investigation as is necessary to enable
him or her to express an informed opinion as to whether or not such
covenant or condition has been complied with; and
(4) a statement as to whether or not, in the opinion of such
Person, such condition or covenant has been complied with.
Section 12.06 Rules by Trustee and Agents.
The Trustee may make reasonable rules for action by or at a meeting of
Holders. The Registrar or Paying Agent may make reasonable rules and set
reasonable requirements for its functions.
Section 12.07 No Personal Liability of Directors, Officers, Employees and
Stockholders.
No past, present or future director, officer, employee, incorporator or
stockholder of the Company or any Guarantor, as such, will have any liability
for any obligations of the Company or the Guarantors under the Notes, this
Indenture or the Note Guarantees or for any claim based on, in respect of, or by
reason of, such obligations or their creation. Each Holder by accepting a Note
waives and releases all such liability. The waiver and release are part of the
consideration for issuance of the Notes. The waiver may not be effective to
waive liabilities under the federal securities laws.
Section 12.08 Governing Law.
THE INTERNAL LAW OF THE STATE OF NEW YORK WILL GOVERN AND BE USED TO
CONSTRUE THIS INDENTURE, THE NOTES AND THE NOTE GUARANTEES WITHOUT
88
GIVING EFFECT TO APPLICABLE PRINCIPLES OF CONFLICTS OF LAW TO THE EXTENT THAT
THE APPLICATION OF THE LAWS OF ANOTHER JURISDICTION WOULD BE REQUIRED THEREBY.
Section 12.09 No Adverse Interpretation of Other Agreements.
This Indenture may not be used to interpret any other indenture, loan
or debt agreement of the Company or its Subsidiaries or of any other Person. Any
such indenture, loan or debt agreement may not be used to interpret this
Indenture.
Section 12.10 Successors.
All agreements of the Company in this Indenture and the Notes will bind
its successors. All agreements of the Trustee in this Indenture will bind its
successors. All agreements of each Guarantor in this Indenture will bind its
successors, except as otherwise provided in Section 10.05.
Section 12.11 Severability.
In case any provision in this Indenture or in the Notes is invalid,
illegal or unenforceable, the validity, legality and enforceability of the
remaining provisions will not in any way be affected or impaired thereby.
Section 12.12 Counterpart Originals.
The parties may sign any number of copies of this Indenture. Each
signed copy will be an original, but all of them together represent the same
agreement.
Section 12.13 Table of Contents, Headings, etc.
The Table of Contents, Cross-Reference Table and Headings of the
Articles and Sections of this Indenture have been inserted for convenience of
reference only, are not to be considered a part of this Indenture and will in no
way modify or restrict any of the terms or provisions hereof.
[Signatures on following page]
89
IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be
duly executed as of the day and year first above written.
WESTLAKE CHEMICAL CORPORATION
By: /s/ Albert Chao
---------------------------------------------
Name: Albert Chao
Title: President
GUARANTORS:
GEISMAR HOLDINGS, INC.
GEISMAR VINYLS COMPANY LP,
BY GVGP, INC., ITS GENERAL PARTNER
GRAMERCY CHLOR-ALKALI CORPORATION
GVGP, INC.
NORTH AMERICAN PIPE CORPORATION
NORTH AMERICAN PROFILES, INC.
VAN BUREN PIPE CORPORATION
WESTECH BUILDING PRODUCTS, INC.
WESTLAKE CHEMICAL HOLDINGS, INC.
WESTLAKE CHEMICAL INVESTMENTS, INC.
WESTLAKE CHEMICAL MANUFACTURING, INC.
WESTLAKE CHEMICAL PRODUCTS, INC.
WESTLAKE DEVELOPMENT CORPORATION
WESTLAKE MANAGEMENT SERVICES, INC.
WESTLAKE OLEFINS CORPORATION
WESTLAKE OVERSEAS CORPORATION
WESTLAKE PETROCHEMICALS LP,
BY WESTLAKE CHEMICAL INVESTMENTS, INC., ITS
GENERAL PARTNER
WESTLAKE POLYMERS LP,
BY WESTLAKE CHEMICAL INVESTMENTS, INC., ITS
GENERAL PARTNER
WESTLAKE PVC CORPORATION
WESTLAKE RESOURCES CORPORATION
WESTLAKE STYRENE LP,
BY WESTLAKE CHEMICAL HOLDINGS, INC., ITS
GENERAL PARTNER
WESTLAKE VINYL CORPORATION
WESTLAKE VINYLS, INC.
WPT LP,
BY WESTLAKE CHEMICAL HOLDINGS, INC., ITS
GENERAL PARTNER
By: /s/ Tai-Li Keng
---------------------------------------------
Name: Tai-Li Keng
Title: Vice President
90
JPMORGAN CHASE BANK, as Trustee
By: /s/ Frank W. McCreary
---------------------------------------------
Authorized Signatory
91
SCHEDULE I
GUARANTORS
The following schedule lists each Guarantor under the Indenture as of
the date of the Indenture:
GEISMAR HOLDINGS, INC.
GEISMAR VINYLS COMPANY LP
GRAMERCY CHLOR-ALKALI CORPORATION
GVGP, INC.
NORTH AMERICAN PIPE CORPORATION
NORTH AMERICAN PROFILES, INC.
VAN BUREN PIPE CORPORATION
WESTECH BUILDING PRODUCTS, INC.
WESTLAKE CHEMICAL HOLDINGS, INC.
WESTLAKE CHEMICAL INVESTMENTS, INC.
WESTLAKE CHEMICAL MANUFACTURING, INC.
WESTLAKE CHEMICAL PRODUCTS, INC.
WESTLAKE DEVELOPMENT CORPORATION
WESTLAKE MANAGEMENT SERVICES, INC.
WESTLAKE OLEFINS CORPORATION
WESTLAKE OVERSEAS CORPORATION
WESTLAKE PETROCHEMICALS LP
WESTLAKE POLYMERS LP
WESTLAKE PVC CORPORATION
WESTLAKE RESOURCES CORPORATION
WESTLAKE STYRENE LP
WESTLAKE VINYL CORPORATION
WESTLAKE VINYLS, INC.
WPT LP
I-1
EXHIBIT A1
[Face of Note]
- --------------------------------------------------------------------------------
[144A GLOBAL NOTE]
[IAI GLOBAL NOTE]
[REGULATION S PERMANENT GLOBAL NOTE]
CUSIP ____________
8 3/4% Senior Notes due 2011
No. ___ $____________
WESTLAKE CHEMICAL CORPORATION
promises to pay to______________________________________________________________
or registered assigns,
the principal sum of____________________________________________________Dollars,
[or such greater or lesser amount as indicated on the Schedule of Exchanges of
Interests in the Global Note,]* on July 15, 2011.
Interest Payment Dates: January 15 and July 15
Record Dates: January 1 and July 1
Dated: July 31, 2003
WESTLAKE CHEMICAL CORPORATION
By:_____________________________________
Name:
Title:
By:_____________________________________
Name:
Title:
This is one of the Notes referred to
in the within-mentioned Indenture:
JPMORGAN CHASE BANK,
as Trustee
By:____________________________________
Authorized Signatory
- --------------------------------------------------------------------------------
* This notation shall be included only if the Note is issued in global form.
A1-1
[Back of Note]
8 3/4% Senior Notes due 2011
[Insert the Global Note Legend, if applicable pursuant to the provisions of the
Indenture]
[Insert the Private Placement Legend, if applicable pursuant to the provisions
of the Indenture]
This Note is one of a duly authorized issue of 8-3/4% Senior Notes due
2011 of Westlake Chemical Corporation, a Delaware corporation (the "Company").
Capitalized terms used herein have the meanings assigned to them in the
Indenture referred to below unless otherwise indicated.
(1) INTEREST. The Company promises to pay interest on the
principal amount of this Note at 8-3/4% per annum from July 31, 2003
until maturity and shall pay the Additional Interest, if any, payable
pursuant to Section 6 of the Registration Rights Agreement referred to
below. The Company will pay interest and Additional Interest, if any,
semi-annually in arrears on January 15 and July 15 of each year, or if
any such day is not a Business Day, on the next succeeding Business Day
(each, an "Interest Payment Date"). 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 July 31, 2003; provided that if there is
no existing Default in the payment of interest, and if this Note is
authenticated between a record date referred to on the face hereof and
the next succeeding Interest Payment Date, interest shall accrue from
such next succeeding Interest Payment Date; provided, further, that the
first Interest Payment Date shall be January 15, 2004. The Company will
pay interest (including post-petition interest in any proceeding under
any Bankruptcy Law) on overdue principal and premium, if any, from time
to time at a rate that is 1% per annum in excess of the interest rate
then in effect to the extent lawful; it will pay interest (including
post-petition interest in any proceeding under any Bankruptcy Law) on
overdue installments of interest and Additional Interest, if any
(without regard to any applicable grace periods) from time to time at
the same rate to the extent lawful. Interest will be computed on the
basis of a 360-day year of twelve 30-day months.
(2) METHOD OF PAYMENT. The Company will pay interest on the
Notes (except defaulted interest) and Additional Interest, if any, to
the Persons who are registered Holders of Notes at the close of
business on the January 1 or July 1 next preceding the Interest Payment
Date, even if such Notes are canceled after such record date and on or
before such Interest Payment Date, except as provided in Section 2.12
of the Indenture with respect to defaulted interest. The Notes will be
payable as to principal and premium, if any, interest and Additional
Interest, if any, at the office or agency of the Company maintained for
such purpose within the City and State of New York, or, at the option
of the Company, payment of interest and Additional Interest, if any,
may be made by check mailed to the Holders at their addresses set forth
in the register of Holders maintained by the Registrar; provided that
payment by wire transfer of immediately available funds will be
required with respect to principal of, and premium, if any, interest
and Additional Interest, if any, on all Global Notes and any other
Notes with any aggregate principal amount in excess of $1,000,000 the
Holder of which has provided wire transfer instructions to the Company
or the Paying Agent. Such payment will be in such coin or currency of
the United States of America as at the time of payment is legal tender
for payment of public and private debts.
(3) PAYING AGENT AND REGISTRAR. Initially, JPMorgan Chase
Bank, the Trustee under the Indenture, will act as Paying Agent and
Registrar. The Company may change any
A1-2
Paying Agent or Registrar without notice to any Holder. The Company or
any of its Domestic Subsidiaries may act in any such capacity.
(4) INDENTURE. The Company issued the Notes under an Indenture
dated as of July 31, 2003 (the "Indenture") among the Company, the
Guarantors and the Trustee. The terms of the Notes include those stated
in the Indenture and those made part of the Indenture by reference to
the Trust Indenture Act of 1939, as amended (the "TIA"). The Notes are
subject to all such terms, and Holders are referred to the Indenture
and the TIA for a statement of such terms. To the extent any provision
of this Note conflicts with the express provisions of the Indenture,
the provisions of the Indenture shall govern and be controlling. The
Notes are general unsecured obligations of the Company and are
initially issued in an aggregate principal amount of $380,000,000. The
Company may, subject to the covenants set forth in the Indenture, issue
Additional Notes from time to time without the consent of the Holders.
The Notes initially issued and any Additional Notes subsequently issued
under the Indenture will be treated as a single class for all purposes
of the Indenture, including, without limitation, with respect to
waivers, amendments, supplements, redemptions and offers to purchase.
(5) OPTIONAL REDEMPTION.
(a) Except as set forth in subparagraphs (b) and (c) of this Paragraph
5, the Company will not have the option to redeem the Notes prior to July 15,
2007. On or after July 15, 2007, the Company will have the option to redeem the
Notes, in whole or in part, upon not less than 30 nor more than 60 days' notice,
at the redemption prices (expressed as percentages of principal amount) set
forth below plus accrued and unpaid interest and Additional Interest, if any, on
the Notes redeemed, to the applicable redemption date, if redeemed during the
twelve-month period beginning on July 15 of the years indicated below, subject
to the rights of Holders on the relevant record date to receive interest on the
relevant Interest Payment Date:
Year Percentage
---- ----------
2007............................................ 104.375%
2008............................................ 102.971%
2009............................................ 101.458%
2010 and thereafter............................. 100.000%
(b) Notwithstanding the provisions of subparagraph (a) of this
Paragraph 5, at any time on or prior to July 15, 2007, the Company may on any
one or more occasions redeem up to 35% of the aggregate principal amount of
Notes issued under the Indenture with the net cash proceeds of one or more
Public Equity Offerings at a redemption price equal to 108.75% of the aggregate
principal amount plus accrued and unpaid interest and Additional Interest, if
any, to the redemption date thereof; provided that at least 65% in aggregate
principal amount of the Notes issued under the Indenture remains outstanding
immediately after the occurrence of such redemption and that such redemption
occurs within 60 days of the date of the closing of such Public Equity Offering.
(c) Notwithstanding the provisions of subparagraph (a) of this
Paragraph 5, at any time prior to July 15, 2007, the Company may also redeem all
or a part of the Notes at a redemption price equal to 100% of the principal
amount of Notes redeemed plus the Applicable Premium as of, and accrued and
unpaid interest and Additional Interest, if any, to the redemption date, subject
to the rights of Holders on the relevant record date to receive interest due on
the relevant Interest Payment Date. "Applicable Premium" means, with respect to
any Note on any redemption date, the greater of (1) 1.0% of the principal amount
of the Note or (2) the excess, if any, of (a) the present value on such
redemption date of
A1-3
(i) the redemption price of the note at July 15, 2007 (such redemption price
being set forth in paragraph 5(a)) plus (ii) all required interest payments due
on the Note through July 15, 2007 (excluding accrued but unpaid interest to the
redemption date), computed using a discount rate equal to the Treasury Rate as
of such redemption date plus 50 basis points, over (b) the principal amount of
the Note. "Treasury Rate" means, as of any redemption date, the yield to
maturity as of such redemption date of United States Treasury securities with a
constant maturity (as compiled and published in the most recent Federal Reserve
Statistical Release H.15 (519) that has become publicly available at least two
Business Days prior to the redemption date (or, if such Statistical Release is
no longer published, any publicly available source of similar market data)) most
nearly equal to the period from the redemption date to July 15, 2007; provided,
however, that if the period from the redemption date to July 15, 2007, is less
than one year, the weekly average yield on actually traded United States
Treasury securities adjusted to a constant maturity of one year shall be used.
(6) MANDATORY REDEMPTION.
The Company will not be required to make mandatory redemption or
sinking fund payments with respect to the Notes.
(7) REPURCHASE AT OPTION OF HOLDER.
(a) If there is a Change of Control, the Company will
be required to make an offer (a "Change of Control Offer") to each
Holder to repurchase all or any part (equal to $1,000 or an integral
multiple thereof) of such Holder's Notes at a purchase price equal to
101% of the aggregate principal amount thereof plus accrued and unpaid
interest and Additional Interest, if any on the Notes repurchased, if
any, to the Change of Control Payment Date, subject to the rights of
Holders on the relevant record date to receive interest due on the
relevant Interest Payment Date (the "Change of Control Payment").
Within 30 days following any Change of Control, the Company will mail a
notice to each Holder setting forth the procedures governing the Change
of Control Offer as required by the Indenture.
(b) If the Company or a Restricted Subsidiary
consummates any Asset Sales, within ten days of each date on which the
aggregate amount of Excess Proceeds exceeds $15.0 million, the Company
will commence an offer to all Holders of Notes and all holders of other
Pari Passu Indebtedness containing provisions similar to those set
forth in the Indenture with respect to offers to purchase or redeem
with the proceeds of sales of assets (an "Asset Sale Offer") to
purchase the maximum principal amount of Notes and such other Pari
Passu Indebtedness that may be purchased out of the Excess Proceeds at
an offer price in cash in an amount equal to 100% of the principal
amount thereof plus accrued and unpaid interest and Additional Interest
thereon, if any, to the date of purchase, in accordance with the
procedures set forth in the Indenture. If any Excess Proceeds remain
after consummation of an Asset Sale Offer, the Company may use such
Excess Proceeds for any purpose not otherwise prohibited by the
Indenture. If the aggregate principal amount of Notes and other Pari
Passu Indebtedness tendered into such Asset Sale Offer exceeds the
amount of Excess Proceeds, the Trustee shall select the Notes and such
other Pari Passu Indebtedness to be purchased on a pro rata basis based
on the principal amount of Notes and such other Pari Passu Indebtedness
tendered. Holders of Notes that are the subject of an offer to purchase
will receive an Asset Sale Offer from the Company prior to any related
purchase date and may elect to have such Notes purchased by completing
the form entitled "Option of Holder to Elect Purchase" on the reverse
of this Note and otherwise complying with the procedures set forth in
the Indenture. Upon completion of each Asset Sale Offer, the amount of
Excess Proceeds shall be reset at zero.
A1-4
(8) NOTICE OF REDEMPTION. Notice of redemption will be mailed
at least 30 days but not more than 60 days before the redemption date
to each Holder whose Notes are to be redeemed at its registered
address. Notes in denominations larger than $1,000 may be redeemed in
part but only in whole multiples of $1,000, unless all of the Notes
held by a Holder are to be redeemed. On and after the redemption date
interest ceases to accrue on Notes or portions thereof called for
redemption.
(9) DENOMINATIONS, TRANSFER, EXCHANGE. The Notes are in
registered form without coupons in denominations of $1,000 and integral
multiples of $1,000. The transfer of Notes may be registered and Notes
may be exchanged as provided in the Indenture. The Registrar and the
Trustee may require a Holder, among other things, to furnish
appropriate endorsements and transfer documents and the Company may
require a Holder to pay any taxes and other governmental charges
required by law or permitted by the Indenture. The Company need not
exchange or register the transfer of any Note or portion of a Note
selected for redemption, except for the unredeemed portion of any Note
being redeemed in part. Also, the Company need not exchange or register
the transfer of any Note for a period of 15 days before a selection of
Notes to be redeemed.
(10) PERSONS DEEMED OWNERS. The registered Holder of a Note
may be treated as its owner for all purposes.
(11) AMENDMENT, SUPPLEMENT AND WAIVER. Subject to certain
exceptions and limitations, the Indenture, the Note Guarantees or the
Notes may be amended or supplemented with the consent of the Holders of
at least a majority in principal amount of the then outstanding Notes,
voting as a single class, and any existing default or compliance with
any provision of the Indenture, the Note Guarantees or the Notes may be
waived with the consent of the Holders of a majority in principal
amount of the then outstanding Notes, voting as a single class. Without
the consent of any Holder of a Note, the Indenture or the Notes may be
amended or supplemented to cure any ambiguity, defect or inconsistency,
to provide for uncertificated Notes in addition to or in place of
certificated Notes, to provide for the assumption of the Company's or a
Guarantor's obligations to Holders of the Notes in case of a merger or
consolidation or a transfer of all or substantially all of its assets,
to make any change that would provide any additional rights or benefits
to the Holders of the Notes or that does not adversely affect in any
material respect the legal rights under the Indenture of any such
Holder, to provide any security for, any guarantees of or any
additional obligors on the Notes or the Note Guarantees, or to confirm
and evidence the release, termination or discharge of any such security
or guarantee when such release, termination or discharge is permitted
by this Indenture, to comply with the requirements of the SEC in order
to effect or maintain the qualification of the Indenture under the TIA,
and to conform the text of the Indenture or the Notes to any provision
in the Offering Circular relating to the initial issuance of the Notes
in the section "Description of Notes" to the extent that such provision
in the "Description of Notes" was intended to be a substantially
verbatim recitation of a provision of the Indenture, the Note
Guarantees or the Notes.
Without the consent of each Holder affected, an
amendment, supplement or waiver may not (with respect to any Notes held
by a non-consenting Holder) (1) reduce the percentage of principal
amount of Notes whose Holders must consent to an amendment, supplement
or waiver; (2) reduce, or change the Stated Maturity of, the principal
of any Note, change the date on which any of the Notes may be subject
to redemption or repurchase or reduce the redemption or repurchase
price of the Notes; (3) reduce the rate of or change the time for
payment of interest on any Note; (4) waive a Default or Event of
Default in the payment of principal of, or premium, if any, interest or
Additional Interest, if any, on the Notes (except a
A1-5
rescission of acceleration of the Notes by the Holders of at least a
majority in aggregate principal amount of the Notes and a waiver of the
payment default that resulted from such acceleration); (5) make any
Note payable in money other than that stated in the Notes; (6) make any
change in the provisions of the Indenture relating to waivers of past
Defaults or Events of Default or the rights of Holders to receive
payments of principal of, or premium, if any, interest or Additional
Interest, if any, on the Notes; (7) waive a redemption payment with
respect to any Note (other than a payment required in connection with
an Asset Sale or a Change of Control); (8) release any Guarantor from
any of its obligations under its Note Guarantee or the Indenture,
except in accordance with the terms of the Indenture; or (9) make any
change in certain provisions of the Indenture related to amendments,
supplements and waivers.
(12) DEFAULTS AND REMEDIES. Events of Default include: (i)
default for 30 days in the payment when due of interest or Additional
Interest on the Notes; (ii) default in payment of principal of or
premium, if any, on the Notes when the same becomes due and payable at
maturity, upon redemption or otherwise, (iii) failure by the Company or
any of its Restricted Subsidiaries to comply with Sections 3.09, 4.10,
4.14 or 5.01 of the Indenture; (iv) failure by the Company or any
Guarantor for 60 days after notice to comply with any other covenant or
agreement in the Indenture, or the Notes; (v) default under certain
other agreements relating to Indebtedness of the Company for money
borrowed in excess of $20.0 million which default (a) results in the
acceleration of such Indebtedness prior to its express maturity, or (b)
is caused by a failure to pay principal of, or interest or premium, if
any, on such Indebtedness prior to the expiration of the grace period
provided in such Indebtedness on the date of such default; (vi) certain
final judgments for the payment of money in excess of $20.0 million
that remain undischarged for a period of 60 days; (vii) certain events
of bankruptcy or insolvency with respect to the Company or any
Restricted Subsidiary that is a Significant Subsidiary or any group of
Restricted Subsidiaries that, taken as a whole, would constitute a
Significant Subsidiary and (viii) except as permitted by the Indenture,
any Note Guarantee shall be held in any judicial proceeding to be
unenforceable or invalid or shall cease for any reason to be in full
force and effect or any Guarantor or any Person acting on its behalf
shall deny or disaffirm its obligations under such Guarantor's Note
Guarantee. If any Event of Default occurs and is continuing, the
Trustee or the Holders of at least 25% in principal amount of the then
outstanding Notes may declare all the Notes to be due and payable.
Notwithstanding the foregoing, in the case of an Event of Default
arising from certain events of bankruptcy or insolvency, all
outstanding Notes will become due and payable without further action or
notice. Holders may not enforce the Indenture or the Notes except as
provided in the Indenture. Subject to certain limitations, Holders of a
majority in principal amount of the then outstanding Notes may direct
the Trustee in its exercise of any trust or power. The Trustee may
withhold from Holders of the Notes notice of any continuing Default or
Event of Default (except a Default or Event of Default relating to the
payment of principal, premium, interest or Additional Interest) if it
determines that withholding notice is in their interest. The Holders of
a majority in aggregate principal amount of the Notes then outstanding
by notice to the Trustee may on behalf of the Holders of all of the
Notes waive any existing Default or Event of Default and its
consequences under the Indenture except a continuing Default or Event
of Default in the payment of principal of, or premium, if any, interest
or Additional Interest, if any, on the Notes. The Company is required
to deliver to the Trustee annually a statement regarding compliance
with the Indenture, and the Company is required upon becoming aware of
any Default or Event of Default, to deliver to the Trustee a statement
specifying such Default or Event of Default.
(13) DISCHARGE PRIOR TO MATURITY. The Indenture with respect
to the Notes shall be discharged and canceled upon the payment of all
of the Notes and, subject to Article 8 of the Indenture, shall be
discharged except for certain obligations upon the irrevocable deposit
with the
A1-6
Trustee of any combination of funds and non-callable Government
Obligations sufficient for such payment.
(14) TRUSTEE DEALINGS WITH COMPANY. The Trustee, in its
individual or any other capacity, may make loans to, accept deposits
from, and perform services for the Company, any Guarantor or any of
their respective Affiliates, and may otherwise deal with the Company,
any Guarantor or any such Affiliate, as if it were not the Trustee.
(15) NO RECOURSE AGAINST OTHERS. No past, present or future
director, officer, employee, incorporator or stockholder of the Company
or any of the Guarantors, as such, will have any liability for any
obligations of the Company or such Guarantor under the Notes, the Note
Guarantees or the Indenture or for any claim based on, in respect of,
or by reason of, such obligations or their creation. Each Holder by
accepting a Note waives and releases all such liability. The waiver and
release are part of the consideration for the issuance of the Notes.
(16) AUTHENTICATION. This Note will not be valid until
authenticated by the manual signature of the Trustee or an
authenticating agent.
(17) ABBREVIATIONS. Customary abbreviations may be used in the
name of a Holder or an assignee, such as: TEN COM (= tenants in
common), TEN ENT (= tenants by the entireties), JT TEN (= joint tenants
with right of survivorship and not as tenants in common), CUST (=
Custodian), and U/G/M/A (= Uniform Gifts to Minors Act).
(18) CUSIP NUMBERS. Pursuant to a recommendation promulgated
by the Committee on Uniform Security Identification Procedures, the
Company has caused CUSIP numbers to be printed on the Notes and the
Trustee may use CUSIP numbers in notices of redemption as a convenience
to Holders. No representation is made as to the accuracy of such
numbers either as printed on the Notes or as contained in any notice of
redemption and reliance may be placed only on the other identification
numbers placed thereon.
(19) ADDITIONAL RIGHTS OF HOLDERS OF RESTRICTED GLOBAL NOTES
AND RESTRICTED DEFINITIVE NOTES. In addition to the rights provided to
Holders of Notes under the Indenture, Holders of Restricted Global
Notes and Restricted Definitive Notes will have all the rights set
forth in the Registration Rights Agreement dated as of July 31, 2003,
between the Company, the Guarantors and the other parties named on the
signature pages thereof or, in the case of Additional Notes, Holders of
Restricted Global Notes and Restricted Definitive Notes will have the
rights set forth in one or more registration rights agreements, if any,
among the Company, the Guarantors and the other parties thereto,
relating to rights given by the Company to the purchasers of any
Additional Notes to register such Additional Notes under the Securities
Act (collectively, the "Registration Rights Agreement").
(20) TRANSFER RESTRICTIONS. By its acceptance of any Note
bearing a legend restricting transfer, each Holder of such Note
acknowledges the restrictions on transfer of such Note set forth in the
Indenture and in such legend and agrees that it will transfer such Note
only as provided in the Indenture.
A1-7
The Company will furnish to any Holder upon written request and without
charge a copy of the Indenture and/or the Registration Rights Agreement.
Requests may be made to:
Westlake Chemical Corporation
2801 Post Oak Boulevard
Houston, Texas 77056
Attention: Vice President, Legal
A1-8
EXHIBIT A1
ASSIGNMENT FORM
To assign this Note, fill in the form below:
(I) or (we) assign and transfer this Note to:___________________________________
(Insert assignee's legal name)
________________________________________________________________________________
(Insert assignee's social security or tax I.D. number)
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
(Print or type assignee's name, address and zip code)
and irrevocably appoint_________________________________________________________
as agent to transfer this Note on the books of the Company. The agent may
substitute another to act for him.
Date: _______________
Your Signature:__________________________________
(Sign exactly as your name appears
on the face of this Note)
Signature Guarantee*: _________________________
* Participant in a recognized Signature Guarantee Medallion Program (or other
signature guarantor acceptable to the Trustee).
A1-9
EXHIBIT A1
OPTION OF HOLDER TO ELECT PURCHASE
If you want to elect to have this Note purchased by the Company
pursuant to Section 4.10 or 4.14 of the Indenture, check the appropriate box
below:
[ ] Section 4.10 [ ] Section 4.14
If you want to elect to have only part of the Note purchased by the
Company pursuant to Section 4.10 or Section 4.14 of the Indenture, state the
principal amount you elect to have purchased:
$___________________
Date: _______________
Your Signature:__________________________________
(Sign exactly as your name appears
on the face of this Note)
Tax Identification No.:__________________________
Signature Guarantee*: _________________________
* Participant in a recognized Signature Guarantee Medallion Program (or other
signature guarantor acceptable to the Trustee).
A1-10
EXHIBIT A1
SCHEDULE OF EXCHANGES OF INTERESTS IN THE GLOBAL NOTE*
The following exchanges of a part of this Global Note for an interest
in another Global Note or exchanges of a part of another Global Note or
Definitive Note for an interest in this Global Note, have been made:
Principal Amount
Amount of Decrease of this Global Note Signature of
in Principal Amount Amount of Increase in Following Such Authorized Officer
of Principal Amount of Decrease of Trustee or
Date of Exchange this Global Note this Global Note (or Increase) Custodian
---------------- ---------------- ---------------- ------------- ---------
* This schedule should be included only if the Note is issued in global form.
A1-11
EXHIBIT A2
[Face of Regulation S Temporary Global Note]
- --------------------------------------------------------------------------------
CUSIP __________
8 3/4% Senior Notes due 2011
No. ___ $__________
WESTLAKE CHEMICAL CORPORATION
promises to pay to______________________________________________________________
or registered assigns,
the principal sum of____________________________________________________Dollars,
[or such greater or lesser amount as indicated on the Schedule of Exchanges of
Interests in the Global Note,]* on July 15, 2011.
Interest Payment Dates: January 15 and July 15
Record Dates: January 1 and July 1
Dated: July 31, 2003
WESTLAKE CHEMICAL CORPORATION
By:_________________________________
Name:
Title:
By:_________________________________
Name:
Title:
This is one of the Notes referred to
in the within-mentioned Indenture:
JPMORGAN CHASE BANK,
as Trustee
By:__________________________________
Authorized Signatory
- --------------------------------------------------------------------------------
* This notation shall be included only if the Note is issued in global form.
A2-1
[Back of Regulation S Temporary Global Note]
8 3/4% Senior Notes due 2011
THE RIGHTS ATTACHING TO THIS REGULATION S TEMPORARY GLOBAL NOTE, AND THE
CONDITIONS AND PROCEDURES GOVERNING ITS EXCHANGE FOR CERTIFICATED NOTES, ARE AS
SPECIFIED IN THE INDENTURE (AS DEFINED HEREIN). NEITHER THE HOLDER NOR THE
BENEFICIAL OWNERS OF THIS REGULATION S TEMPORARY GLOBAL NOTE SHALL BE ENTITLED
TO RECEIVE PAYMENT OF INTEREST HEREON.
THIS GLOBAL NOTE IS HELD BY THE DEPOSITARY (AS DEFINED IN THE INDENTURE
GOVERNING THIS NOTE) OR ITS NOMINEE IN CUSTODY FOR THE BENEFIT OF THE BENEFICIAL
OWNERS HEREOF, AND IS NOT TRANSFERABLE TO ANY PERSON UNDER ANY CIRCUMSTANCES
EXCEPT THAT (1) THE TRUSTEE MAY MAKE SUCH NOTATIONS HEREON AS MAY BE REQUIRED
PURSUANT TO SECTION 2.06 OF THE INDENTURE, (2) THIS GLOBAL NOTE MAY BE EXCHANGED
IN WHOLE BUT NOT IN PART PURSUANT TO SECTION 2.06(a) OF THE INDENTURE, (3) THIS
GLOBAL NOTE MAY BE DELIVERED TO THE TRUSTEE FOR CANCELLATION PURSUANT TO SECTION
2.11 OF THE INDENTURE AND (4) THIS GLOBAL NOTE MAY BE TRANSFERRED TO A SUCCESSOR
DEPOSITARY WITH THE PRIOR WRITTEN CONSENT OF THE COMPANY.
UNLESS AND UNTIL IT IS EXCHANGED IN WHOLE OR IN PART FOR NOTES IN DEFINITIVE
FORM, THIS NOTE MAY NOT BE TRANSFERRED EXCEPT AS A WHOLE BY THE DEPOSITARY TO A
NOMINEE OF THE DEPOSITARY OR BY A NOMINEE OF THE DEPOSITARY TO THE DEPOSITARY OR
ANOTHER NOMINEE OF THE DEPOSITARY OR BY THE DEPOSITARY OR ANY SUCH NOMINEE TO A
SUCCESSOR DEPOSITARY OR A NOMINEE OF SUCH SUCCESSOR DEPOSITARY. UNLESS THIS
CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST
COMPANY (55 WATER STREET, NEW YORK, NEW YORK) ("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 SUCH OTHER NAME AS MAY BE
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO
CEDE & CO. OR SUCH OTHER ENTITY AS MAY BE REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
THIS NOTE (OR ITS PREDECESSOR) WAS ORIGINALLY ISSUED IN A TRANSACTION EXEMPT
FROM REGISTRATION UNDER THE UNITED STATES SECURITIES ACT OF 1933 (THE
"SECURITIES ACT"), AND THIS NOTE MAY NOT BE OFFERED, SOLD OR OTHERWISE
TRANSFERRED IN THE ABSENCE OF SUCH REGISTRATION OR AN APPLICABLE EXEMPTION
THEREFROM. EACH PURCHASER OF THIS NOTE IS HEREBY NOTIFIED THAT THE SELLER OF
THIS NOTE MAY BE RELYING ON THE EXEMPTION FROM THE PROVISIONS OF SECTION 5 OF
THE SECURITIES ACT PROVIDED BY RULE 144A THEREUNDER.
THE HOLDER OF THIS NOTE AGREES FOR THE BENEFIT OF WESTLAKE CHEMICAL CORPORATION
(THE "COMPANY") THAT (A) THIS NOTE MAY BE OFFERED, RESOLD, PLEDGED OR OTHERWISE
TRANSFERRED, ONLY (I) TO THE COMPANY, (II) IN THE UNITED STATES TO A PERSON WHOM
THE SELLER REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER (AS DEFINED IN
RULE 144A UNDER THE SECURITIES ACT) IN A
A2-2
TRANSACTION MEETING THE REQUIREMENTS OF RULE 144A, (III) OUTSIDE THE UNITED
STATES IN AN OFFSHORE TRANSACTION IN ACCORDANCE WITH RULE 904 UNDER THE
SECURITIES ACT, (IV) PURSUANT TO AN EXEMPTION FROM REGISTRATION UNDER THE
SECURITIES ACT PROVIDED BY RULE 144 THEREUNDER (IF AVAILABLE), (V) IN THE UNITED
STATES TO AN INSTITUTIONAL "ACCREDITED INVESTOR" (AS DEFINED IN RULE 501(A)(1),
(2), (3) OR (7) UNDER THE SECURITIES ACT), IN A MINIMUM PRINCIPAL AMOUNT OF NOT
LESS THAN $100,000, THAT IS ACQUIRING THIS NOTE FOR ITS OWN ACCOUNT OR FOR THE
ACCOUNT OF ANOTHER INSTITUTIONAL ACCREDITED INVESTOR FOR INVESTMENT PURPOSES AND
NOT WITH A VIEW TO, OR FOR OFFER OR SALE IN CONNECTION WITH, ANY DISTRIBUTION
THEREOF IN VIOLATION OF THE SECURITIES ACT AND THAT, PRIOR TO SUCH TRANSFER,
FURNISHES (OR HAS FURNISHED ON ITS BEHALF BY A U.S. BROKER-DEALER) TO THE
TRUSTEE A SIGNED LETTER IN THE FORM SET FORTH ON THE REVERSE HEREOF CONTAINING
CERTAIN REPRESENTATIONS AND AGREEMENTS RELATING TO RESTRICTIONS ON TRANSFER OF
THIS NOTE OR (VI) PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE
SECURITIES ACT, IN EACH OF CASES (I) THROUGH (VI) IN ACCORDANCE WITH ANY
APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES, AND (B) THE HOLDER
WILL, AND EACH SUBSEQUENT HOLDER IS REQUIRED TO, NOTIFY ANY PURCHASER OF THIS
NOTE FROM IT OF THE RESALE RESTRICTIONS REFERRED TO IN (A) ABOVE. IF
CERTIFICATED: IN ADDITION, WITH RESPECT TO ANY TRANSFER OF THIS NOTE (OTHER THAN
A TRANSFER PURSUANT TO CLAUSE (A)(VI) ABOVE), THE HOLDER WILL DELIVER TO THE
COMPANY AND THE TRUSTEE SUCH CERTIFICATES AND OTHER INFORMATION AND, IN THE CASE
OF A TRANSFER PURSUANT TO CLAUSE (A)(IV) ABOVE, A LEGAL OPINION AS THEY MAY
REASONABLY REQUIRE TO CONFIRM THAT THE TRANSFER BY IT COMPLIES WITH THE
FOREGOING RESTRICTIONS.
This Note is one of a duly authorized issue of 8-3/4% Senior Notes due
2011 of Westlake Chemical Corporation, a Delaware corporation (the "Company").
Capitalized terms used herein have the meanings assigned to them in the
Indenture referred to below unless otherwise indicated.
(1) INTEREST. The Company promises to pay interest on the
principal amount of this Note at 8-3/4% per annum from July 31, 2003
until maturity and shall pay the Additional Interest, if any, payable
pursuant to Section 6 of the Registration Rights Agreement referred to
below. The Company will pay interest and Additional Interest, if any,
semi-annually in arrears on January 15 and July 15 of each year, or if
any such day is not a Business Day, on the next succeeding Business Day
(each, an "Interest Payment Date"). 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 July 31, 2003; provided that if there is
no existing Default in the payment of interest, and if this Note is
authenticated between a record date referred to on the face hereof and
the next succeeding Interest Payment Date, interest shall accrue from
such next succeeding Interest Payment Date; provided, further, that the
first Interest Payment Date shall be January 15, 2004. The Company will
pay interest (including post-petition interest in any proceeding under
any Bankruptcy Law) on overdue principal and premium, if any, from time
to time at a rate that is 1% per annum in excess of the interest rate
then in effect to the extent lawful; it will pay interest (including
post-petition interest in any proceeding under any Bankruptcy Law) on
overdue installments of interest and Additional Interest, if any
(without regard to any applicable grace periods) from time to time at
the same rate to the extent lawful. Interest will be computed on the
basis of a 360-day year of twelve 30-day months.
A2-3
Until this Regulation S Temporary Global Note is exchanged for one or
more Regulation S Permanent Global Notes, the Holder hereof shall not be
entitled to receive payments of interest hereon; until so exchanged in full,
this Regulation S Temporary Global Note shall in all other respects be entitled
to the same benefits as other Notes under the Indenture.
(2) METHOD OF PAYMENT. The Company will pay interest on the
Notes (except defaulted interest) and Additional Interest, if any, to
the Persons who are registered Holders of Notes at the close of
business on the January 1 or July 1 next preceding the Interest Payment
Date, even if such Notes are canceled after such record date and on or
before such Interest Payment Date, except as provided in Section 2.12
of the Indenture with respect to defaulted interest. The Notes will be
payable as to principal and premium, if any, interest and Additional
Interest, if any, at the office or agency of the Company maintained for
such purpose within the City and State of New York, or, at the option
of the Company, payment of interest and Additional Interest, if any,
may be made by check mailed to the Holders at their addresses set forth
in the register of Holders maintained by the Registrar; provided that
payment by wire transfer of immediately available funds will be
required with respect to principal of, and premium, if any, interest
and Additional Interest, if any, on all Global Notes and any other
Notes with any aggregate principal amount in excess of $1,000,000 the
Holder of which has provided wire transfer instructions to the Company
or the Paying Agent. Such payment will be in such coin or currency of
the United States of America as at the time of payment is legal tender
for payment of public and private debts.
(3) PAYING AGENT AND REGISTRAR. Initially, JPMorgan Chase
Bank, the Trustee under the Indenture, will act as Paying Agent and
Registrar. The Company may change any Paying Agent or Registrar without
notice to any Holder. The Company or any of its Domestic Subsidiaries
may act in any such capacity.
(4) INDENTURE. The Company issued the Notes under an Indenture
dated as of July 31, 2003 (the "Indenture") among the Company, the
Guarantors and the Trustee. The terms of the Notes include those stated
in the Indenture and those made part of the Indenture by reference to
the Trust Indenture Act of 1939, as amended (the "TIA"). The Notes are
subject to all such terms, and Holders are referred to the Indenture
and the TIA for a statement of such terms. To the extent any provision
of this Note conflicts with the express provisions of the Indenture,
the provisions of the Indenture shall govern and be controlling. The
Notes are general unsecured obligations of the Company and are
initially issued in an aggregate principal amount of $380,000,000. The
Company may, subject to the covenants set forth in the Indenture, issue
Additional Notes from time to time without the consent of the Holders.
The Notes initially issued and any Additional Notes subsequently issued
under the Indenture will be treated as a single class for all purposes
of the Indenture, including, without limitation, with respect to
waivers, amendments, supplements, redemptions and offers to purchase.
(5) OPTIONAL REDEMPTION.
(a) Except as set forth in subparagraphs (b) and (c)
of this Paragraph 5, the Company will not have the option to redeem the
Notes prior to July 15, 2007. On or after July 15, 2007, the Company
will have the option to redeem the Notes, in whole or in part, upon not
less than 30 nor more than 60 days' notice, at the redemption prices
(expressed as percentages of principal amount) set forth below plus
accrued and unpaid interest and Additional Interest, if any, on the
Notes redeemed, to the applicable redemption date, if redeemed during
the twelve-month period beginning on July 15 of the years indicated
below, subject to the rights of Holders on the relevant record date to
receive interest on the relevant Interest Payment Date:
A2-4
Year Percentage
---- ----------
2007................................................ 104.375%
2008................................................ 102.971%
2009................................................ 101.458%
2010 and thereafter................................. 100.000%
(b) Notwithstanding the provisions of subparagraph
(a) of this Paragraph 5, at any time on or prior to July 15, 2007, the
Company may on any one or more occasions redeem up to 35% of the
aggregate principal amount of Notes issued under the Indenture with the
net cash proceeds of one or more Public Equity Offerings at a
redemption price equal to 108.75% of the aggregate principal amount
plus accrued and unpaid interest and Additional Interest, if any, to
the redemption date thereof; provided that at least 65% in aggregate
principal amount of the Notes issued under the Indenture remains
outstanding immediately after the occurrence of such redemption and
that such redemption occurs within 60 days of the date of the closing
of such Public Equity Offering.
(c) Notwithstanding the provisions of subparagraph
(a) of this Paragraph 5, at any time prior to July 15, 2007, the
Company may also redeem all or a part of the Notes at a redemption
price equal to 100% of the principal amount of Notes redeemed plus the
Applicable Premium as of, and accrued and unpaid interest and
Additional Interest, if any, to the redemption date, subject to the
rights of Holders on the relevant record date to receive interest due
on the relevant Interest Payment Date. "Applicable Premium" means, with
respect to any Note on any redemption date, the greater of (1) 1.0% of
the principal amount of the Note or (2) the excess, if any, of (a) the
present value on such redemption date of (i) the redemption price of
the note at July 15, 2007 (such redemption price being set forth in
paragraph 5(a)) plus (ii) all required interest payments due on the
Note through July 15, 2007 (excluding accrued but unpaid interest to
the redemption date), computed using a discount rate equal to the
Treasury Rate as of such redemption date plus 50 basis points, over (b)
the principal amount of the Note. "Treasury Rate" means, as of any
redemption date, the yield to maturity as of such redemption date of
United States Treasury securities with a constant maturity (as compiled
and published in the most recent Federal Reserve Statistical Release
H.15 (519) that has become publicly available at least two Business
Days prior to the redemption date (or, if such Statistical Release is
no longer published, any publicly available source of similar market
data)) most nearly equal to the period from the redemption date to July
15, 2007; provided, however, that if the period from the redemption
date to July 15, 2007, is less than one year, the weekly average yield
on actually traded United States Treasury securities adjusted to a
constant maturity of one year shall be used.
(6) MANDATORY REDEMPTION.
The Company will not be required to make mandatory redemption or
sinking fund payments with respect to the Notes.
(7) REPURCHASE AT OPTION OF HOLDER.
(a) If there is a Change of Control, the Company will
be required to make an offer (a "Change of Control Offer") to each
Holder to repurchase all or any part (equal to $1,000 or an integral
multiple thereof) of such Holder's Notes at a purchase price equal to
101% of the aggregate principal amount thereof plus accrued and unpaid
interest and Additional Interest, if any on the Notes repurchased, if
any, to the Change of Control Payment Date, subject to the rights of
Holders on the relevant record date to receive interest due on the
relevant Interest
A2-5
Payment Date (the "Change of Control Payment"). Within 30 days
following any Change of Control, the Company will mail a notice to each
Holder setting forth the procedures governing the Change of Control
Offer as required by the Indenture.
(b) If the Company or a Restricted Subsidiary
consummates any Asset Sales, within ten days of each date on which the
aggregate amount of Excess Proceeds exceeds $15.0 million, the Company
will commence an offer to all Holders of Notes and all holders of other
Pari Passu Indebtedness containing provisions similar to those set
forth in the Indenture with respect to offers to purchase or redeem
with the proceeds of sales of assets (an "Asset Sale Offer") to
purchase the maximum principal amount of Notes and such other Pari
Passu Indebtedness that may be purchased out of the Excess Proceeds at
an offer price in cash in an amount equal to 100% of the principal
amount thereof plus accrued and unpaid interest and Additional Interest
thereon, if any, to the date of purchase, in accordance with the
procedures set forth in the Indenture. If any Excess Proceeds remain
after consummation of an Asset Sale Offer, the Company may use such
Excess Proceeds for any purpose not otherwise prohibited by the
Indenture. If the aggregate principal amount of Notes and other Pari
Passu Indebtedness tendered into such Asset Sale Offer exceeds the
amount of Excess Proceeds, the Trustee shall select the Notes and such
other Pari Passu Indebtedness to be purchased on a pro rata basis based
on the principal amount of Notes and such other Pari Passu Indebtedness
tendered. Holders of Notes that are the subject of an offer to purchase
will receive an Asset Sale Offer from the Company prior to any related
purchase date and may elect to have such Notes purchased by completing
the form entitled "Option of Holder to Elect Purchase" on the reverse
of this Note and otherwise complying with the procedures set forth in
the Indenture. Upon completion of each Asset Sale Offer, the amount of
Excess Proceeds shall be reset at zero.
(8) NOTICE OF REDEMPTION. Notice of redemption will be mailed
at least 30 days but not more than 60 days before the redemption date
to each Holder whose Notes are to be redeemed at its registered
address. Notes in denominations larger than $1,000 may be redeemed in
part but only in whole multiples of $1,000, unless all of the Notes
held by a Holder are to be redeemed. On and after the redemption date
interest ceases to accrue on Notes or portions thereof called for
redemption.
(9) DENOMINATIONS, TRANSFER, EXCHANGE. The Notes are in
registered form without coupons in denominations of $1,000 and integral
multiples of $1,000. The transfer of Notes may be registered and Notes
may be exchanged as provided in the Indenture. The Registrar and the
Trustee may require a Holder, among other things, to furnish
appropriate endorsements and transfer documents and the Company may
require a Holder to pay any taxes and other governmental charges
required by law or permitted by the Indenture. The Company need not
exchange or register the transfer of any Note or portion of a Note
selected for redemption, except for the unredeemed portion of any Note
being redeemed in part. Also, the Company need not exchange or register
the transfer of any Note for a period of 15 days before a selection of
Notes to be redeemed.
This Regulation S Temporary Global Note is exchangeable in
whole or in part for one or more Global Notes only (i) on or after the
termination of the 40-day restricted period (as defined in Regulation
S) and (ii) upon presentation of certificates (accompanied by an
Opinion of Counsel, if applicable) required by Article 2 of the
Indenture. Upon exchange of this Regulation S Temporary Global Note for
one or more Global Notes, the Trustee shall cancel this Regulation S
Temporary Global Note.
A2-6
(10) PERSONS DEEMED OWNERS. The registered Holder of a Note
may be treated as its owner for all purposes.
(11) AMENDMENT, SUPPLEMENT AND WAIVER. Subject to certain
exceptions and limitations, the Indenture, the Note Guarantees or the
Notes may be amended or supplemented with the consent of the Holders of
at least a majority in principal amount of the then outstanding Notes,
voting as a single class, and any existing default or compliance with
any provision of the Indenture, the Note Guarantees or the Notes may be
waived with the consent of the Holders of a majority in principal
amount of the then outstanding Notes, voting as a single class. Without
the consent of any Holder of a Note, the Indenture or the Notes may be
amended or supplemented to cure any ambiguity, defect or inconsistency,
to provide for uncertificated Notes in addition to or in place of
certificated Notes, to provide for the assumption of the Company's or a
Guarantor's obligations to Holders of the Notes in case of a merger or
consolidation or a transfer of all or substantially all of its assets,
to make any change that would provide any additional rights or benefits
to the Holders of the Notes or that does not adversely affect in any
material respect the legal rights under the Indenture of any such
Holder, to provide any security for, any guarantees of or any
additional obligors on the Notes or the Note Guarantees, or to confirm
and evidence the release, termination or discharge of any such security
or guarantee when such release, termination or discharge is permitted
by this Indenture, to comply with the requirements of the SEC in order
to effect or maintain the qualification of the Indenture under the TIA,
and to conform the text of the Indenture or the Notes to any provision
in the Offering Circular relating to the initial issuance of the Notes
in the section "Description of Notes" to the extent that such provision
in the "Description of Notes" was intended to be a substantially
verbatim recitation of a provision of the Indenture, the Note
Guarantees or the Notes.
Without the consent of each Holder affected, an amendment,
supplement or waiver may not (with respect to any Notes held by a
non-consenting Holder) (1) reduce the percentage of principal amount of
Notes whose Holders must consent to an amendment, supplement or waiver;
(2) reduce, or change the Stated Maturity of, the principal of any
Note, change the date on which any of the Notes may be subject to
redemption or repurchase or reduce the redemption or repurchase price
of the Notes; (3) reduce the rate of or change the time for payment of
interest on any Note; (4) waive a Default or Event of Default in the
payment of principal of, or premium, if any, interest or Additional
Interest, if any, on the Notes (except a rescission of acceleration of
the Notes by the Holders of at least a majority in aggregate principal
amount of the Notes and a waiver of the payment default that resulted
from such acceleration); (5) make any Note payable in money other than
that stated in the Notes; (6) make any change in the provisions of the
Indenture relating to waivers of past Defaults or Events of Default or
the rights of Holders to receive payments of principal of, or premium,
if any, interest or Additional Interest, if any, on the Notes; (7)
waive a redemption payment with respect to any Note (other than a
payment required in connection with an Asset Sale or a Change of
Control); (8) release any Guarantor from any of its obligations under
its Note Guarantee or the Indenture, except in accordance with the
terms of the Indenture; or (9) make any change in certain provisions of
the Indenture related to amendments, supplements and waivers.
(12) DEFAULTS AND REMEDIES. Events of Default include: (i)
default for 30 days in the payment when due of interest or Additional
Interest on the Notes; (ii) default in payment of principal of or
premium, if any, on the Notes when the same becomes due and payable at
maturity, upon redemption or otherwise, (iii) failure by the Company or
any of its Restricted Subsidiaries to comply with Sections 3.09, 4.10,
4.14 or 5.01 of the Indenture; (iv) failure by the Company or any
Guarantor for 60 days after notice to comply with any other covenant or
agreement in the Indenture, or the Notes; (v) default under certain
other agreements relating to
A2-7
Indebtedness of the Company for money borrowed in excess of $20.0
million which default (a) results in the acceleration of such
Indebtedness prior to its express maturity, or (b) is caused by a
failure to pay principal of, or interest or premium, if any, on such
Indebtedness prior to the expiration of the grace period provided in
such Indebtedness on the date of such default; (vi) certain final
judgments for the payment of money in excess of $20.0 million that
remain undischarged for a period of 60 days; (vii) certain events of
bankruptcy or insolvency with respect to the Company or any Restricted
Subsidiary that is a Significant Subsidiary or any group of Restricted
Subsidiaries that, taken as a whole, would constitute a Significant
Subsidiary and (viii) except as permitted by the Indenture, any Note
Guarantee shall be held in any judicial proceeding to be unenforceable
or invalid or shall cease for any reason to be in full force and effect
or any Guarantor or any Person acting on its behalf shall deny or
disaffirm its obligations under such Guarantor's Note Guarantee. If any
Event of Default occurs and is continuing, the Trustee or the Holders
of at least 25% in principal amount of the then outstanding Notes may
declare all the Notes to be due and payable. Notwithstanding the
foregoing, in the case of an Event of Default arising from certain
events of bankruptcy or insolvency, all outstanding Notes will become
due and payable without further action or notice. Holders may not
enforce the Indenture or the Notes except as provided in the Indenture.
Subject to certain limitations, Holders of a majority in principal
amount of the then outstanding Notes may direct the Trustee in its
exercise of any trust or power. The Trustee may withhold from Holders
of the Notes notice of any continuing Default or Event of Default
(except a Default or Event of Default relating to the payment of
principal, premium, interest or Additional Interest) if it determines
that withholding notice is in their interest. The Holders of a majority
in aggregate principal amount of the Notes then outstanding by notice
to the Trustee may on behalf of the Holders of all of the Notes waive
any existing Default or Event of Default and its consequences under the
Indenture except a continuing Default or Event of Default in the
payment of principal of, or premium, if any, interest or Additional
Interest, if any, on the Notes. The Company is required to deliver to
the Trustee annually a statement regarding compliance with the
Indenture, and the Company is required upon becoming aware of any
Default or Event of Default, to deliver to the Trustee a statement
specifying such Default or Event of Default.
(13) DISCHARGE PRIOR TO MATURITY. The Indenture with respect
to the Notes shall be discharged and canceled upon the payment of all
of the Notes and, subject to Article 8 of the Indenture, shall be
discharged except for certain obligations upon the irrevocable deposit
with the Trustee of any combination of funds and non-callable
Government Obligations sufficient for such payment.
(14) TRUSTEE DEALINGS WITH COMPANY. The Trustee, in its
individual or any other capacity, may make loans to, accept deposits
from, and perform services for the Company, any Guarantor or any of
their respective Affiliates, and may otherwise deal with the Company,
any Guarantor or any such Affiliate, as if it were not the Trustee.
(15) NO RECOURSE AGAINST OTHERS. No past, present or future
director, officer, employee, incorporator or stockholder of the Company
or any of the Guarantors, as such, will have any liability for any
obligations of the Company or such Guarantor under the Notes, the Note
Guarantees or the Indenture or for any claim based on, in respect of,
or by reason of, such obligations or their creation. Each Holder by
accepting a Note waives and releases all such liability. The waiver and
release are part of the consideration for the issuance of the Notes.
(16) AUTHENTICATION. This Note will not be valid until
authenticated by the manual signature of the Trustee or an
authenticating agent.
A2-8
(17) ABBREVIATIONS. Customary abbreviations may be used in the
name of a Holder or an assignee, such as: TEN COM (= tenants in
common), TEN ENT (= tenants by the entireties), JT TEN (= joint tenants
with right of survivorship and not as tenants in common), CUST (=
Custodian), and U/G/M/A (= Uniform Gifts to Minors Act).
(18) CUSIP NUMBERS. Pursuant to a recommendation promulgated
by the Committee on Uniform Security Identification Procedures, the
Company has caused CUSIP numbers to be printed on the Notes and the
Trustee may use CUSIP numbers in notices of redemption as a convenience
to Holders. No representation is made as to the accuracy of such
numbers either as printed on the Notes or as contained in any notice of
redemption and reliance may be placed only on the other identification
numbers placed thereon.
(19) ADDITIONAL RIGHTS OF HOLDERS OF RESTRICTED GLOBAL NOTES
AND RESTRICTED DEFINITIVE NOTES. In addition to the rights provided to
Holders of Notes under the Indenture, Holders of Restricted Global
Notes and Restricted Definitive Notes will have all the rights set
forth in the Registration Rights Agreement dated as of July 31, 2003,
between the Company, the Guarantors and the other parties named on the
signature pages thereof or, in the case of Additional Notes, Holders of
Restricted Global Notes and Restricted Definitive Notes will have the
rights set forth in one or more registration rights agreements, if any,
among the Company, the Guarantors and the other parties thereto,
relating to rights given by the Company to the purchasers of any
Additional Notes to register such Additional Notes under the Securities
Act (collectively, the "Registration Rights Agreement").
(20) TRANSFER RESTRICTIONS. By its acceptance of any Note
bearing a legend restricting transfer, each Holder of such Note
acknowledges the restrictions on transfer of such Note set forth in the
Indenture and in such legend and agrees that it will transfer such Note
only as provided in the Indenture.
The Company will furnish to any Holder upon written request and without
charge a copy of the Indenture and/or the Registration Rights Agreement.
Requests may be made to:
Westlake Chemical Corporation
2801 Post Oak Boulevard
Houston, Texas 77056
Attention: Vice President, Legal
A2-9
ASSIGNMENT FORM
To assign this Note, fill in the form below:
(I) or (we) assign and transfer this Note to:___________________________________
(Insert assignee's legal name)
________________________________________________________________________________
(Insert assignee's social security or tax I.D. number)
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
(Print or type assignee's name, address and zip code)
and irrevocably appoint_________________________________________________________
as agent to transfer this Note on the books of the Company. The agent may
substitute another to act for him.
Date: _______________
Your Signature:__________________________________
(Sign exactly as your name appears
on the face of this Note)
Signature Guarantee*: _________________________
* Participant in a recognized Signature Guarantee Medallion Program (or other
signature guarantor acceptable to the Trustee).
A2-10
OPTION OF HOLDER TO ELECT PURCHASE
If you want to elect to have this Note purchased by the Company
pursuant to Section 4.10 or 4.14 of the Indenture, check the appropriate box
below:
[ ] Section 4.10 [ ] Section 4.14
If you want to elect to have only part of the Note purchased by the
Company pursuant to Section 4.10 or Section 4.14 of the Indenture, state the
principal amount you elect to have purchased:
$_____________
Date: _______________
Your Signature:__________________________________
(Sign exactly as your name appears
on the face of this Note)
Tax Identification No.:__________________________
Signature Guarantee*: _________________________
* Participant in a recognized Signature Guarantee Medallion Program (or other
signature guarantor acceptable to the Trustee).
A2-11
SCHEDULE OF EXCHANGES OF REGULATION S TEMPORARY GLOBAL NOTE
The following exchanges of a part of this Regulation S Temporary Global
Note for an interest in another Global Note, or of other Restricted Global Notes
for an interest in this Regulation S Temporary Global Note, have been made:
Principal Amount
Amount of Decrease of this Global Note Signature of
in Principal Amount Amount of Increase in Following Such Authorized Officer
of Principal Amount of Decrease of Trustee or
Date of Exchange this Global Note this Global Note (or Increase) Custodian
---------------- ---------------- ---------------- ------------- ---------
A2-12
EXHIBIT B
FORM OF CERTIFICATE OF TRANSFER
Westlake Chemical Corporation
2801 Post Oak Boulevard
Houston, Texas 77056
JPMorgan Chase Bank
600 Travis Street, Suite 1150
Houston, Texas 77002
Re: 8 3/4% Senior Notes due 2011
Reference is hereby made to the Indenture, dated as of July 31, 2003
(the "Indenture") among Westlake Chemical Corporation, as issuer (the
"Company"), the Guarantors named on the signature pages thereto and JPMorgan
Chase Bank, as trustee. Capitalized terms used but not defined herein shall have
the meanings given to them in the Indenture.
___________________ (the "Transferor") owns and proposes to transfer
the Note[s] or interest in such Note[s] specified in Annex A hereto, in the
principal amount of $___________ in such Note[s] or interests (the "Transfer"),
to ___________________________ (the "Transferee"), as further specified in Annex
A hereto. In connection with the Transfer, the Transferor hereby certifies that:
[CHECK ALL THAT APPLY]
1. [ ] Check if Transferee will take delivery of a beneficial interest
in the 144A Global Note or a Restricted DEFINITIVE NOTE PURSUANT TO RULE 144A.
The Transfer is being effected pursuant to and in accordance with Rule 144A
under the Securities Act of 1933, as amended (the "Securities Act"), and,
accordingly, the Transferor hereby further certifies that the beneficial
interest or Definitive Note is being transferred to a Person that the Transferor
reasonably believed and believes is purchasing the beneficial interest or
Definitive Note for its own account, or for one or more accounts with respect to
which such Person exercises sole investment discretion, and such Person and each
such account is a "qualified institutional buyer" within the meaning of Rule
144A in a transaction meeting the requirements of Rule 144A, such person and
each such account has been given notice that the Transfer is being made in
reliance on Rule 144A and such Transfer is in compliance with any applicable
blue sky securities laws of any state of the United States. Upon consummation of
the proposed Transfer in accordance with the terms of the Indenture, the
transferred beneficial interest or Definitive Note will be subject to the
restrictions on transfer enumerated in the Private Placement Legend printed on
the 144A Global Note and/or the Definitive Note and in the Indenture and the
Securities Act.
2. [ ] Check if Transferee will take delivery of a beneficial interest
in the Temporary Regulation S Global NOTE, THE REGULATION S GLOBAL NOTE OR A
RESTRICTED DEFINITIVE NOTE PURSUANT TO REGULATION S. The Transfer is being
effected pursuant to and in accordance with Rule 903 or Rule 904 under the
Securities Act and, accordingly, the Transferor hereby further certifies that
(i) the Transfer is not being made to a Person in the United States and (x) at
the time the buy order was originated, the Transferee was outside the United
States or such Transferor and any Person acting on its behalf reasonably
believed and believes that the Transferee was outside the United States or (y)
the transaction was executed in, on or through the facilities of a designated
offshore securities market and neither such Transferor nor any Person acting on
its behalf knows that the transaction was prearranged with a buyer in the United
States, (ii) no directed selling efforts have been made in contravention of the
requirements of Rule 903(b) or Rule 904(b) of Regulation S under the Securities
Act, (iii) the transaction is not part of a
B-1
plan or scheme to evade the registration requirements of the Securities Act and
(iv) if the proposed Transfer is being made prior to the expiration of the
Restricted Period, (a) the Transferee will take delivery of a beneficial
interest in the Temporary Regulation S Global Note held immediately after such
Transfer through Euroclear or Clearstream, and (b) the Transfer is not being
made to a U.S. Person or for the account or benefit of a U.S. Person (other than
an Initial Purchaser). Upon consummation of the proposed Transfer in accordance
with the terms of the Indenture, the transferred beneficial interest or
Definitive Note will be subject to the restrictions on Transfer enumerated in
the Private Placement Legend printed on the Regulation S Global Note, the
Temporary Regulation S Global Note and/or the Definitive Note and in the
Indenture and the Securities Act.
3. [ ] CHECK AND COMPLETE IF TRANSFEREE WILL TAKE DELIVERY OF A
BENEFICIAL INTEREST IN THE IAI GLOBAL NOTE OR A RESTRICTED DEFINITIVE NOTE
PURSUANT TO ANY PROVISION OF THE SECURITIES ACT OTHER THAN RULE 144A OR
REGULATION S. The Transfer is being effected in compliance with the transfer
restrictions applicable to beneficial interests in Restricted Global Notes and
Restricted Definitive Notes and pursuant to and in accordance with the
Securities Act and any applicable blue sky securities laws of any state of the
United States, and accordingly the Transferor hereby further certifies that
(check one):
(a) [ ] such Transfer is being effected to the Company;
or
(b) [ ] such Transfer is being effected to an Institutional
Accredited Investor in a minimum principal amount of Notes or
beneficial interests therein of not less than $100,000, that is
acquiring the Notes or such beneficial interests for its own account or
for the account of another Institutional Accredited Investor for
investment purposes and not with a view to, or for offer or sale in
connection with, any distribution thereof in violation of the
Securities Act, in each case, pursuant to an exemption from the
registration requirements of the Securities Act other than Rule 144A,
Rule 144 or Rule 904, and the Transferor hereby further certifies that
it has not engaged in any general solicitation or general advertising
within the meaning of Regulation D under the Securities Act and the
Transfer complies with the transfer restrictions applicable to
beneficial interests in a Restricted Global Note or Restricted
Definitive Notes and the requirements of the exemption claimed, which
certification is supported by (1) a certificate executed by the
Transferee in the form of Exhibit D to the Indenture and (2), in the
case of Definitive Notes, an Opinion of Counsel provided by the
Transferor or the Transferee (a copy of which the Transferor has
attached to this certification), to the effect that such Transfer is in
compliance with the Securities Act. Upon consummation of the proposed
transfer in accordance with the terms of the Indenture, the transferred
beneficial interest or Definitive Note will be subject to the
restrictions on transfer enumerated in the Private Placement Legend
printed on the IAI Global Note and/or the Restricted Definitive Notes
and in the Indenture and the Securities Act.
4. [ ] CHECK IF TRANSFEREE WILL TAKE DELIVERY OF A BENEFICIAL INTEREST
IN AN UNRESTRICTED GLOBAL NOTE OR OF AN UNRESTRICTED DEFINITIVE NOTE.
(a) [ ] CHECK IF TRANSFER IS PURSUANT TO RULE 144. (i) The Transfer is
being effected pursuant to and in accordance with Rule 144 under the Securities
Act and in compliance with the transfer restrictions contained in the Indenture
and any applicable blue sky securities laws of any state of the United States
and (ii) the restrictions on transfer contained in the Indenture and the Private
Placement Legend are not required in order to maintain compliance with the
Securities Act (and based on an Opinion of Counsel if the Company or the
Registrar so requests). Upon consummation of the proposed Transfer in accordance
with the terms of the Indenture, the transferred beneficial interest or
Definitive Note will no
B-2
longer be subject to the restrictions on transfer enumerated in the Private
Placement Legend printed on the Restricted Global Notes, on Restricted
Definitive Notes and in the Indenture.
(b) [ ] CHECK IF TRANSFER IS PURSUANT TO REGULATION S. (i) The Transfer
is being effected pursuant to and in accordance with Rule 903 or Rule 904 under
the Securities Act and in compliance with the transfer restrictions contained in
the Indenture and any applicable blue sky securities laws of any state of the
United States and (ii) the restrictions on transfer contained in the Indenture
and the Private Placement Legend are not required in order to maintain
compliance with the Securities Act (and based on an Opinion of Counsel if the
Company or the Registrar so requests). Upon consummation of the proposed
Transfer in accordance with the terms of the Indenture, the transferred
beneficial interest or Definitive Note will no longer be subject to the
restrictions on transfer enumerated in the Private Placement Legend printed on
the Restricted Global Notes, on Restricted Definitive Notes and in the
Indenture.
(c) [ ] CHECK IF TRANSFER IS PURSUANT TO OTHER EXEMPTION. (i) The
Transfer is being effected pursuant to and in compliance with an exemption from
the registration requirements of the Securities Act other than Rule 144, Rule
903 or Rule 904 and in compliance with the transfer restrictions contained in
the Indenture and any applicable blue sky securities laws of any State of the
United States and (ii) the restrictions on transfer contained in the Indenture
and the Private Placement Legend are not required in order to maintain
compliance with the Securities Act (and based on an Opinion of Counsel if the
Company or the Registrar so requests). Upon consummation of the proposed
Transfer in accordance with the terms of the Indenture, the transferred
beneficial interest or Definitive Note will not be subject to the restrictions
on transfer enumerated in the Private Placement Legend printed on the Restricted
Global Notes or Restricted Definitive Notes and in the Indenture.
This certificate and the statements contained herein are made for your
benefit and the benefit of the Company.
_______________________________________
[Insert Name of Transferor]
By:____________________________________
Name:
Title:
Dated: _______________________
B-3
ANNEX A TO CERTIFICATE OF TRANSFER
1. The Transferor owns and proposes to transfer the following:
[CHECK ONE OF (a) OR (b)]
(a) [ ] a beneficial interest in the:
(i) [ ] 144A Global Note (CUSIP 960413 AB8), or
(ii) [ ] Regulation S Global Note (CUSIP U96060 AA3), or
(iii) [ ] IAI Global Note (CUSIP 960413 AD4); or
(b) [ ] a Restricted Definitive Note.
2. After the Transfer the Transferee will hold:
[CHECK ONE]
(a) [ ] a beneficial interest in the:
(i) [ ] 144A Global Note (CUSIP 960413 AB8), or
(ii) [ ] Regulation S Global Note (CUSIP U96060 AA3), or
(iii) [ ] IAI Global Note (CUSIP 960413 AD4); or
(iv) [ ] Unrestricted Global Note (CUSIP _________); or
(b) [ ] a Restricted Definitive Note; or
(c) [ ] an Unrestricted Definitive Note,
in accordance with the terms of the Indenture.
B-4
EXHIBIT C
FORM OF CERTIFICATE OF EXCHANGE
Westlake Chemical Corporation
2801 Post Oak Boulevard
Houston, Texas 77056
JPMorgan Chase Bank
600 Travis Street, Suite 1150
Houston, Texas 77002
Re: 8 3/4% Senior Notes due 2011
(CUSIP ____________)
Reference is hereby made to the Indenture, dated as of July 31, 2003
(the "Indenture"), among Westlake Chemical Corporation as issuer (the
"Company"), the Guarantors named on the signature pages thereto and JPMorgan
Chase Bank, as trustee. Capitalized terms used but not defined herein shall have
the meanings given to them in the Indenture.
__________________________, (the "Owner") owns and proposes to exchange
the Note[s] or interest in such Note[s] specified herein, in the principal
amount of $____________ in such Note[s] or interests (the "Exchange"). In
connection with the Exchange, the Owner hereby certifies that:
1. EXCHANGE OF RESTRICTED DEFINITIVE NOTES OR BENEFICIAL INTERESTS IN A
RESTRICTED GLOBAL NOTE FOR UNRESTRICTED DEFINITIVE NOTES OR BENEFICIAL INTERESTS
IN AN UNRESTRICTED GLOBAL NOTE
(a) [ ] CHECK IF EXCHANGE IS FROM BENEFICIAL INTEREST IN A RESTRICTED
GLOBAL NOTE TO BENEFICIAL INTEREST IN AN UNRESTRICTED GLOBAL NOTE. In connection
with the Exchange of the Owner's beneficial interest in a Restricted Global Note
for a beneficial interest in an Unrestricted Global Note in an equal principal
amount, the Owner hereby certifies (i) the beneficial interest is being acquired
for the Owner's own account without transfer, (ii) such Exchange has been
effected in compliance with the transfer restrictions applicable to the Global
Notes and pursuant to and in accordance with the Securities Act of 1933, as
amended (the "Securities Act"), (iii) the restrictions on transfer contained in
the Indenture and the Private Placement Legend are not required in order to
maintain compliance with the Securities Act and (iv) the beneficial interest in
an Unrestricted Global Note is being acquired in compliance with any applicable
blue sky securities laws of any state of the United States (and, in the case of
clause (ii) and (iii), based on an Opinion of Counsel if the Company or the
Registrar so requests).
(b) [ ] CHECK IF EXCHANGE IS FROM RESTRICTED DEFINITIVE NOTE TO
BENEFICIAL INTEREST IN AN UNRESTRICTED GLOBAL NOTE. In connection with the
Owner's Exchange of a Restricted Definitive Note for a beneficial interest in an
Unrestricted Global Note, the Owner hereby certifies (i) the beneficial interest
is being acquired for the Owner's own account without transfer, (ii) such
Exchange has been effected in compliance with the transfer restrictions
applicable to Restricted Definitive Notes and pursuant to and in accordance with
the Securities Act, (iii) the restrictions on transfer contained in the
Indenture and the Private Placement Legend are not required in order to maintain
compliance with the Securities Act and (iv) the beneficial interest is being
acquired in compliance with any applicable blue sky securities laws of any state
of the United States (and, in the case of clauses (ii) and (iii), based on an
Opinion of Counsel if the Company and the Registrar so request).
C-1
(c) [ ] CHECK IF EXCHANGE IS FROM RESTRICTED DEFINITIVE NOTE TO
UNRESTRICTED DEFINITIVE NOTE. In connection with the Owner's Exchange of a
Restricted Definitive Note for an Unrestricted Definitive Note, the Owner hereby
certifies (i) the Unrestricted Definitive Note is being acquired for the Owner's
own account without transfer, (ii) such Exchange has been effected in compliance
with the transfer restrictions applicable to Restricted Definitive Notes and
pursuant to and in accordance with the Securities Act, (iii) the restrictions on
transfer contained in the Indenture and the Private Placement Legend are not
required in order to maintain compliance with the Securities Act and (iv) the
Unrestricted Definitive Note is being acquired in compliance with any applicable
blue sky securities laws of any state of the United States (and, in the case of
clauses (ii) and (iii), based on an Opinion of Counsel if the Company and the
Registrar so request).
(2). CHECK IF EXCHANGE IS FROM RESTRICTED DEFINITIVE NOTE TO BENEFICIAL
INTEREST IN A RESTRICTED GLOBAL Note. In connection with the Exchange of the
Owner's Restricted Definitive Note for a beneficial interest in the [CHECK ONE]
[ ] 144A Global Note, [ ] Regulation S Global Note, or [ ] IAI Global Note with
an equal principal amount, the Owner hereby certifies (i) the beneficial
interest is being acquired for the Owner's own account without transfer and (ii)
such Exchange has been effected in compliance with the transfer restrictions
applicable to the Restricted Global Notes and pursuant to and in accordance with
the Securities Act, and in compliance with any applicable blue sky securities
laws of any state of the United States. Upon consummation of the proposed
Exchange in accordance with the terms of the Indenture, the beneficial interest
issued will be subject to the restrictions on transfer enumerated in the Private
Placement Legend printed on the relevant Restricted Global Note and in the
Indenture and the Securities Act.
C-2
This certificate and the statements contained herein are made for your
benefit and the benefit of the Company.
______________________________________
[Insert Name of Transferor]
By:___________________________________
Name:
Title:
Dated: ______________________
C-3
FORM OF CERTIFICATE FROM
ACQUIRING INSTITUTIONAL ACCREDITED INVESTOR
Westlake Chemical Corporation
2801 Post Oak Boulevard
Houston, Texas 77056
JPMorgan Chase Bank
600 Travis Street, Suite 1150
Houston, Texas 77002
Re: 8 3/4% Senior Notes due 2011
Reference is hereby made to the Indenture, dated as of July 31, 2003
(the "Indenture"), among Westlake Chemical Corporation, as issuer (the
"Company"), the Guarantors named on the signature pages thereto and JPMorgan
Chase Bank, as trustee. Capitalized terms used but not defined herein shall have
the meanings given to them in the Indenture.
In connection with our proposed purchase of $____________ aggregate
principal amount of:
(a) [ ] a beneficial interest in a Global Note, or
(b) [ ] a Definitive Note,
we confirm that:
1. We understand that any subsequent transfer of the Notes or any
interest therein is subject to certain restrictions and conditions set forth in
the Indenture and the undersigned agrees to be bound by, and not to resell,
pledge or otherwise transfer the Notes or any interest therein except in
compliance with, such restrictions and conditions and the Securities Act of
1933, as amended (the "Securities Act").
2. We understand that the offer and sale of the Notes have not been
registered under the Securities Act, and that the Notes and any interest therein
may not be offered or sold except as permitted in the following sentence. We
agree, on our own behalf and on behalf of any accounts for which we are acting
as hereinafter stated, that if we should offer, resell, pledge or otherwise
transfer the Notes or any interest therein, we will do so only (i) to the
Company, (ii) in the United States to a person whom we reasonably believes is a
"qualified institutional buyer" (as defined in Rule 144A under the Securities
Act) in a transaction meeting the requirements of Rule 144A, (iii) outside the
United States in a transaction complying with the provisions of Rule 904 under
the Securities Act, (iv) pursuant to an exemption from registration under the
Securities Act provided by Rule 144 (if available), (v) in the United States to
an institutional "accredited investor" (as defined below), in a minimum
principal amount of Notes or interests therein of not less than $100,000, that
is acquiring the Notes or such interests for its own account or for the account
of another institutional accredited investor for investment purposes and not
with a view to, or for offer or sale in connection with, any distribution
thereof in violation of the Securities Act and that, prior to such transfer,
furnishes (or has furnished on its behalf by a U.S. broker-dealer) to the
trustee a signed letter substantially in the form of this letter or (vi)
pursuant to an effective registration statement under the Securities Act, in
each of cases (i) through (vi) in accordance with any applicable securities laws
of any State of the United States. We further agree to provide to any Person
purchasing the Definitive Note or beneficial interest in a Global Note from us
in a transaction meeting the requirements
D-4
of clauses (i) through (v) of this paragraph a notice advising such purchaser
that offers, resales, pledges and transfers thereof are restricted as stated
herein.
3. We understand that, on any proposed offer, sale, pledge or transfer
of the Notes or beneficial interest therein, we will be required to furnish to
you such certifications, legal opinions and other information as you may
reasonably require to confirm that the proposed sale complies with the foregoing
restrictions. We further understand that the Notes purchased by us will bear a
legend to the foregoing effect.
4. We are an institutional "accredited investor" (as defined in Rule
501(a)(1), (2), (3) or (7) of Regulation D under the Securities Act) and have
such knowledge and experience in financial and business matters as to be capable
of evaluating the merits and risks of our investment in the Notes, and we and
any accounts for which we are acting are each able to bear the economic risk of
our or its investment and can afford the complete loss of such investment.
5. We are acquiring the Notes or beneficial interest therein purchased
by us for our own account or for one or more accounts (each of which is an
institutional "accredited investor") as to each of which we exercise sole
investment discretion , in each case in a minimum principal amount of Notes or
interests therein of not less than $100,000 for investment purposes and not with
a view to, or for offer or sale in connection with, any distribution thereof in
violation of the Securities Act.
You are entitled to rely upon this letter and are irrevocably
authorized to produce this letter or a copy hereof to any interested party in
any administrative or legal proceedings or official inquiry with respect to the
matters covered hereby.
THIS LETTER SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE
LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD TO PRINCIPLES OF CONFLICTS OF
LAWS.
____________________________________
[Insert Name of Accredited Investor]
By:_________________________________
Name:
Title:
Dated: _______________________
D-5
EXHIBIT E
FORM OF NOTATION OF NOTE GUARANTEE
For value received, each Guarantor (which term includes any successor
Person under the Indenture) has, jointly and severally, unconditionally
guaranteed, to the extent set forth in, and subject to the provisions of, the
Indenture dated as of July 31, 2003 (the "Indenture") among Westlake Chemical
Corporation ("Company"), the Guarantors listed on Schedule I thereto and
JPMorgan Chase Bank, as trustee (the "Trustee"), (a) the due and punctual
payment of the principal of, premium, if any, interest and Additional Interest,
if any, on the Notes (as defined in the Indenture), whether at maturity, by
acceleration, redemption or otherwise, the due and punctual payment of interest
on overdue principal of and interest on the Notes, if any, if lawful, and the
due and punctual performance of all other payment obligations of the Company to
the Holders or the Trustee all in accordance with the terms of the Indenture and
(b) in case of any extension of time of payment or renewal of any Notes or any
of such other payment obligations, that the same will be promptly paid in full
when due or performed in accordance with the terms of the extension or renewal,
whether at stated maturity, by acceleration or otherwise. The obligations of the
Guarantors to the Holders of Notes and to the Trustee pursuant to the Note
Guarantee and the Indenture are expressly set forth in Article 10 of the
Indenture and reference is hereby made to the Indenture for the precise terms of
the Note Guarantee.
[Name of Guarantors]
By:______________________________________
Name:
Title:
E-1
EXHIBIT F
FORM OF SUPPLEMENTAL INDENTURE
TO BE DELIVERED BY SUBSEQUENT GUARANTORS
Supplemental Indenture (this "Supplemental Indenture"), dated as of
________________, 20[__], among __________________ (the "Guaranteeing
Subsidiary"), a subsidiary of Westlake Chemical Corporation (or its permitted
successor), a __________________ (the "Company"), the Company, the other
Guarantors (as defined in the Indenture referred to herein) and JPMorgan Chase
Bank (or its permitted successor), as trustee under the indenture referred to
below (the "Trustee").
W I T N E S S E T H
WHEREAS, the Company and the Guarantors have heretofore executed and
delivered to the Trustee an indenture (the "Indenture"), dated as of July 31,
2003, [add appropriate references to any further supplements] providing for the
issuance of 8-3/4% Senior Notes due 2011 (the "Notes");
WHEREAS, Section 4.17 of the Indenture provides that under certain
circumstances the Guaranteeing Subsidiary shall execute and deliver to the
Trustee a supplemental indenture pursuant to which the Guaranteeing Subsidiary
shall unconditionally guarantee all of the Company's payment obligations under
the Notes and the Indenture on the terms and conditions set forth herein (the
"Note Guarantee"); and
WHEREAS, Section 9.01(5) of the Indenture provides that, without the
consent of any Holder (as defined therein), the Company, the Guarantors and the
Trustee may amend or supplement the Indenture to add guarantees of or additional
obligors on the Notes or the Note Guarantees;
WHEREAS, the Company and the Guarantors, pursuant to the foregoing
authority, propose to amend and supplement the Indenture in certain respects to
provide for the Note Guarantee of the Guaranteeing Subsidiary;
NOW THEREFORE, in consideration of the foregoing and for other good and
valuable consideration, the receipt of which is hereby acknowledged, the
Company, the Guaranteeing Subsidiary, the other Guarantors and the Trustee
mutually covenant and agree for the equal and ratable benefit of the Holders of
the Notes as follows:
1. CAPITALIZED TERMS. Capitalized terms used herein without definition
shall have the meanings assigned to them in the Indenture.
2. AGREEMENT TO GUARANTEE. The Guaranteeing Subsidiary hereby agrees as
follows:
(a) Along with all Guarantors named in the Indenture,
to jointly and severally unconditionally guarantee to each
Holder of a Note authenticated and delivered by the Trustee
and to the Trustee and its successors and assigns,
irrespective of the validity and enforceability of the
Indenture, the Notes or the obligations of the Company
thereunder, that:
(i) the principal of, and premium, if any, interest
and Additional Interest, if any, on the Notes will be promptly
paid in full when due, whether at maturity, by acceleration,
redemption or otherwise, and interest on the overdue principal
of and interest on the Notes, if any, if lawful, and all other
payment obligations of the Company to the
F-1
Holders or the Trustee thereunder will be promptly paid in
full or performed, all in accordance with the terms hereof and
thereof; and
(ii) in case of any extension of time of payment or
renewal of any Notes or any of such other payment obligations,
that same will be promptly paid in full when due or performed
in accordance with the terms of the extension or renewal,
whether at stated maturity, by acceleration or otherwise.
Failing payment when due of any amount so guaranteed
or any performance so guaranteed for whatever reason, the
Guarantors and the Guaranteeing Subsidiary shall be jointly and
severally obligated to pay the same immediately. The
Guaranteeing Subsidiary agrees that this is a guarantee of
payment and not of collection.
(b) The Guaranteeing Subsidiary hereby agrees that
its obligations hereunder shall be, to the extent permitted by
law, unconditional, irrespective of the validity, regularity
or enforceability of the Notes or the Indenture, the absence
of any action to enforce the same, any waiver or consent by
any Holder with respect to any provisions hereof or thereof,
the recovery of any judgment against the Company, any action
to enforce the same or any other circumstance which might
otherwise constitute a legal or equitable discharge or defense
of a guarantor. To the extent permitted by law, the
Guaranteeing Subsidiary hereby waives diligence, presentment,
demand of payment, filing of claims with a court in the event
of insolvency or bankruptcy of the Company, any right to
require a proceeding first against the Company, protest,
notice and all demands whatsoever and, subject to Article 8 of
the Indenture, covenants that this Note Guarantee will not be
discharged except by complete performance of the obligations
contained in the Notes and the Indenture. The Guaranteeing
Subsidiary accepts all obligations of a Guarantor under the
Indenture.
(c) If any Holder or the Trustee is required by any
court or otherwise to return to the Company, the Guarantors or
any custodian, trustee, liquidator or other similar official
acting in relation to either the Company or the Guarantors,
any amount paid by either the Company or any Guarantor to the
Trustee or such Holder, this Note Guarantee, to the extent
theretofore discharged, shall be reinstated in full force and
effect.
(d) The Guaranteeing Subsidiary agrees that it will
not be entitled to any right of subrogation in relation to the
Holders in respect of any obligations guaranteed hereby until
payment in full of all obligations guaranteed hereby. The
Guaranteeing Subsidiary further agrees that, as between the
Guarantors, on the one hand, and the Holders and the Trustee,
on the other hand, (1) the maturity of the obligations
guaranteed hereby may be accelerated as provided in Article 6
of the Indenture for the purposes of this Note Guarantee,
notwithstanding any stay, injunction or other prohibition
preventing such acceleration in respect of the obligations
guaranteed hereby, and (2) in the event of any declaration of
acceleration of such obligations as provided in Article 6 of
the Indenture, such obligations (whether or not due and
payable) will forthwith become due and payable by the
Guarantors for the purpose of this Note Guarantee. The
Guarantors will have the right to seek contribution from any
non-paying Guarantor so long as the exercise of such right
does not impair the rights of the Holders under the Note
Guarantee.
(e) In the event of a default in the payment
of principal of, or premium, if any, interest or Additional
Interest, if any, on any Note when and as the same shall
become due, whether at maturity, by acceleration, redemption
or otherwise, or in the
F-2
event of a default in the payment of any interest on the
overdue principal of or interest on such Note, if any, if
lawful, or any other payment obligation of the Company to the
Holder of such Note or the Trustee thereunder, each of the
Trustee and such Holder shall have the right to proceed first
and directly against the Guaranteeing Subsidiary under the
Indenture without first proceeding against the Company or
exhausting any other remedies which the Trustee or such Holder
may have and without resorting to any other security held by
it.
(f) The Trustee shall have the right, power
and authority to do all things it deems necessary or advisable
to enforce the provisions of the Indenture relating to the
Note Guarantee and to protect the interests of the Holders of
the Notes and, in the event of a default in the payment of
principal of, or premium, if any, interest or Additional
Interest, if any, on any Note when and as the same shall
become due, whether at maturity, by acceleration, redemption
or otherwise, or in the event of a default in the payment of
any interest on the overdue principal of or interest on such
Note, if any, if lawful, or any other payment obligation of
the Company to the Holder of such Note or the Trustee
thereunder, the Trustee may institute or appear in such
appropriate judicial proceedings as the Trustee shall deem
most effectual to protect and enforce any of its rights and
the rights of the Holders, whether for the specific
enforcement of any covenant or agreement in the Indenture
relating to the Note Guarantee or in aid of the exercise of
any power granted herein, or to enforce any other proper
remedy. Without limiting the generality of the foregoing, in
the event of a default in the payment of principal of, or
premium, if any, interest or Additional Interest, if any, on
any Note when due, the Trustee may institute a judicial
proceeding for the collection of the sums so due and unpaid,
and may prosecute such proceeding to judgment or final decree,
and may enforce the same against the Guaranteeing Subsidiary
and collect the moneys adjudged or decreed to be payable in
the manner provided by law out of the property of the
Guaranteeing Subsidiary, wherever situated.
(i) Pursuant to Section 10.02 of the Indenture, the
Obligations of the Guaranteeing Subsidiary will be limited to
the maximum amount that will, after giving effect to such
maximum amount and all other contingent and fixed liabilities
of the Guaranteeing Subsidiary, that are relevant under any
applicable Bankruptcy Law, the Uniform Fraudulent Conveyance
Act, the Uniform Fraudulent Transfer Act or any similar
federal or state law relating to fraudulent transfers or
conveyance, and after giving effect to any collections from,
rights to receive contribution from or payments made by or on
behalf of any other Guarantor in respect of the obligations of
such other Guarantor under Article 10 of the Indenture, result
in the obligations of such Guarantor under this Note Guarantee
not constituting a fraudulent transfer or conveyance.
3. EXECUTION AND DELIVERY. The Guaranteeing Subsidiary agrees that the
Note Guarantee shall remain in full force and effect notwithstanding any failure
to endorse on each Note a notation of such Note Guarantee.
4. GUARANTEEING SUBSIDIARY MAY CONSOLIDATE, ETC. ON CERTAIN TERMS.
(a) Except as otherwise provided in Section 5 hereof,
the Guaranteeing Subsidiary may not sell or otherwise dispose
of all or substantially all of its assets to, or consolidate
with or merge with or into (whether or not such Guarantor is
the surviving Person) another Person, other than the Company
or another Guarantor, unless:
F-3
(i) immediately after giving effect to such
transaction, no Default or Event of Default exists; and
(ii) either (A) the Person acquiring the property in
any such sale or disposition or the Person formed by or
surviving any such consolidation or merger (in each case if
other than the Guaranteeing Subsidiary) assumes all the
obligations of that Guarantor under the Indenture, this
Supplemental Indenture and its Note Guarantee pursuant to a
supplemental indenture satisfactory to the Trustee, and under
the Registration Rights Agreement, or (B) if applicable, the
Net Proceeds of such sale or other disposition are applied in
accordance with the applicable provisions of the Indenture,
including without limitation, Section 4.10 thereof.
(b) Upon any consolidation or merger, or any sale or
other disposition of all or substantially all of the assets
of, the Guaranteeing Subsidiary in a transaction that is
subject to, and that complies with the provisions of, Section
4(a) hereof, the successor Person formed by such consolidation
or into or with which such Guarantor is merged or to which
such sale or other disposition is made shall succeed to, and
be substituted for (so that from and after the date of such
consolidation, merger, sale, lease, conveyance or other
disposition, the provisions of the Indenture referring to the
applicable "Guarantor" shall refer instead to the successor
Person and not to such Guarantor), and may exercise every
right and power of such Guarantor under the Indenture, this
Supplemental Indenture and its Note Guarantee with the same
effect as if such successor Person had been named as a
Guarantor herein and therein and the predecessor Guarantor
shall be released from all obligations under the Indenture,
this Supplemental Indenture and its Note Guarantee. Such
successor Person thereupon may cause to be signed any or all
of the Note Guarantees to be endorsed upon all of the Notes
issuable under the Indenture which theretofore shall not have
been signed by the Company and delivered to the Trustee. All
the Note Guarantees so issued will in all respects have the
same legal rank and benefit under the Indenture as the Note
Guarantees theretofore and thereafter issued in accordance
with the terms of the Indenture as though all of such Note
Guarantees had been issued at the date of the execution of the
Indenture
(c) Except as set forth in Articles 4 and 5 and
Section 10.04 of the Indenture, and notwithstanding clauses
(a)(ii) and (b) above, nothing contained in the Indenture or
in any of the Notes shall prevent any consolidation or merger
of the Guaranteeing Subsidiary with or into the Company or
another Guarantor, or shall prevent any sale or other
disposition of all or substantially all of the assets of the
Guaranteeing Subsidiary to the Company or another Guarantor.
5. RELEASES.
(a) In the event of any sale or other disposition of
all or substantially all of the assets of the Guaranteeing
Subsidiary, by way of merger, consolidation or otherwise, or a
sale or other disposition of all of the Capital Stock of the
Guaranteeing Subsidiary, in each case to a Person that is not
(either before or after giving effect to such transactions)
the Company or a Restricted Subsidiary of the Company, then
such Guarantor (in the event of a sale or other disposition,
by way of merger, consolidation or otherwise, of all of the
Capital Stock of such Guarantor) or the Person acquiring the
property (in the event of a sale or other disposition of all
or substantially all of the assets of such Guarantor) will be
released and relieved of any obligations under its Note
Guarantee; provided that the Net Proceeds of such sale or
other disposition are applied in accordance with the
F-4
applicable provisions of the Indenture, including without
limitation Section 4.10 of the Indenture. Upon delivery by the
Company to the Trustee of an Officers' Certificate and an
Opinion of Counsel to the effect that such sale or other
disposition was made by the Company in accordance with the
provisions of the Indenture, including without limitation
Section 4.10 of the Indenture, the Trustee shall execute any
documents reasonably required in order to evidence the release
of the Guaranteeing Subsidiary from its obligations under its
Note Guarantee.
(b) If the Guaranteeing Subsidiary is not released
from its obligations under its Note Guarantee, it shall remain
liable for the full amount of principal of and interest on the
Notes and for the other obligations of any Guarantor under the
Indenture to the extent provided in Article 10 of the
Indenture.
6. No Recourse Against Others. No past, present or future director,
officer, employee, incorporator, or stockholder of the Guaranteeing Subsidiary,
as such, shall have any liability for any obligations of the Company or the
Guaranteeing Subsidiary under the Notes, any Note Guarantees, the Indenture or
this Supplemental Indenture or for any claim based on, in respect of, or by
reason of, such obligations or their creation. Each Holder of the Notes by
accepting a Note waives and releases all such liability. The waiver and release
are part of the consideration for issuance of the Notes. Such waiver may not be
effective to waive liabilities under the federal securities laws.
7. NEW YORK LAW TO GOVERN. THE INTERNAL LAW OF THE STATE OF NEW YORK
SHALL GOVERN AND BE USED TO CONSTRUE THIS SUPPLEMENTAL INDENTURE BUT WITHOUT
GIVING EFFECT TO APPLICABLE PRINCIPLES OF CONFLICTS OF LAW TO THE EXTENT THAT
THE APPLICATION OF THE LAWS OF ANOTHER JURISDICTION WOULD BE REQUIRED THEREBY.
8. Counterparts. The parties may sign any number of copies of this
Supplemental Indenture. Each signed copy shall be an original, but all of them
together represent the same agreement.
9. Effect of Headings. The Section headings herein are for convenience
only and shall not affect the construction hereof.
10. The Trustee. The Trustee shall not be responsible in any manner
whatsoever for or in respect of the validity or sufficiency of this Supplemental
Indenture or for or in respect of the recitals contained herein, all of which
recitals are made solely by the Guaranteeing Subsidiary, the other Guarantors
and the Company.
11. Trust Indenture Act Controls. If any provision of this Supplemental
Indenture limits, qualifies or conflicts with the duties imposed by TIA Section
318(c), the imposed duties will control.
12. Supplemental Indenture Incorporated into Indenture. The terms and
conditions of this Supplemental Indenture shall be deemed to be part of the
Indenture for all purposes with respect to the Notes and the Note Guarantees.
The Indenture is hereby incorporated by reference herein and, as supplemented by
this Supplemental Indenture, is in all respects adopted, ratified and confirmed.
13. Notes Deemed Conformed. As of the date hereof, the provisions of
the Notes shall be deemed to be conformed, without the necessity for any
reissuance or exchange of such Note or any other action on the part of the
Holders, the Company, any Guarantor or the Trustee, so as to reflect this
Supplemental Indenture.
F-5
14. Successors. All agreements of the Guaranteeing Subsidiary in this
Indenture will bind its successors, except as otherwise provided in Section 5.
15. Severability. In case any provision in this Supplemental Indenture
is invalid, illegal or unenforceable, the validity, legality and enforceability
of the remaining provisions will not in any way be affected or impaired thereby.
F-6
IN WITNESS WHEREOF, the parties hereto have caused this Supplemental
Indenture to be duly executed and attested, all as of the date first above
written.
Dated: _______________, 20___
[GUARANTEEING SUBSIDIARY]
By: _______________________________
Name:
Title:
WESTLAKE CHEMICAL CORPORATION
By: _______________________________
Name:
Title:
[EXISTING GUARANTORS]
By: _______________________________
Name:
Title:
[TRUSTEE],
as Trustee
By: _______________________________
Authorized Signatory
F-7