EXHIBIT 4.2
EQUISTAR CHEMICALS, LP
EQUISTAR FUNDING CORPORATION
as Issuers
and
THE BANK OF NEW YORK
as Trustee
Indenture
Dated as of January 15, 1999
EQUISTAR CHEMICALS, LP
EQUISTAR FUNDING CORPORATION
Reconciliation and tie between Trust Indenture Act of 1939
and Indenture, dated as of January 15, 1999
Section of Section(s) of
Trust Indenture Act of 1939 Indenture
- ---------------- ------------------ -----------------
(S) 310 (a)(1)..............................7.10
(a)(2)..............................7.10
(a)(3)....................Not Applicable
(a)(4)....................Not Applicable
(a)(5)..............................7.10
(b)...........................7.08, 7.10
(S) 311 (a).................................7.11
(b).................................7.11
(c).......................Not Applicable
(S) 312 (a).................................2.07
(b)................................10.03
(c)................................10.03
(S) 313 (a).................................7.06
(b).................................7.06
(c).................................7.06
(d).................................7.06
(S) 314 (a)...........................4.03, 4.04
(b).......................Not Applicable
(c)(1).............................10.04
(c)(2).............................10.04
(c)(3)....................Not Applicable
(d).......................Not Applicable
(e)................................10.05
(S) 315 (a)..............................7.01(b)
(b).................................7.05
(c)..............................7.01(a)
(d)..............................7.01(c)
(d)(1)........................7.01(c)(1)
(d)(2)........................7.01(c)(2)
(d)(3)........................7.01(c)(3)
(e).................................6.11
(S) 316 (a)(1)(A)...........................6.05
(a)(1)(B)...........................6.04
(a)(2)....................Not Applicable
i
(a)(last sentence)................2.11
(b)...............................6.07
(S) 317 (a)(1)............................6.08
(a)(2)............................6.09
(b)...............................2.06
(S) 318 (a)..............................10.01
____________
Note: This reconciliation and tie shall not, for any purpose, be deemed to
be a part of the Indenture.
ii
TABLE OF CONTENTS
Page
ARTICLE I DEFINITIONS AND INCORPORATION BY REFERENCE............. 1
SECTION 1.01 Definitions............................................ 1
SECTION 1.02 Other Definitions...................................... 7
SECTION 1.03 Incorporation by Reference of Trust Indenture Act...... 7
SECTION 1.04 Rules of Construction.................................. 8
ARTICLE II THE SECURITIES......................................... 8
SECTION 2.01 Amount Unlimited; Issuable in Series................... 8
SECTION 2.02 Denominations.......................................... 11
SECTION 2.03 Forms Generally........................................ 11
SECTION 2.04 Execution, Authentication, Delivery and Dating......... 12
SECTION 2.05 Registrar and Paying Agent............................. 14
SECTION 2.06 Paying Agent to Hold Money in Trust.................... 14
SECTION 2.07 Holder Lists........................................... 15
SECTION 2.08 Transfer and Exchange.................................. 15
SECTION 2.09 Replacement Securities................................. 16
SECTION 2.10 Outstanding Securities................................. 16
SECTION 2.11 Original Issue Discount, Foreign-Denominated and
Treasury Securities................................... 17
SECTION 2.12 Temporary Securities................................... 17
SECTION 2.13 Cancellation........................................... 17
SECTION 2.14 Payments; Defaulted Interest........................... 18
SECTION 2.15 Persons Deemed Owners.................................. 18
SECTION 2.16 Computation of Interest................................ 18
SECTION 2.17 Global Securities; Book-Entry Provisions............... 18
ARTICLE III REDEMPTION............................................. 21
SECTION 3.01 Applicability of Article............................... 21
SECTION 3.02 Notice to the Trustee.................................. 21
SECTION 3.03 Selection of Securities To Be Redeemed................. 21
SECTION 3.04 Notice of Redemption................................... 22
SECTION 3.05 Effect of Notice of Redemption......................... 22
SECTION 3.06 Deposit of Redemption Price............................ 23
SECTION 3.07 Securities Redeemed or Purchased in Part............... 23
SECTION 3.08 Purchase of Securities................................. 23
SECTION 3.09 Mandatory and Optional Sinking Funds................... 24
SECTION 3.10 Satisfaction of Sinking Fund Payments with Securities.. 24
SECTION 3.11 Redemption of Securities for Sinking Fund.............. 24
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ARTICLE IV COVENANTS.............................................. 25
SECTION 4.01 Payment of Securities.................................. 25
SECTION 4.02 Maintenance of Office or Agency........................ 25
SECTION 4.03 SEC Reports; Financial Statements ..................... 26
SECTION 4.04 Compliance Certificate................................. 26
SECTION 4.05 Corporate Existence.................................... 27
SECTION 4.06 Waiver of Stay, Extension or Usury Laws................ 27
SECTION 4.07 Additional Amounts..................................... 28
SECTION 4.08 Limitation on Liens.................................... 28
SECTION 4.09 Limitation on Sale and Lease-Back Transactions......... 30
ARTICLE V............................................................ 30
SECTION 5.01 Consolidation, Merger and Sale of Assets............... 30
SECTION 5.02 Successor Person Substituted........................... 31
ARTICLE VI DEFAULTS AND REMEDIES.................................. 31
SECTION 6.01 Events of Default...................................... 31
SECTION 6.02 Acceleration........................................... 34
SECTION 6.03 Other Remedies......................................... 34
SECTION 6.04 Waiver of Existing or Past Defaults.................... 34
SECTION 6.05 Control by Majority.................................... 35
SECTION 6.06 Limitations on Suits................................... 35
SECTION 6.07 Rights of Holders to Receive Payment................... 36
SECTION 6.08 Collection Suit by Trustee............................. 36
SECTION 6.09 Trustee May File Proofs of Claim....................... 36
SECTION 6.10 Priorities............................................. 37
SECTION 6.11 Undertaking for Costs.................................. 38
ARTICLE VII TRUSTEE................................................ 38
SECTION 7.01 Other Definitions...................................... 38
SECTION 7.02 Rights of Trustee...................................... 39
SECTION 7.03 May Hold Securities.................................... 40
SECTION 7.04 Trustees Disclaimer.................................... 41
SECTION 7.05 Notice of Defaults..................................... 41
SECTION 7.06 Reports by Trustee to Holders.......................... 41
SECTION 7.07 Compensation and Indemnity............................. 41
SECTION 7.08 Replacement of Trustee................................. 42
SECTION 7.09 Successor Trustee by Merger, etc....................... 44
SECTION 7.10 Eligibility; Disqualification.......................... 44
SECTION 7.11 Preferential Collection of Claims Against Issuers...... 45
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ARTICLE VIII DISCHARGE OF INDENTURE................................. 45
SECTION 8.01 Termination of Issuers Obligations..................... 45
SECTION 8.02 Application of Trust Money............................. 49
SECTION 8.03 Repayment to Issuers................................... 49
SECTION 8.04 Reinstatement.......................................... 50
ARTICLE IX SUPPLEMENTAL INDENTURES AND AMENDMENTS................. 50
SECTION 9.01 Without Consent of Holders............................. 50
SECTION 9.02 With Consent of Holders................................ 52
SECTION 9.03 Compliance with Trust Indenture Act.................... 53
SECTION 9.04 Revocation and Effect of Consents...................... 53
SECTION 9.05 Notation on or Exchange of Securities.................. 54
SECTION 9.06 Trustee to Sign Amendments, etc........................ 54
ARTICLE X MISCELLANEOUS.......................................... 55
SECTION 10.01 Trust Indenture Act Controls........................... 55
SECTION 10.02 Notices................................................ 55
SECTION 10.03 Communication by Holders with Other Holders............ 56
SECTION 10.04 Certificate and Opinion as to Conditions Precedent..... 56
SECTION 10.05 Statements Required in Certificate or Opinion.......... 56
SECTION 10.06 Rules by Trustee and Agents............................ 57
SECTION 10.07 Legal Holidays......................................... 57
SECTION 10.08 No Recourse Against Others............................. 57
SECTION 10.09 Governing Law.......................................... 57
SECTION 10.10 No Adverse Interpretation of Other Agreements.......... 58
SECTION 10.11 Successors............................................. 58
SECTION 10.12 Severability........................................... 58
SECTION 10.13 Counterpart Originals.................................. 58
SECTION 10.14 Table of Contents, Headings, etc....................... 58
iii
INDENTURE dated as of January 15, 1999 among Equistar Chemicals, LP, a
Delaware limited partnership ("Equistar"), Equistar Funding Corporation, a
Delaware corporation ("Equistar Funding" and, together with Equistar, the
"Issuers"), and The Bank of New York, a New York banking corporation, as trustee
(the "Trustee").
Each party agrees as follows for the benefit of the other parties and for
the equal and ratable benefit of the Holders of the Issuers' (i) unsecured
debentures, notes or other evidences of indebtedness (the "Initial Securities")
to be issued from time to time in one or more series as provided in this
Indenture, and, (ii) if and when issued in exchange for Initial Securities,
exchange securities (the "Exchange Securities" and, together with the Initial
Securities, the "Securities" ) as provided in the Registration Rights Agreement
or a similar agreement:
ARTICLE I
DEFINITIONS AND INCORPORATION BY REFERENCE
SECTION 1.01 DEFINITIONS.
"Additional Amounts" means any additional amounts required by the express
terms of a Security or by or pursuant to a Resolution, under circumstances
specified therein or pursuant thereto, to be paid by the Issuers with respect to
certain taxes, assessments or other governmental charges imposed on certain
Holders and that are owing to such Holders.
"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"
of a Person shall mean the power to direct the management and policies of such
Person, directly or indirectly, whether through the ownership of voting
securities, by contract or otherwise, and the terms "controlling" and
"controlled" shall have meanings correlative to the foregoing.
"Agent" means any Registrar or Paying Agent.
"Bankruptcy Law" means Title 11 of the United States Code or any similar
federal, state or foreign law for the relief of debtors.
"Business Day" means any day that is not a Legal Holiday.
"Consolidated Net Tangible Assets" means the total amount of assets (less
applicable reserves and other properly deductible items) after deducting
therefrom (a) all current liabilities (excluding any thereof which are by their
terms extendible or renewable at the option of the obligor thereon to a time
more than 12 months after the time as of which the amount thereof is being
computed), and (b) all goodwill, trade names, trademarks, patents, purchased
technology, unamortized debt discount and other like intangible assets, all as
set forth on the most recent
1
quarterly balance sheet of Equistar and computed in accordance with generally
accepted accounting principles.
"Corporate Trust Office" of the Trustee means the principal corporate trust
office of the Trustee located at 101 Barclay Street, New York, New York 10286,
and as may be located at such other address as the Trustee may give notice to
the Issuers.
"Debt" means notes, bonds, Securities or other similar evidences of
indebtedness for money borrowed.
"Default" means any event, act or condition that is, or after notice or the
passage of time or both would be, an Event of Default.
"Depositary" means, with respect to the Securities of any series issuable
or issued in whole or in part in global form, The Depository Trust Company or
the Person specified pursuant to Section 2.01 hereof as the initial Depositary
with respect to the Securities of such series, until a successor shall have been
appointed and become such pursuant to the applicable provision of this
Indenture, and thereafter "Depositary" shall mean or include such successor.
"Dollar" or "$" means a dollar or other equivalent unit in such currency of
the United States as at the time shall be legal tender for the payment of public
and private debt.
"Equistar Funding Board of Directors" means the Board of Directors of
Equistar Funding or any committee thereof duly authorized, with respect to any
particular matter, to act by or on behalf of the Board of Directors of Equistar
Funding.
"Exchange Act" means the Securities Exchange Act of 1934, as amended, and
any successor statute.
"Funded Debt" means indebtedness of either of the Issuers (including
Securities, provided that Securities may only be redeemed at the redemption
prices and in accordance with the other provisions of the form thereof),
maturing by the terms thereof more than one year after the original creation
thereof and ranking at least pari passu with the Securities.
"GAAP" means generally accepted accounting principles in the United States
set forth in the opinions and pronouncements of the Accounting Principles Board
of the American Institute of Certified Public Accountants and statements and
pronouncements of the Financial Accounting Standards Board or in such other
statements by such other entity as may be approved by a significant segment of
the accounting profession of the United States, as in effect from time to time.
"Global Security" means a Security that is issued in global form and
registered in the name of the Depositary with respect thereto or its nominee.
2
"Government Obligations" means, with respect to a series of Securities,
direct obligations of the government that issues the currency in which the
Securities of the series are payable for the payment of which the full faith and
credit of such government is pledged, or obligations of a person controlled or
supervised by and acting as an agency or instrumentality of such government, the
payment of which is unconditionally guaranteed as a full faith and credit
obligation by such government.
"Holder" means a Person in whose name a Security is registered.
"Indenture" means this Indenture as amended or supplemented from time to
time, and includes the terms of a particular series of Securities established as
contemplated by Section 2.01.
"Interest" means, with respect to an Original Issue Discount Security that
by its terms bears interest only after Maturity, interest payable after
Maturity.
"Interest Payment Date," when used with respect to any Security, shall
have the meaning assigned to such term in the Security as contemplated by
Section 2.01.
"Issue Date" means, with respect to Securities of a series, the date on
which the Securities of such series are originally issued under this Indenture.
"Issuers" means the Persons named as the "Issuers" in the first paragraph
of this instrument until a successor or successors shall have become such
pursuant to the applicable provisions of this Indenture, and thereafter
"Issuers" shall mean such successor and the remaining Issuer or the successors,
as the case may be; provided, however, that for purposes of any provision
contained herein which is required by the TIA, "Issuers" shall also mean each
other obligor (if any) on the Securities of a series.
"Issuers Order" and "Issuers Request" mean, respectively, a written order
or request signed in the name of each of the Issuers by two Officers of each of
the Issuers, and delivered to the Trustee.
"Joint Venture" means (1) with respect to properties located in the United
States, any partnership, corporation or other entity, in which up to and
including 50% of the partnership interests, outstanding voting stock or other
equity interests is owned, directly or indirectly, by either of the Issuers
and/or one or more Subsidiaries, and (2) with respect to properties located
outside the United States, any partnership, corporation or other entity, in
which up to and including 60% of the partnership interests, outstanding voting
stock or other equity interests is owned, directly or indirectly, by either of
the Issuers and/or one or more Subsidiaries. A Joint Venture shall not be a
Subsidiary.
3
"Legal Holiday" means a Saturday, a Sunday or a day on which banking
institutions in any of The City of New York, New York, Houston, Texas or a Place
of Payment are authorized or obligated by law, regulation or executive order to
remain closed.
"Liens" means any mortgages, liens, pledges or other encumbrances.
"Maturity " means, with respect to any Security, the date on which the
principal of such Security or an installment of principal becomes due and
payable as therein or herein provided, whether at the Stated Maturity thereof,
or by declaration of acceleration, call for redemption or otherwise.
"Officer" means the Chief Executive Officer, the President, any Vice
President, the chief financial officer, the Treasurer, any Assistant Treasurer,
the Controller, the Secretary or any Assistant Secretary of a Person.
"Officers' Certificate" means a certificate signed on behalf of Equistar by
two Officers of Equistar and on behalf of Equistar Funding by two Officers of
Equistar Funding.
"Opinion of Counsel" means a written opinion from legal counsel who is
acceptable to the Trustee. Such counsel may be an employee of or counsel to the
Issuers or the Trustee.
"Original Issue Discount Security" means any Security that provides for an
amount less than the principal amount thereof to be due and payable upon a
declaration of acceleration of the Maturity thereof pursuant to Section 6.02.
"Partnership Governance Committee" means the Partnership Governance
Committee of Equistar or any committee thereof duly authorized, with respect to
any particular matter, to act by or on behalf of the Partnership Governance
Committee of Equistar.
"Person" means any individual, corporation, partnership, joint venture,
association, joint stock company, trust, unincorporated organization or
government or any agency or political subdivision thereof or other entity of any
kind.
"Place of Payment" means, with respect to the Securities of any series,
the place or places where the principal of, premium (if any) on and interest on
the Securities of that series are payable as specified in accordance with
Section 2.01 subject to the provisions of Section 4.02.
"Principal" of a Security means the principal of the Security plus, when
appropriate, the premium, if any, on the Security.
"Redemption Date" means, with respect to any Security to be redeemed, the
date fixed for such redemption pursuant to this Indenture.
4
"Redemption Price" means, with respect to any Security to be redeemed, the
price at which it is to be redeemed pursuant to this Indenture.
"Registration Rights Agreement" means the Registration Rights Agreement
among the Issuers, Chase Securities Inc. and NationsBanc Montgomery Securities
LLC dated as of February 16, 1999.
"Repayment Date" means, with respect to any Security to be repaid, the date
fixed for such repayment pursuant to this Indenture.
"Resolution" means (i) a copy of a resolution certified by the Secretary or
an Assistant Secretary of Equistar to have been duly adopted by the Partnership
Governance Committee and to be in full force and effect on the date of such
certification, together with (ii) a copy of a resolution certified by the
Secretary or an Assistant Secretary of Equistar Funding to have been duly
adopted by the Equistar Funding Board of Directors and to be in full force and
effect on the date of such certification; and in the case of both of (i) and
(ii), delivered to the Trustee.
"Restricted Property" means:
(a) any plant for the production of petrochemicals owned by Equistar
or a Subsidiary, except (i) related facilities which in the opinion of the
Partnership Governance Committee are transportation or marketing
facilities, and (ii) any plant for the production of petrochemicals which
in the opinion of the Partnership Governance Committee is not a principal
plant of Equistar and its Subsidiaries; and
(b) any shares of capital stock or indebtedness of a Restricted
Subsidiary owned by Equistar or a Subsidiary.
"Restricted Subsidiary" means any Subsidiary which owns any Restricted
Property.
"Rule 144A Securities" means Securities of a series designated pursuant to
Section 2.01 as entitled to the benefits of Section 4.03(b).
"Sale and Lease-Back Transaction" means any arrangement with any Person
(other than Equistar or a Subsidiary), or to which any such Person is a party,
providing for the leasing to Equistar or a Restricted Subsidiary for a period of
more than five years of any Restricted Property which has been or is to be sold
or transferred by Equistar or such Restricted Subsidiary to such Person or to
any other Person (other than Equistar or a Subsidiary), to which funds have been
or are to be advanced by such Person on the security of the leased property.
"SEC" means the Securities and Exchange Commission.
5
"Securities" has the meaning stated in the preamble of this Indenture and
more particularly means any Securities authenticated and delivered under this
Indenture.
"Security Custodian" means, with respect to Securities of a series, the
Trustee for Securities of such series, as custodian with respect to the
Securities of such series issued in global form, or any successor entity
thereto.
"Stated Maturity" means, when used with respect to any Security or any
installment of principal thereof or interest thereon, the date specified in such
Security as the fixed date on which the principal of such Security or such
installment of principal or interest is due and payable.
"Subsidiary" means any corporation at least a majority of the outstanding
securities of which having ordinary voting power to elect a majority of the
board of directors of such corporation (whether or not any other class of
securities has or might have voting power by reason of the happening of a
contingency) is at the time owned or controlled directly or indirectly by
Equistar or one or more Subsidiaries or by Equistar and one or more
Subsidiaries.
"TIA" means the Trust Indenture Act of 1939, as amended (15 U.S.C. (S)(S)
77aaa-77bbbb), as in effect on the date hereof.
"Trust Officer" means, when used with respect to the Trustee, any officer
within the corporate trust department of the Trustee, including any vice
president, assistant vice president, assistant secretary, assistant treasurer,
trust officer or any other officer of the Trustee who customarily performs
functions similar to those performed by the Persons who at the time shall be
such officers, respectively, or to whom any corporate trust matter is referred
because of such person's knowledge of and familiarity with the particular
subject and who shall have direct responsibility for the administration of this
Indenture.
"Trustee" means the Person, not in its individual capacity but solely as
Trustee, named as such above, until a successor replaces it in accordance with
the applicable provisions of this Indenture, and thereafter "Trustee" means each
Person who is then a Trustee hereunder, and if at any time there is more than
one such Person, "Trustee" as used with respect to the Securities of any series
means the Trustee with respect to Securities of that series.
"United States " means the United States of America (including the States
and the District of Columbia) and its "possessions," which include Puerto Rico,
the U.S. Virgin Islands, Guam, American Samoa, Wake Island and the Northern
Mariana Islands.
"United States Alien" means any Person who, for United States federal
income tax purposes, is a foreign corporation, a nonresident alien individual, a
nonresident alien or foreign fiduciary of an estate or trust, or a foreign
partnership.
6
"U.S. Government Obligations" means Government Obligations with respect to
Securities payable in Dollars.
"Value" means, with respect to a Sale and Lease-Back Transaction, the
amount equal to the greater of (i) the net proceeds of the sale or transfer of
the property leased pursuant to such Sale and Lease-Back Transaction or (ii) the
fair value, in the opinion of the Partnership Governance Committee, of such
property at the time of entering into such Sale and Lease-Back Transaction, in
either case divided first by the number of full years of the term of the lease
and then multiplied by the number of full years of such term remaining at the
time of determination, without regard to any renewal or extension options
contained in the lease.
SECTION 1.02 OTHER DEFINITIONS
DEFINED TERM IN SECTION
"Bankruptcy Custodian".............................. 6.01
"covenant defeasance"............................... 8.01
"Conversion Event".................................. 6.01
"Event of Default".................................. 6.01
"Equistar"..........................................Preamble
"Equistar Funding"..................................Preamble
"Exchange Securities"...............................Preamble
"Exchange Rate"..................................... 2.11
"Initial Securities"................................Preamble
"Judgment Currency"................................. 6.10
"legal defeasance".................................. 8.01
"mandatory sinking fund payment".................... 3.09
"optional sinking fund payment"..................... 3.09
"Paying Agent"...................................... 2.05
"Registrar"......................................... 2.05
"Required Currency"................................. 6.10
"Successor"......................................... 5.01
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 Securities.
7
"Indenture Security Holder" means a Holder.
"Indenture to be Qualified" means this Indenture.
"Indenture Trustee" or "Institutional Trustee" means the Trustee.
"Obligor" on the indenture securities means the Issuers or any other
obligor on the Securities.
All terms used in this Indenture that are defined by the TIA, defined by a
TIA reference to another statute or defined by an 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 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) provisions apply to successive events and transactions; and
(6) all references in this Agreement to Articles and Sections are
references to the corresponding Articles and Sections in and of this
Indenture.
ARTICLE II
THE SECURITIES
SECTION 2.01 AMOUNT UNLIMITED; ISSUABLE IN SERIES.
The aggregate principal amount of Securities that may be authenticated and
delivered under this Indenture is unlimited.
The Securities may be issued in one or more series. There shall be
established in or pursuant to a Resolution, and set forth in an Officers'
Certificate, or established in one or more indentures supplemental hereto, prior
to the issuance of Securities of any series:
8
(1) the title of the Securities of the series (which shall
distinguish the Securities of the series from the Securities of all other
series);
(2) any limit upon the aggregate principal amount of the Securities
of the series that may be authenticated and delivered under this Indenture
(except for Securities authenticated and delivered upon registration of
transfer of, or in exchange for, or in lieu of, other Securities of the
series pursuant to Section 2.08, 2.09, 2.12, 3.07 or 9.05);
(3) whether any Securities of the series are to be issuable initially
in temporary global form and whether any Securities of the series are to be
issuable in permanent global form, as Global Securities or otherwise, and,
if so, whether beneficial owners of interests in any such Global Security
may exchange such interests for Securities of such series and of like tenor
of any authorized form and denomination and the circumstances under which
any such exchanges may occur, if other than in the manner provided in
Section 2.17, and the initial Depositary for any Global Security or
Securities of such series, if other than The Depository Trust Company;
(4) the manner in which any interest payable on a temporary Global
Security on any Interest Payment Date will be paid if other than in the
manner provided in Section 2.14;
(5) the date or dates on which the principal of (and premium, if any,
on) the Securities of the series is payable or the method of determination
thereof;
(6) the rate or rates, or the method of determination thereof, at
which the Securities of the series shall bear interest, if any, whether and
under what circumstances Additional Amounts with respect to such Securities
shall be payable, the date or dates from which such interest shall accrue,
the Interest Payment Dates on which such interest shall be payable and the
record date for the interest payable on any Securities on any Interest
Payment Date, or if other than provided herein, the Person to whom any
interest on Securities of the series shall be payable;
(7) the place or places where, subject to the provisions of Section
4.02, the principal, premium (if any), interest and any Additional Amounts
with respect to the Securities of the series shall be payable;
(8) the period or periods within which, the price or prices (whether
denominated in cash, securities or otherwise) at which and the terms and
conditions upon which Securities of the series may be redeemed, in whole or
in part, at the option of the Issuers, if the Issuers are to have that
option, and the manner in which the Issuers must exercise any such option,
if different from those set forth herein;
9
(9) the obligation, if any, of the Issuers to redeem, purchase or
repay Securities of the series pursuant to any sinking fund or analogous
provisions or at the option of a Holder thereof and the period or periods
within which, the price or prices (whether denominated in cash, securities
or otherwise) at which and the terms and conditions upon which Securities
of the series shall be redeemed, purchased or repaid in whole or in part
pursuant to such obligation;
(10) if other than denominations of $1,000 and any integral multiple
thereof, the denomination in which any Securities of that series shall be
issuable;
(11) if other than Dollars, the currency or currencies (including
composite currencies) or the form, including equity securities, other debt
securities (including Securities), warrants or any other securities or
property of the Issuers or any other Person, in which payment of the
principal, premium (if any), interest and any Additional Amounts with
respect to the Securities of the series shall be payable;
(12) if the principal of, premium (if any) or interest on or any
Additional Amounts with respect to the Securities of the series are to be
payable, at the election of the Issuers or a Holder thereof, in a currency
or currencies (including composite currencies) other than that in which the
Securities are stated to be payable, the currency or currencies (including
composite currencies) in which payment of the principal, premium (if any),
interest and any Additional Amounts with respect to Securities of such
series as to which such election is made shall be payable, and the periods
within which and the terms and conditions upon which such election is to be
made;
(13) if the amount of payments of principal, premium (if any),
interest and any Additional Amounts with respect to the Securities of the
series may be determined with reference to any commodities, currencies or
indices, values, rates or prices or any other index or formula, the manner
in which such amounts shall be determined;
(14) if other than the entire principal amount thereof, the portion of
the principal amount of Securities of the series that shall be payable upon
declaration of acceleration of the Maturity thereof pursuant to Section
6.02;
(15) any additional means of satisfaction and discharge of this
Indenture and any additional conditions or limitations to discharge with
respect to Securities of the series pursuant to Article VIII or any
modifications of or deletions from such conditions or limitations;
(16) any deletions or modifications of or additions to the Events of
Default set forth in Section 6.01 or covenants of the Issuers set forth in
Article IV pertaining to the Securities of the series;
10
(17) any restrictions or other provisions with respect to the transfer
or exchange of Securities of the series, which may amend, supplement,
modify or supersede those contained in this Article II;
(18) if the Securities of the series are to be convertible into or
exchangeable for capital stock, other debt securities (including
Securities), warrants, other equity securities or any other securities or
property of the Issuers or any other Person, at the option of the Issuers
or the Holder or upon the occurrence of any condition or event, the terms
and conditions for such conversion or exchange;
(19) if the Securities of the series are to be entitled to the benefit
of Section 4.03(b) (and accordingly constitute Rule 144A Securities); and
(20) any other terms of the series (which terms shall not be
prohibited by the provisions of this Indenture).
All Securities of any one series shall be substantially identical except as
to denomination and except as may otherwise be provided in or pursuant to the
Resolution referred to and (subject to Section 2.03) set forth, or determined in
the manner provided, in the Officers' Certificate referred to or in any such
indenture supplemental hereto.
If any of the terms of the series are established by action taken pursuant
to a Resolution, a copy of an appropriate record of such actions together with
such Resolution shall be set forth in an Officers' Certificate or certified in
the case of each Issuer by the Secretary or an Assistant Secretary of such
Issuer and delivered to the Trustee at or prior to the delivery of the Officers'
Certificate setting forth the terms of the series.
SECTION 2.02 DENOMINATIONS.
The Securities of each series shall be issuable in such denominations as
shall be specified as contemplated by Section 2.01. In the absence of any such
provisions with respect to the Securities of any series, the Securities of such
series denominated in Dollars shall be issuable in denominations of $1,000 and
any integral multiples thereof.
SECTION 2.03 FORMS GENERALLY.
The Securities of each series shall be in fully registered form and in
substantially such form or forms (including temporary or permanent global form)
established by or pursuant to a Resolution or in one or more indentures
supplemental hereto. The Securities may have notations, legends or endorsements
required by law, securities exchange rule, Equistar's partnership agreement or
Equistar Funding's certificate of incorporation, bylaws or other similar
governing documents, agreements to which either of the Issuers are subject, if
any, or usage (provided that any such notation, legend or endorsement is in a
form acceptable to the Issuers). A copy of the
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Resolution establishing the form or forms of Securities of any series shall be
delivered to the Trustee at or prior to the delivery of the Issuers Order
contemplated by Section 2.04 for the authentication and delivery of such
Securities.
The definitive Securities of each series shall be printed, lithographed or
engraved on steel engraved borders or may be produced in any other manner, all
as determined by the officers executing such Securities, as evidenced by their
execution thereof.
The Trustee's certificate of authentication shall be in substantially the
following form:
"This is one of the Securities of the series designated therein
referred to in the within-mentioned Indenture.
The Bank of New York, as Trustee
Dated: By:
--------------------------------------
Authorized Signatory".
SECTION 2.04 EXECUTION, AUTHENTICATION, DELIVERY AND DATING.
Two Officers of each of the Issuers shall sign the Securities on behalf of
the Issuers by manual or facsimile signature. The Issuers' seals, if any, shall
be impressed, affixed, imprinted or reproduced on the Securities and may be in
facsimile form.
If an Officer of either of the Issuers whose signature is on a Security no
longer holds that office at the time the Security is authenticated, the Security
shall be valid nevertheless.
A Security shall not be entitled to any benefit under this Indenture or be
valid or obligatory for any purpose until authenticated by the manual signature
of an authorized signatory of the Trustee, which signature shall be conclusive
evidence that the Security has been authenticated under this Indenture.
Notwithstanding the foregoing, if any Security has been authenticated and
delivered hereunder but never issued and sold by the Issuers, and the Issuers
deliver such Security to the Trustee for cancellation as provided in Section
2.13 together with a written statement (which need not comply with Section 10.05
and need not be accompanied by an Opinion of Counsel) stating that such Security
has never been issued and sold by the Issuers, for all purposes of this
Indenture such Security shall be deemed never to have been authenticated and
delivered hereunder and shall never be entitled to the benefits of this
Indenture.
The Trustee shall authenticate and deliver Securities of a series for
original issue upon an Issuers Order for the authentication and delivery of such
Securities or pursuant to such procedures acceptable to the Trustee as may be
specified from time to time by Issuers Order. Such Issuers Order shall specify
the amount of the Securities to be authenticated, the date on
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which the original issue of Securities is to be authenticated, the name or names
of the initial Holder or Holders and any other terms of the Securities of such
series not otherwise determined. If provided for in such procedures, such
Issuers Order may authorize (1) authentication and delivery of Securities of
such series for original issue from time to time, with certain terms (including,
without limitation, the Maturity dates or dates, original issue date or dates
and interest rate or rates) that differ from Security to Security and (2)
authentication and delivery pursuant to oral or electronic instructions from the
Issuers or their duly authorized agent, which instructions shall be promptly
confirmed in writing.
If the form or terms of the Securities of the series have been established
in or pursuant to one or more Resolutions as permitted by Section 2.01, in
authenticating such Securities, and accepting the additional responsibilities
under this Indenture in relation to such Securities, the Trustee shall be
entitled to receive (in addition to the Issuers Order referred to above and the
other documents required by Section 10.04), and (subject to Section 7.01) shall
be fully protected in relying upon:
(a) an Officers' Certificate setting forth the Resolution and, if
applicable, an appropriate record of any action taken pursuant thereto, as
contemplated by the last paragraph of Section 2.01; and
(b) an Opinion of Counsel to the effect that:
(i) if the form of such Securities has been established by or
pursuant to a Resolution, as is permitted by Section 2.01, that such
form has been established in conformity with the provisions of this
Indenture;
(ii) if the terms of such Securities have been established by or
pursuant to a Resolution, as is permitted by Section 2.01, that such
terms have been established in conformity with the provisions of this
Indenture; and
(iii) that such Securities, when authenticated and delivered by
the Trustee and issued by the Issuers in the manner and subject to any
conditions specified in such Opinion of Counsel, will constitute valid
and binding obligations of the Issuers, enforceable against the
Issuers in accordance with their terms, except as the enforceability
thereof may be limited by applicable bankruptcy, insolvency,
reorganization, moratorium, fraudulent conveyance or other similar
laws in effect from time to time affecting the rights of creditors
generally, and the application of general principles of equity
(regardless of whether such enforceability is considered in a
proceeding in equity or at law).
The Trustee shall not be required to authenticate such Securities if the
issuance of such Securities pursuant to this Indenture would affect the
Trustee's own rights, duties or immunities
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under the Securities and this Indenture or otherwise in a manner not reasonably
acceptable to the Trustee.
The Trustee may appoint an authenticating agent acceptable to the Issuers
to authenticate Securities. Unless limited by the terms of such appointment, an
authenticating agent may authenticate Securities whenever the Trustee may do so.
Each reference in this Indenture to authentication by the Trustee includes
authentication by such agent. An authenticating agent has the same rights as an
Agent to deal with the Issuers or an Affiliate of the Issuers.
Each Security shall be dated the date of its authentication.
SECTION 2.05 REGISTRAR AND PAYING AGENT.
The Issuers shall maintain an office or agency and may designate additional
offices or agencies for each series of Securities where Securities of such
series may be presented for registration of transfer or exchange ("Registrar")
and an office or agency where Securities of such series may be presented for
payment ("Paying Agent"). The Registrar shall keep a register of the Securities
of such series and of their transfer and exchange. The Issuers 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 Issuers shall enter into an appropriate agency agreement with any
Registrar or Paying Agent not a party to this Indenture. The agreement shall
implement the provisions of this Indenture that relate to such Agent. The
Issuers shall notify the Trustee of the name and address of any Agent not a
party to this Indenture. The Issuers may change any Paying Agent or Registrar
without notice to any Holder. If the Issuers fail to appoint or maintain
another entity as Registrar or Paying Agent, the Trustee shall act as such.
Either of the Issuers or any of Equistar's Subsidiaries may act as Paying Agent
or Registrar.
The Issuers initially appoint the Trustee as Registrar and Paying Agent.
SECTION 2.06 PAYING AGENT TO HOLD MONEY IN TRUST.
The Issuers shall require each Paying Agent other than the Trustee to agree
in writing that the Paying Agent will hold in trust for the benefit of Holders
or the Trustee all money held by the Paying Agent for the payment of principal
of, premium, if any, or interest on or any Additional Amounts with respect to
Securities and will notify the Trustee of any default by the Issuers 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 and to account for any
funds disbursed. The Issuers at any time may require a Paying Agent to pay all
money held by it to the Trustee and to account for any funds disbursed. Upon
payment over to the Trustee and upon accounting for any funds disbursed, the
Paying Agent (if other than either of the Issuers or a Subsidiary of Equistar)
shall have no further liability for the money. If either of the Issuers or a
Subsidiary of Equistar
14
acts as Paying Agent, it shall segregate and hold in a separate trust fund for
the benefit of the Holders all money held by it as Paying Agent. Each Paying
Agent shall otherwise comply with TIA (S) 317(b).
SECTION 2.07 HOLDER LISTS.
The Trustee shall preserve in as current a form as is reasonably
practicable the most recent list available to it of the names and addresses of
Holders and shall otherwise comply with TIA (S) 312(a). If the Trustee is not
the Registrar with respect to a series of Securities, the Issuers shall furnish
to the Trustee at least five Business Days before each Interest Payment Date
with respect to such series of Securities, and at such other times as the
Trustee may request in writing, a list in such form and as of such date as the
Trustee may reasonably require of the names and addresses of Holders of such
series, and the Issuers shall otherwise comply with TIA (S) 312(a).
SECTION 2.08 TRANSFER AND EXCHANGE.
Except as set forth in Section 2.17 or as may be provided pursuant to
Section 2.01: When Securities of any series are presented to the Registrar with
the request to register the transfer of such Securities or to exchange such
Securities for an equal principal amount of Securities of the same series of
like tenor and of other authorized denominations, the Registrar shall register
the transfer or make the exchange as requested if is satisfied with the evidence
of ownership and identity of the Person making the request and if its other
requirements for such transactions are met; provided, however, that the
Securities 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.
To permit registrations of transfers and exchanges, the Issuers shall
execute and the Trustee shall authenticate Securities at the Issuers' written
request and submission of the Securities or Global Securities. No service
charge shall be made to a Holder for any registration of transfer or exchange
(except as otherwise expressly permitted herein), but the Issuers may require
payment of a sum sufficient to cover any transfer tax or similar governmental
charge payable in connection therewith (other than such transfer tax or similar
governmental charge payable upon exchanges pursuant to Section 2.12, 3.07 or
9.05). The Trustee shall authenticate Securities in accordance with the
provisions of Section 2.04. Notwithstanding any other provisions of this
Indenture to the contrary, in the event of any redemption in whole or in part,
the Issuers will not be required (i) to register the transfer of or exchange
Securities of any series during a period beginning at the opening of business 15
days before any selection of Securities of that series to be redeemed and ending
at the close of business on the date the relevant notice of redemption is
mailed, (ii) to register the transfer of or exchange any Security or portion
thereof called for redemption, except the unredeemed portion, if any, of a
Security being redeemed in part or (iii) to register the transfer of or exchange
any Security that has been surrendered for
15
repayment at the option of the holder, except the portion, if any, of such
Security not to be so repaid.
The Trustee shall have no obligation or duty to monitor, determine or
inquire as to compliance with any restrictions on transfer imposed under this
Indenture, a Resolution, any indenture supplemental hereto or under applicable
law with respect to any transfer of any interest in any Security (including any
transfers between or among Agent Members (as hereinafter defined) or beneficial
owners of interests in any Global Security) other than to require delivery of
such certificates and other documentation or evidence as are expressly required
by, and to do so if and when expressly required by the terms of, this Indenture,
a Resolution, or any indenture supplemental hereto and to examine the same to
determine substantial compliance as to form with the express requirements
hereof.
SECTION 2.09 REPLACEMENT SECURITIES.
If any mutilated Security is surrendered to the Trustee, or if the Holder
of a Security claims that the Security has been destroyed, lost or stolen and
the Issuers and the Trustee receive evidence to their satisfaction of the
destruction, loss or theft of such Security, the Issuers shall issue and the
Trustee shall authenticate a replacement Security of the same series if the
Trustee's requirements are met. If any such mutilated, destroyed, lost or
stolen Security has become or is to become due and payable, the Issuers in their
discretion may, instead of issuing a new Security, pay such Security. If
required by the Trustee or the Issuers, such Holder must furnish an indemnity
bond that is sufficient in the judgment of the Trustee and the Issuers to
protect the Issuers, the Trustee, any Agent or any authenticating agent from any
loss that any of them may suffer if a Security is replaced. The Issuers and the
Trustee may charge a Holder for their expenses in replacing a Security.
Every replacement Security is an additional obligation of the Issuers.
SECTION 2.10 OUTSTANDING SECURITIES.
The Securities outstanding at any time are all the Securities authenticated
by the Trustee except for those canceled by it, those delivered to it for
cancellation, those reductions in the interest in a Global Security effected by
the Trustee hereunder and those described in this Section 2.10 as not
outstanding.
If a Security is replaced pursuant to Section 2.09, it ceases to be
outstanding unless the Trustee receives proof satisfactory to it that the
replaced Security is held by a bona fide purchaser.
If the principal amount of any Security is considered paid under Section
4.01, it ceases to be outstanding and interest on it ceases to accrue.
16
A Security does not cease to be outstanding because the Issuers or an
Affiliate of the Issuers holds the Security.
SECTION 2.11 ORIGINAL ISSUE DISCOUNT, FOREIGN-DENOMINATED AND TREASURY
SECURITIES.
In determining whether the Holders of the required principal amount of
Securities have concurred in any direction, amendment, supplement, waiver or
consent, (a) the principal amount of an Original Issue Discount Security shall
be the principal amount thereof that would be due and payable as of the date of
such determination upon acceleration of the Maturity thereof pursuant to Section
6.02, (b) the principal amount of a Security denominated in a foreign currency
shall be the Dollar equivalent, as determined by the Issuers by reference to the
noon buying rate in The City of New York for cable transfers for such currency,
as such rate is certified for customs purposes by the Federal Reserve Bank of
New York (the "Exchange Rate") on the date of original issuance of such
Security, of the principal amount (or, in the case of an Original Issue Discount
Security, the Dollar equivalent, as determined by the Issuers by reference to
the Exchange Rate on the date of original issuance of such Security, of the
amount determined as provided in (a) above), of such Security and (c) Securities
owned by the Issuers or any other obligor upon the Securities or any Affiliate
of the Issuers or of such other obligor shall be disregarded, except that, for
the purpose of determining whether the Trustee shall be protected in relying
upon any such direction, amendment, supplement, waiver or consent, only
Securities that the Trustee actually knows are so owned shall be so disregarded.
SECTION 2.12 TEMPORARY SECURITIES.
Until definitive Securities of any series are ready for delivery, the
Issuers may prepare and the Trustee shall authenticate temporary Securities.
Temporary Securities shall be substantially in the form of definitive
Securities, but may have variations that the Issuers consider appropriate for
temporary Securities. Without unreasonable delay, the Issuers shall prepare and
the Trustee shall authenticate definitive Securities in exchange for temporary
Securities. Until so exchanged, the temporary Securities shall in all respects
be entitled to the same benefits under this Indenture as definitive Securities.
SECTION 2.13 CANCELLATION.
The Issuers at any time may deliver Securities to the Trustee for cancellation.
The Registrar and the Paying Agent shall forward to the Trustee any Securities
surrendered to them for registration of transfer, exchange, payment or
redemption or for credit against any sinking fund payment. The Trustee shall
cancel all Securities surrendered for registration of transfer, exchange,
payment, redemption, replacement or cancellation or for credit against any
sinking fund. Unless the Issuers shall direct in writing that canceled
Securities be returned to them, after written notice to the Issuers all canceled
Securities held by the Trustee shall be disposed of in accordance with the usual
disposal procedures of the Trustee, and the Trustee shall maintain a record of
their
17
disposal. The Issuers may not issue new Securities to replace Securities that
have been paid or that have been delivered to the Trustee for cancellation.
SECTION 2.14 PAYMENTS; DEFAULTED INTEREST.
The Issuers will pay interest on the Securities (except defaulted interest)
to the Persons who are registered Holders of Securities at the close of business
on the record date next preceding the Interest Payment Date, even if such
Securities are canceled after such record date and on or before such Interest
Payment Date. The Holder must surrender this Security to a Paying Agent to
collect principal payments. Unless otherwise provided with respect to the
Securities of any series, the Issuers will pay the principal of, premium (if
any) and interest on and Additional Amounts with respect to the Securities in
Dollars.
If the Issuers default in a payment of interest on the Securities, they
shall pay the defaulted interest in any lawful manner plus, to the extent
lawful, interest on the defaulted interest, in each case at the rate provided in
the Securities and in Section 4.01. The Issuers may pay the defaulted interest
to the Persons who are Holders on a subsequent special record date. At least 15
days before any special record date selected by the Issuers, the Issuers (or the
Trustee, in the name of and at the expense of the Issuers upon 20 days' prior
written notice from the Issuers setting forth such record date and the interest
amount to be paid) shall mail to Holders a notice that states the special record
date, the related payment date and the amount of such interest to be paid.
SECTION 2.15 PERSONS DEEMED OWNERS.
The Issuers, the Trustee, any Agent and any authenticating agent may treat
the Person in whose name any Security is registered as the owner of such
Security for the purpose of receiving payments of principal of, premium (if any)
or interest on, or any Additional Amounts with respect to such Security and for
all other purposes. None of the Issuers, the Trustee, any Agent or any
authenticating agent shall be affected by any notice to the contrary.
SECTION 2.16 COMPUTATION OF INTEREST.
Except as otherwise specified as contemplated by Section 2.01 for
Securities of any series, interest on the Securities of each series shall be
computed on the basis of a year comprising twelve 30-day months.
SECTION 2.17 GLOBAL SECURITIES; BOOK-ENTRY PROVISIONS.
If Securities of a series are issuable in global form as a Global Security,
as contemplated by Section 2.01, then, notwithstanding clause (10) of Section
2.01 and the provisions of Section 2.02, any such Global Security shall
represent such of the outstanding Securities of such series as shall be
specified therein and may provide that it shall represent the aggregate amount
of
18
outstanding Securities from time to time endorsed thereon and that the aggregate
amount of outstanding Securities represented thereby may from time to time be
reduced or increased to reflect exchanges or redemptions. Any endorsement of a
Global Security to reflect the amount, or any increase or decrease in the
amount, of outstanding Securities represented thereby shall be made by the
Trustee in such manner and upon instructions given by such Person or Persons as
shall be specified in such Security or in an Issuers Order to be delivered to
the Trustee pursuant to Section 2.04. Subject to the provisions of Section 2.04
and, if applicable, Section 2.12, the Trustee shall deliver and redeliver any
Security in permanent global form in the manner and upon instructions given by
the Person or Persons specified in such Security or in the applicable Issuers
Order. With respect to the Securities of any series that are represented by a
Global Security, the Issuers authorize the execution and delivery by the Trustee
of a letter of representations or other similar agreement or instrument in the
form customarily provided for by the Depositary appointed with respect to such
Global Security. Any Global Security may be deposited with the Depositary or its
nominee, or may remain in the custody of the Trustee pursuant to a FAST Balance
Certificate Agreement or similar agreement between the Trustee and the
Depositary. If an Issuers Order has been, or simultaneously is, delivered, any
instructions by the Issuers with respect to endorsement or delivery or
redelivery of a Security in global form shall be in writing but need not comply
with Section 10.05 and need not be accompanied by an Opinion of Counsel.
Members of, or participants in, the Depositary ("Agent Members") shall have
no rights under this Indenture with respect to any Global Security held on their
behalf by the Depositary, or the Trustee as its custodian, or under such Global
Security and the Depositary may be treated by the Issuers, the Trustee and any
agent of the Issuers or the Trustee as the absolute owner of such Global
Security for all purposes whatsoever. Notwithstanding the foregoing, (i) the
registered holder of a Global Security may grant proxies and otherwise authorize
any Person, including Agent Members and Persons that may hold interests through
Agent Members, to take any action that a Holder is entitled to take under this
Indenture or the Securities and (ii) nothing herein shall prevent the Issuers,
the Trustee or any agent of the Issuers or the Trustee, from giving effect to
any written certification, proxy or other authorization furnished by the
Depositary or shall impair, as between the Depositary and its Agent Members, the
operation of customary practices governing the exercise of the rights of a
beneficial owner of any Security. Notwithstanding Section 2.08, and except as
otherwise provided pursuant to Section 2.01 transfers of a Global Security shall
be limited to transfers of such Global Security in whole, but not in part, to
the Depositary, its successors or their respective nominees. Interests of
beneficial owners in a Global Security may be transferred in accordance with the
rules and procedures of the Depositary. Securities shall be transferred to all
beneficial owners in exchange for their beneficial interests in a Global
Security if, and only if, (1) the Issuers notify the Trustee in writing that the
Depositary is no longer willing or able to act as a depositary or if The
Depository Trust Company ceases to be registered as a clearing agency under the
Exchange Act and a successor Depositary is not appointed within 90 days of such
notice or cessation, (2) the Issuers notify the Trustee in writing that they
elect to cause the issuance of Securities in certificated form or (3) an Event
of Default has occurred with respect to such series and is continuing and the
Registrar has received a request from the Depositary to issue Securities in lieu
of all or a portion
19
of the Global Security (in which case the Issuers shall deliver Securities
within 30 days of such request).
In connection with any transfer of a portion of the beneficial interest in
a Global Security to beneficial owners pursuant to this Section 2.17, the
Registrar shall reflect on its books and records the date and a decrease in the
principal amount of the Global Security in an amount equal to the principal
amount of the beneficial interest in the Global Security to be transferred, and
the Issuers shall execute, and the Trustee upon receipt of an Issuers Order for
the authentication and delivery of Securities shall authenticate and deliver,
one or more Securities of the same series of like tenor and amount.
In connection with the transfer of an entire Global Security to beneficial
owners pursuant to this Section 2.17, the Global Security shall be deemed to be
surrendered to the Trustee for cancellation, and the Issuers shall execute, and
the Trustee shall authenticate and deliver, to each beneficial owner identified
by the Depositary in exchange for its beneficial interest in the Global
Security, an equal aggregate principal amount of Securities of authorized
denominations.
Neither the Issuers nor the Trustee will have any responsibility or
liability for any aspect of the records relating to, or payments made on account
of, Securities by the Depositary, or for maintaining, supervising or reviewing
any records of the Depositary relating to such Securities. Neither the Issuers
nor the Trustee shall be liable for any delay by the related Global Security
Holder or the Depositary in identifying the beneficial owners, and each such
Person may conclusively rely on, and shall be protected in relying on,
instructions from such Global Security Holder or the Depositary for all purposes
(including with respect to the registration and delivery, and the respective
principal amounts, of the Securities to be issued).
The provisions of the last sentence of the third paragraph of Section 2.04
shall apply to any Global Security if such Global Security was never issued and
sold by the Issuers and the Issuers deliver to the Trustee the Global Security
together with written instructions (which need not comply with Section 10.05 and
need not be accompanied by an Opinion of Counsel) with regard to the
cancellation or reduction in the principal amount of Securities represented
thereby, together with the written statement contemplated by the last sentence
of the third paragraph of Section 2.04.
Notwithstanding the provisions of Sections 2.03 and 2.14, unless otherwise
specified as contemplated by Section 2.01, payment of principal of, premium (if
any) and interest on and any Additional Amounts with respect to any Global
Security shall be made to the Person or Persons specified therein.
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ARTICLE III
REDEMPTION
SECTION 3.01 APPLICABILITY OF ARTICLE.
Securities of any series that are redeemable before their Stated Maturity
shall be redeemable in accordance with their terms and (except as otherwise
specified as contemplated by Section 2.01 for Securities of any series) in
accordance with this Article III.
SECTION 3.02 NOTICE TO THE TRUSTEE.
If the Issuers elect to redeem Securities of any series pursuant to this
Indenture, they shall notify the Trustee of the Redemption Date and principal
amount of Securities of such series to be redeemed. The Issuers shall so notify
the Trustee at least 45 days before the Redemption Date (unless a shorter notice
shall be satisfactory to the Trustee) by delivering to the Trustee an Officers'
Certificate stating that such redemption will comply with the provisions of this
Indenture and of the Securities of such series. Any such notice may be canceled
at any time prior to the mailing of such notice of such redemption to any Holder
and shall thereupon be void and of no effect.
SECTION 3.03 SELECTION OF SECURITIES TO BE REDEEMED.
If less than all the Securities of any series are to be redeemed, the
particular Securities to be redeemed shall be selected not more than 60 days
prior to the Redemption Date by the Trustee, from the outstanding Securities of
such series not previously called for redemption, pro rata, by lot or by such
other method as the Trustee shall deem fair and appropriate and that may provide
for the selection for redemption of portions (equal to the minimum authorized
denomination for Securities of that series or any integral multiple thereof) of
the principal amount of Securities of such series of a denomination larger than
the minimum authorized denomination for Securities of that series or of the
principal amount of global Securities of such series.
The Trustee shall promptly notify the Issuers and the Registrar in writing
of the Securities selected for redemption and, in the case of any Securities
selected for partial redemption, the principal amount thereof to be redeemed.
For purposes of this Indenture, unless the context otherwise requires, all
provisions relating to redemption of Securities shall relate, in the case of any
of the Securities redeemed or to be redeemed only in part, to the portion of the
principal amount thereof which has been or is to be redeemed.
21
SECTION 3.04 NOTICE OF REDEMPTION.
Notice of redemption shall be given by first-class mail, postage prepaid,
mailed not less than 30 nor more than 60 days prior to the Redemption Date, to
each Holder of Securities to be redeemed, at the address of such Holder
appearing in the register of Securities maintained by the Registrar.
All notices of redemption shall identify the Securities to be redeemed and
shall state:
(1) the Redemption Date;
(2) the Redemption Price;
(3) that, unless the Issuers defaults in making the redemption
payment, interest on Securities called for redemption ceases to accrue on
and after the Redemption Date, and the only remaining right of the Holders
of such Securities is to receive payment of the Redemption Price upon
surrender to the Paying Agent of the Securities redeemed;
(4) if any Security is to be redeemed in part, the portion of the
principal amount thereof to be redeemed and that on and after the
Redemption Date, upon surrender for cancellation of such Security to the
Paying Agent, a new Security or Securities in the aggregate principal
amount equal to the unredeemed portion thereof will be issued without
charge to the Holder;
(5) that Securities called for redemption must be surrendered to the
Paying Agent to collect the Redemption Price and the name and address of
the Paying Agent;
(6) that the redemption is for a sinking or analogous fund, if such
is the case; and
(7) the CUSIP number, if any, relating to such Securities.
Notice of redemption of Securities to be redeemed at the election of the
Issuers shall be given by the Issuers or, at the Issuers' written request, by
the Trustee in the name and at the expense of the Issuers.
SECTION 3.05 EFFECT OF NOTICE OF REDEMPTION.
Once notice of redemption is mailed, Securities called for redemption
become due and payable on the Redemption Date and at the Redemption Price. Upon
surrender to the Paying Agent, such Securities called for redemption shall be
paid at the Redemption Price, but interest installments whose maturity is on or
prior to such Redemption Date will be payable on the
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relevant Interest Payment Dates to the Holders of record at the close of
business on the relevant record dates specified pursuant to Section 2.01.
SECTION 3.06 DEPOSIT OF REDEMPTION PRICE.
On or prior to any Redemption Date, the Issuers shall deposit with the
Trustee or the Paying Agent (or, if either of the Issuers are acting as Paying
Agent, segregate and hold in trust as provided in Section 2.06) an amount of
money in same day funds sufficient to pay the Redemption Price of, and (except
if the Redemption Date shall be an Interest Payment Date) accrued interest on
and any Additional Amounts with respect to, the Securities or portions thereof
which are to be redeemed on that date, other than Securities or portions thereof
called for redemption on that date which have been delivered by the Issuers to
the Trustee for cancellation.
If the Issuers comply with the preceding paragraph, then, unless the
Issuers default in the payment of such Redemption Price, interest on the
Securities to be redeemed will cease to accrue on and after the applicable
Redemption Date, whether or not such Securities are presented for payment, and
the Holders of such Securities shall have no further rights with respect to such
Securities except for the right to receive the Redemption Price upon surrender
of such Securities. If any Security called for redemption shall not be so paid
upon surrender thereof for redemption, the principal, premium, if any, any
Additional Amounts, and, to the extent lawful, accrued interest thereon shall,
until paid, bear interest from the Redemption Date at the rate specified
pursuant to Section 2.01 or provided in the Securities or, in the case of
Original Issue Discount Securities, such Securities' yield to maturity.
SECTION 3.07 SECURITIES REDEEMED OR PURCHASED IN PART.
Upon surrender to the Paying Agent of a Security to be redeemed in part, the
Issuers shall execute and the Trustee shall authenticate and deliver to the
Holder of such Security without service charge a new Security or Securities, of
the same series and of any authorized denomination as requested by such Holder
in aggregate principal amount equal to, and in exchange for, the unredeemed
portion of the principal of the Security so surrendered that is not redeemed.
SECTION 3.08 PURCHASE OF SECURITIES.
Unless otherwise specified as contemplated by Section 2.01, the Issuers and
any Affiliate of the Issuers may at any time purchase or otherwise acquire
Securities in the open market or by private agreement. Such acquisition shall
not operate as or be deemed for any purpose to be a redemption of the
indebtedness represented by such Securities. Any Securities purchased or
acquired by the Issuers may be delivered to the Trustee and, upon such delivery,
the indebtedness represented thereby shall be deemed to be satisfied. Section
2.13 shall apply to all Securities so delivered.
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SECTION 3.09 MANDATORY AND OPTIONAL SINKING FUNDS.
The minimum amount of any sinking fund payment provided for by the terms of
Securities of any series is herein referred to as a "mandatory sinking fund
payment," and any payment in excess of such minimum amount provided for by the
terms of Securities of any series is herein referred to as an "optional sinking
fund payment." Unless otherwise provided by the terms of Securities of any
series, the cash amount of any sinking fund payment may be subject to reduction
as provided in Section 3.10. Each sinking fund payment shall be applied to the
redemption of Securities of any series as provided for by the terms of
Securities of such series and by this Article III.
SECTION 3.10 SATISFACTION OF SINKING FUND PAYMENTS WITH SECURITIES.
The Issuers may deliver outstanding Securities of a series (other than any
previously called for redemption) and may apply as a credit Securities of a
series that have been redeemed either at the election of the Issuers pursuant to
the terms of such Securities or through the application of permitted optional
sinking fund payments pursuant to the terms of such Securities, in each case in
satisfaction of all or any part of any sinking fund payment with respect to the
Securities of such series required to be made pursuant to the terms of such
series of Securities; provided that such Securities have not been previously so
credited. Such Securities shall be received and credited for such purpose by
the Trustee at the Redemption Price specified in such Securities for redemption
through operation of the sinking fund and the amount of such sinking fund
payment shall be reduced accordingly.
SECTION 3.11 REDEMPTION OF SECURITIES FOR SINKING FUND.
Not less than 45 days prior (unless a shorter period shall be satisfactory
to the Trustee) to each sinking fund payment date for any series of Securities,
the Issuers will deliver to the Trustee an Officers' Certificate specifying the
amount of the next ensuing sinking fund payment for that series pursuant to the
terms of that series, the portion thereof, if any, which is to be satisfied by
payment of cash and the portion thereof, if any, which is to be satisfied by
delivery of or by crediting Securities of that series pursuant to Section 3.10
and will also deliver to the Trustee any Securities to be so delivered. Failure
of the Issuers to timely deliver such Officers' Certificate and Securities
specified in this paragraph, if any, shall not constitute a Default but shall
constitute the election of the Issuers (i) that the mandatory sinking fund
payment for such series due on the next succeeding sinking fund payment date
shall be paid entirely in cash without the option to deliver or credit
Securities of such series in respect thereof and (ii) that the Issuers will make
no optional sinking fund payment with respect to such series as provided in this
Section.
If the sinking fund payment or payments (mandatory or optional or both) to
be made in cash on the next succeeding sinking fund payment date plus any unused
balance of any preceding sinking fund payments made in cash shall exceed
$100,000 (or the Dollar equivalent thereof
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based on the applicable Exchange Rate on the date of original issue of the
applicable Securities) or a lesser sum if the Issuers shall so request with
respect to the Securities of any particular series, such cash shall be applied
on the next succeeding sinking fund payment date to the redemption of Securities
of such series at the sinking fund redemption price together with accrued
interest to the date fixed for redemption. If such amount shall be $100,000 (or
the Dollar equivalent thereof as aforesaid) or less and the Issuers make no such
request then it shall be carried over until a sum in excess of $100,000 (or the
Dollar equivalent thereof as aforesaid) is available. Not less than 30 days
before each such sinking fund payment date, the Trustee shall select the
Securities to be redeemed upon such sinking fund payment date in the manner
specified in Section 3.03 and cause notice of the redemption thereof to be given
in the name of and at the expense of the Issuers in the manner provided in
Section 3.04. Such notice having been duly given, the redemption of such
Securities shall be made upon the terms and in the manner stated in Sections
3.05, 3.06 and 3.07.
ARTICLE IV
COVENANTS
SECTION 4.01 PAYMENT OF SECURITIES.
The Issuers shall pay the principal of, premium (if any) and interest on
and any Additional Amounts with respect to the Securities of each series on the
dates and in the manner provided in the Securities of such series and in this
Indenture. Principal, premium, interest and any Additional Amounts shall be
considered paid on the date due if the Paying Agent, other than either of the
Issuers or a Subsidiary of Equistar, holds on that date money deposited by the
Issuers designated for and sufficient to pay all principal, premium, interest
and any Additional Amounts then due.
The Issuers shall pay interest (including post-petition interest in any
proceeding under any Bankruptcy Law) on overdue principal and premium (if any),
at a rate equal to the then applicable interest rate on the Securities to the
extent lawful; and they shall pay interest (including post-petition interest in
any proceeding under any Bankruptcy Law) on overdue installments of interest and
any Additional Amount (without regard to any applicable grace period) at the
same rate to the extent lawful.
SECTION 4.02 MAINTENANCE OF OFFICE OR AGENCY.
The Issuers will maintain in each Place of Payment for any series of
Securities an office or agency (which may be an office of the Trustee, the
Registrar or the Paying Agent) where Securities of that series may be presented
for registration of transfer or exchange, where Securities of that series may be
presented for payment and where notices and demands to or upon the Issuers in
respect of the Securities of that series and this Indenture may be served.
Unless otherwise designated by the Issuers by written notice to the Trustee,
such office or agency shall be the office of the Trustee in The City of New
York, which on the date hereof, is located at
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101 Barclay Street, New York, New York 10286. The Issuers will give prompt
written notice to the Trustee of the location, and any change in the location,
of such office or agency. If at any time the Issuers shall fail to maintain any
such required office or agency or shall fail to furnish the Trustee with the
address thereof, such presentations, surrenders, notices and demands may be made
or served at the Corporate Trust Office of the Trustee.
The Issuers may also from time to time designate one or more other offices
or agencies where the Securities of one or more series may be presented or
surrendered for any or all such purposes and may from time to time rescind such
designations; provided, however, that no such designation or rescission shall in
any manner relieve the Issuers of their obligation to maintain an office or
agency in each Place of Payment for Securities of any series for such purposes.
The Issuers 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.
Notwithstanding the foregoing, at the option of the Issuers, interest, if
any, may be paid on Securities (i) by check mailed to the Person entitled
thereto at such Person's address appearing in the register maintained by the
Registrar or (ii) by wire transfer to an account located inside the United
States maintained by the Person entitled thereto as specified in the register
maintained by the Registrar.
SECTION 4.03 SEC REPORTS; FINANCIAL STATEMENTS.
(a) The Issuers shall file with the Trustee, within 15 days after
they file the same with the SEC, copies of the annual reports and the
information, documents and other reports (or copies of such portions of any of
the foregoing as the SEC may by rules and regulations prescribe) that either of
the Issuers are required to file with the SEC pursuant to Section 13 or 15(d) of
the Exchange Act. The Issuers shall also comply with the provisions of TIA (S)
314(a).
(b) If the Issuers are not subject to the requirements of Section 13
or 15(d) of the Exchange Act, the Issuers shall furnish to all Holders of Rule
144A Securities and prospective purchasers of Rule 144A Securities designated by
the Holders of Rule 144A Securities, promptly upon their request, the
information required to be delivered pursuant to Rule 144A(d)(4) promulgated
under the Securities Act of 1933, as amended.
Delivery of such reports, information and documents to the Trustee is for
informational purposes only and the Trustee's receipt of such shall not
constitute constructive notice of any information contained therein or
determinable from information contained therein, including the Issuers'
compliance with any of their covenants hereunder (as to which the Trustee is
entitled to rely exclusively on Officers' Certificates).
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SECTION 4.04 COMPLIANCE CERTIFICATE.
(a) The Issuers shall deliver to the Trustee, within 120 days after
the end of each fiscal year of Equistar, a statement signed by two Officers of
each of the Issuers, which need not constitute an Officers' Certificate,
complying with TIA (S) 314(a)(4) and stating that in the course of performance
by the signing Officers of the Issuers of their duties as such Officers of the
Issuers they would normally obtain knowledge of the keeping, observing,
performing and fulfilling by the Issuers of their obligations under this
Indenture, and further stating, as to each such Officer signing such statement,
that to the best of his knowledge the Issuers have kept, observed, performed and
fulfilled each and every covenant contained in this Indenture and are not in
default in the performance or observance of any of the terms, provisions and
conditions hereof (or, if a Default or Event of Default shall have occurred,
describing all such Defaults or Events of Default of which such Officer may have
knowledge and what action the Issuers are taking or proposes to take with
respect thereto).
(b) The Issuers shall, so long as Securities of any series are
outstanding, deliver to the Trustee, forthwith upon any Officer of either of the
Issuers becoming aware of any Default or Event of Default under this Indenture,
an Officers' Certificate specifying such Default or Event of Default and what
action the Issuers are taking or propose to take with respect thereto.
SECTION 4.05 CORPORATE EXISTENCE.
Subject to Article V hereof, the Issuers shall do or cause to be done all
things necessary to preserve and keep in full force and effect their existence
and the corporate, partnership and other existence of each of Equistar's
Subsidiaries and all rights (charter and statutory) and franchises of the
Issuers and Equistar's Subsidiaries, provided that Equistar shall not be
required to preserve the corporate existence of any Subsidiary or any such right
or franchise if the Partnership Governance Committee shall determine that the
preservation thereof is no longer desirable in the conduct of the business of
Equistar and its Subsidiaries taken as a whole and that the loss thereof would
not have a material adverse effect on the business, prospects, assets or
financial condition of the Issuers and Equistar's Subsidiaries taken as a whole
and would not have any material adverse effect on the payment and performance of
the obligations of the Issuers under the Securities and this Indenture.
SECTION 4.06 WAIVER OF STAY, EXTENSION OR USURY LAWS.
The Issuers covenant (to the extent that they may lawfully do so) that they
will not at any time insist upon, or plead, or in any manner whatsoever claim or
take the benefit or advantage of, any stay or extension law or any usury law or
other law that would prohibit or forgive the Issuers from paying all or any
portion of the principal of or interest on the Securities as contemplated
herein, wherever enacted, now or at any time hereafter in force, or which may
affect the covenants or the performance of this Indenture; and (to the extent
that they may lawfully do so) the Issuers hereby expressly waive all benefit or
advantage of any such law, and covenant that they will not hinder, delay or
impede the execution of any power herein granted to the Trustee,
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but will suffer and permit the execution of every such power as though no such
law had been enacted.
SECTION 4.07 ADDITIONAL AMOUNTS.
If the Securities of a series expressly provide for the payment of
Additional Amounts, the Issuers will pay to the Holder of any Security of such
series Additional Amounts as expressly provided therein. Whenever in this
Indenture there is mentioned, in any context, the payment of the principal of or
any premium or interest on, or in respect of, any Security of any series or the
net proceeds received from the sale or exchange of any Security of any series,
such mention shall be deemed to include mention of the payment of Additional
Amounts provided for in this Section 4.07 to the extent that, in such context,
Additional Amounts are, were or would be payable in respect thereof pursuant to
the provisions of this Section 4.07 and express mention of the payment of
Additional Amounts (if applicable) in any provisions hereof shall not be
construed as excluding Additional Amounts in those provisions hereof where such
express mention is not made.
Unless otherwise provided pursuant to Section 2.01 with respect to
Securities of any series: If the Securities of a series provide for the payment
of Additional Amounts, at least ten days prior to the first Interest Payment
Date with respect to that series of Securities (or if the Securities of that
series will not bear interest prior to Maturity, the first day on which a
payment of principal and any premium is made), and at least ten days prior to
each date of payment of principal and any premium or interest if there has been
any change with respect to the matters set forth in the below-mentioned
Officers' Certificate, the Issuers shall furnish the Trustee and the Issuers'
principal Paying Agent or Paying Agents, if other than the Trustee, with an
Officers' Certificate instructing the Trustee and such Paying Agent or Paying
Agents whether such payment of principal of and any premium or interest on the
Securities of that series shall be made to Holders of Securities of that series
who are United States Aliens without withholding for or on account of any tax,
assessment or other governmental charge described in the Securities of that
series. If any such withholding shall be required, then such Officers'
Certificate shall specify by country the amount, if any, required to be withheld
on such payments to such Holders of Securities and the Issuers will pay to such
Paying Agent the Additional Amounts required by this Section. The Issuers
covenant to indemnify the Trustee and any Paying Agent for and to hold them
harmless against any loss, liability or expense reasonably incurred without
negligence or bad faith on their part arising out of or in connection with
actions taken or omitted by any of them in reliance on any Officers' Certificate
furnished pursuant to this Section 4.07.
SECTION 4.08 LIMITATION ON LIENS.
Equistar will not, and will not permit any Restricted Subsidiary to, issue,
assume or guarantee any Debt secured by Liens upon any Restricted Property,
without effectively providing that any Securities then outstanding and
thereafter created (together with, if Equistar so determines, any other
indebtedness or obligation then existing and any other indebtedness or
28
obligation thereafter created ranking equally with the Securities then
outstanding or thereafter created which is not subordinated to the Securities of
each series) shall be secured equally and ratably with (or prior to) such Debt
so long as such Debt shall be so secured, except that the foregoing provision
shall not apply to:
(a) Liens affecting property of a corporation existing at the time it
becomes a Subsidiary or at the time it is merged into or consolidated with
Equistar or a Subsidiary;
(b) Liens on property existing at the time of acquisition thereof or
incurred to secure payment of all or part of the purchase price thereof or
to secure Debt incurred prior to, at the time of or within 24 months after
acquisition thereof for the purpose of financing all or part of the
purchase price thereof;
(c) Liens on property of Equistar or a Subsidiary existing on the
date of this Indenture;
(d) Liens on any property to secure all or part of the cost of
construction or improvements thereon or Debt incurred to provide funds for
any such purpose in a principal amount not exceeding the cost of such
construction or improvements;
(e) Liens which secure only an indebtedness owing by a Subsidiary to
Equistar or a Subsidiary;
(f) Liens in favor of the United States or any state thereof, or any
department, agency, instrumentality, or political subdivision of any such
jurisdiction, to secure partial progress, advance or other payments
pursuant to any contract or statute or to secure any indebtedness incurred
for the purpose of financing all or any part of the purchase price or cost
of constructing or improving the property subject thereto, including,
without limitation, Liens to secure Debt of the pollution control or
industrial revenue bond type;
(g) Liens required by any contract or statute in order to permit
Equistar or a Subsidiary to perform any contract or subcontract made by it
with or at the request of the United States of America, any state or any
department, agency or instrumentality or political subdivision of either;
or
(h) any extension, renewal or replacement (or successive extensions,
renewals or replacements), in whole or in part, of any Lien referred to in
the foregoing clauses (a) to (g) inclusive, or of any Debt secured thereby,
provided that the principal amount of Debt secured thereby shall not exceed
the greater of (i) the principal amount of Debt so secured or (ii) the fair
market value of the underlying property or assets to which such Lien
relates at the time of such extension, renewal or replacement, and that
such extension, renewal or replacement Lien shall be limited to all or part
of substantially the
29
same property which secured the Lien extended, renewed or replaced (plus
improvements on such property).
Notwithstanding the foregoing provisions of this Section 4.08, Equistar and
any one or more Restricted Subsidiaries may issue, assume or guarantee Debt
secured by Liens which would otherwise be subject to the foregoing restrictions
in an aggregate principal amount which, together with the aggregate outstanding
principal amount of all other Debt of Equistar and the Restricted Subsidiaries
which would otherwise be subject to the foregoing restrictions (not including
Debt permitted to be secured under clauses (a) to (h) inclusive above) and the
aggregate Value of the Sale and Lease-Back Transactions in existence at such
time (not including Sale and Lease-Back Transactions as to which Equistar has
complied with Section 4.09(b)), does not at any one time exceed 15% of the
Consolidated Net Tangible Assets of Equistar and its consolidated Subsidiaries.
SECTION 4.09 LIMITATION ON SALE AND LEASE-BACK TRANSACTIONS.
Equistar will not, and will not permit any Restricted Subsidiary to, enter
into any Sale and Lease-Back Transactions unless either:
(a) Equistar or such Restricted Subsidiary would be entitled,
pursuant to Section 4.08, to incur Debt in a principal amount equal to or
exceeding the Value of such Sale and Lease-Back Transaction, secured by a
Lien on the property to be leased, without equally and ratably securing the
Securities; or
(b) Equistar (and in any such case Equistar covenants and agrees that
it will do so) within four months after the effective date of such Sale and
Lease-Back Transaction (whether made by Equistar or a Restricted
Subsidiary) applies to the voluntary retirement of Funded Debt, an amount
equal to the Value of such Sale and Lease-Back Transaction, less the
principal amount of Securities delivered, within four months after the
effective date of such arrangements, to the Trustee for retirement and
cancellation and the principal amount of other Funded Debt voluntarily
retired by the Issuers within such four-month period, excluding retirements
of Securities and other Funded Debt as a result of conversions or pursuant
to mandatory sinking fund or prepayment provisions or by payment at
maturity.
ARTICLE V
SECTION 5.01 CONSOLIDATION, MERGER AND SALE OF ASSETS
Each of the Issuers may not consolidate with or merge into, or sell,
assign, transfer, lease, convey or otherwise dispose of all or substantially all
of its assets to, any Person, unless each of the following conditions is
satisfied.
30
(a) Immediately after giving effect to such transaction, no Default
or Event of Default will have happened and be continuing;
(b) Either (i) the applicable Issuer shall be the continuing
partnership or corporation, as applicable, or (ii) the entity formed by
such consolidation or into which the applicable Issuer is merged, or the
Person to which such properties and assets will have been conveyed,
transferred or leased, assumes the applicable Issuer's obligation as to the
due and punctual payment of the principal of (and premium, if any, on) and
interest, if any, on the Securities and the performance and observance of
every covenant to be performed by the applicable Issuer hereunder; any such
entity will be organized under the laws of the United States, one of the
States thereof or the District of Columbia; and
The Issuers have delivered to the Trustee an Officers' Certificate and
Opinion of Counsel stating that the transaction complies with these
conditions.
In the event of any transaction described in this Section 5.01, if any
Restricted Property would thereupon become subject to any Lien, the Securities
will be secured, as to such Restricted Property, equally and ratably with (or
prior to) the Debt that upon the occurrence of such transaction would become
secured by such Lien, unless such Lien could be created under this Indenture
without equally and ratably securing such Securities.
SECTION 5.02 SUCCESSOR PERSON SUBSTITUTED.
Upon any consolidation or merger of either of the Issuers or any sale,
assignment, transfer, lease, conveyance or other disposition of all or
substantially all of the assets of either of the Issuers in accordance with
Section 5.01, the Successor formed by such consolidation or into or with which
the applicable Issuer is merged or to which such sale, assignment, transfer,
lease, conveyance or other disposition is made shall succeed to, and be
substituted for, and may exercise every right and power of the applicable Issuer
under this Indenture and the Securities with the same effect as if such
Successor had been named as the Issuer herein and the predecessor Issuer shall
be discharged from all obligations and covenants under this Indenture and all
obligations under the Securities.
ARTICLE VI
DEFAULTS AND REMEDIES
SECTION 6.01 EVENTS OF DEFAULT.
Unless either inapplicable to a particular series or specifically deleted
or modified in or pursuant to the supplemental indenture or Resolution
establishing such series of Securities or in
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the form of Security for such series, an "Event of Default," wherever used
herein with respect to Securities of any series, occurs if:
(1) the Issuers default in the payment of interest on or any
Additional Amounts with respect to any Security of that series when the
same becomes due and payable and such default continues for a period of 30
days;
(2) the Issuers default in the payment of (A) the principal of any
Security of that series at its Maturity or (B) premium (if any) on any
Security of that series when the same becomes due and payable;
(3) the Issuers default in the deposit of any sinking fund payment,
when and as due by the terms of a Security of that series, and such default
continues for a period of 30 days;
(4) the Issuers fail to observe or perform any other covenant or
agreement contained herein for 60 days after written notice of such failure
(other than an agreement, covenant or provision that has expressly been
included in this Indenture solely for the benefit of one or more series of
Securities other than that series), requiring the Issuers to remedy the
same, has been given to the Issuers by the Trustee or to the Issuers and
the Trustee by the holders of at least 25% in aggregate principal amount of
outstanding Securities affected by such default;
(5) either of the Issuers pursuant to or within the meaning of any
Bankruptcy Law:
(A) commences a voluntary case,
(B) consents to the entry of an order for relief against it in
an involuntary case,
(C) consents to the appointment of a Bankruptcy Custodian of it
or for all or substantially all of its property, or
(D) makes a general assignment for the benefit of its creditors;
(6) a court of competent jurisdiction enters an order or decree under
any Bankruptcy Law that remains unstayed and in effect for 90 days and
that:
(A) is for relief against either of the Issuers as debtor in an
involuntary case,
32
(B) appoints a Bankruptcy Custodian of either of the Issuers or
a Bankruptcy Custodian for all or substantially all of the property of
either of the Issuers, or
(C) orders the liquidation of either of the Issuers; or
(D) any other Event of Default provided with respect to
Securities of that series occurs.
The term "Bankruptcy Custodian" means any receiver, trustee, assignee,
liquidator or similar official under any Bankruptcy Law.
The Trustee shall not be deemed to know or have notice of a Default unless
a Trust Officer at the Corporate Trust Office of the Trustee receives written
notice at the Corporate Trust Office of the Trustee of such Default with
specific reference to such Default.
When a Default is cured, it ceases.
Notwithstanding the foregoing provisions of this Section 6.01, if the
principal of, premium or interest on or Additional Amounts with respect to any
Security is payable in a currency or currencies (including a composite currency)
other than Dollars and such currency or currencies are not available to the
Issuers for making payment thereof due to the imposition of exchange controls or
other circumstances beyond the control of the Issuers (a "Conversion Event"),
the Issuers will be entitled to satisfy their obligations to Holders of the
Securities by making such payment in Dollars in an amount equal to the Dollar
equivalent of the amount payable in such other currency, as determined by the
Issuers by reference to the Exchange Rate on the date of such payment, or, if
such rate is not then available, on the basis of the most recently available
Exchange Rate. Notwithstanding the foregoing provisions of this Section 6.01,
any payment made under such circumstances in Dollars where the required payment
is in a currency other than Dollars will not constitute an Event of Default
under this Indenture.
Promptly after the occurrence of a Conversion Event, the Issuers shall give
written notice thereof to the Trustee; and the Trustee, promptly after receipt
of such notice, shall give notice thereof in the manner provided in Section
10.02 to the Holders. Promptly after the making of any payment in Dollars as a
result of a Conversion Event, the Issuers shall give notice in the manner
provided in Section 10.02 to the Holders, setting forth the applicable Exchange
Rate and describing the calculation of such payments.
A Default under clause (7) of this Section 6.01 is not an Event of Default
until the Trustee notifies the Issuers, or the Holders of at least 25% in
principal amount of the then outstanding Securities of the series affected by
such Default notify the Issuers and the Trustee, of the Default, and the Issuers
fails to cure the Default within 90 days after receipt of the notice. The
notice
33
must specify the Default, demand that it be remedied and state that the notice
is a "Notice of Default."
SECTION 6.02 ACCELERATION.
If an Event of Default with respect to any Securities of any series at the
time outstanding (other than an Event of Default specified in clause (5) or (6)
of Section 6.01) occurs and is continuing, the Trustee by notice to the Issuers,
or the Holders of at least 25% in principal amount of the then outstanding
Securities of the series affected by such Default (or, in the case of an Event
of Default described in clause (4) of Section 6.01, if outstanding Securities of
other series are affected by such Default, then at least 25% in principal amount
of the then outstanding Securities so affected by notice to the Issuers and the
Trustee, may declare the principal of (or, if any such Securities are Original
Issue Discount Securities, such portion of the principal amount as may be
specified in the terms of that series) and accrued and unpaid interest on all
then outstanding Securities of such series or of all series, as the case may
be), to be due and payable. Upon any such declaration the amounts due and
payable on the Securities shall be due and payable immediately. If an Event of
Default specified in clause (5) or (6) of Section 6.01 hereof occurs, such
amounts shall ipso facto become and be immediately due and payable without any
declaration, notice or other act on the part of the Trustee or any Holder. At
any time after a declaration of acceleration with respect to Securities has been
made, but before judgment or decree for payment of money has been obtained by
the Trustee (as hereinafter in this Article provided), the Holders of a majority
in principal amount of the then outstanding Securities of the series affected by
such Default or all series, as the case may be, by written notice to the Trustee
may rescind and annul an acceleration and its consequences (other than
nonpayment of principal of or premium or interest on or any Additional Amounts
with respect to the Securities) if all existing Events of Default with respect
to Securities of that series (or of all series, as the case may be) have been
cured or waived, except nonpayment of principal, premium, interest or any
Additional Amounts that has become due solely because of the acceleration.
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 of, or premium, if any, or
interest on the Securities or to enforce the performance of any provision of the
Securities or this Indenture.
The Trustee may maintain a proceeding even if it does not possess any of
the Securities or does not produce any of them in the proceeding. A delay or
omission by the Trustee or any Holder in exercising any right or remedy accruing
upon an Event of Default shall not impair the right or remedy or constitute a
waiver of or acquiescence in the Event of Default. All remedies are cumulative
to the extent permitted by law.
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SECTION 6.04 WAIVER OF EXISTING OR PAST DEFAULTS.
Subject to Sections 6.07 and 9.02, the Holders of a majority in aggregate
principal amount of the then outstanding Securities of any series or of all
series (acting as one class) by notice to the Trustee may waive an existing or
past Default or Event of Default with respect to such series or all series, as
the case may be, and its consequences (including waivers obtained in connection
with a tender offer or exchange offer for Securities of such series or all
series or a solicitation of consents in respect of Securities of such series or
all series, provided that in each case such offer or solicitation is made to all
Holders of then outstanding Securities of such series or all series (but the
terms of such offer or solicitation may vary from series to series)), except (1)
a continuing Default or Event of Default in the payment of the principal of, or
premium, if any, or interest on or any Additional Amounts with respect to any
Security 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.
With respect to Securities of any series, the Holders of a majority in
principal amount of the then outstanding Securities of such series may direct in
writing the time, method and place of conducting any proceeding for any remedy
available to the Trustee or exercising any trust or power conferred on it
relating to or arising under an Event of Default described in clause (1), (2),
(3) or (7) of Section 6.01, and with respect to all Securities, the Holders of a
majority in principal amount of all the then outstanding Securities affected may
direct in writing the time, method and place of conducting any proceeding for
any remedy available to the Trustee or exercising any trust or power conferred
on it not relating to or arising under such an Event of Default. However, the
Trustee may refuse to follow any direction that conflicts with applicable law or
this Indenture, that the Trustee determines may be unduly prejudicial to the
rights of other Holders, or that may involve the Trustee in personal liability;
provided, however, that the Trustee may take any other action deemed proper by
the Trustee that is not inconsistent with such direction. Prior to taking any
action hereunder, the Trustee shall be entitled to indemnification satisfactory
to it in its sole discretion from Holders directing the Trustee against all
losses and expenses caused by taking or not taking such action.
SECTION 6.06 LIMITATIONS ON SUITS.
Subject to Section 6.07 hereof, a Holder of a Security of any series may
pursue a remedy with respect to this Indenture or the Securities of such series
only if:
(1) the Holder gives to the Trustee written notice of a continuing
Event of Default with respect to such series;
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(2) the Holders of at least 25% in principal amount of the then
outstanding Securities of such series make a written request to the Trustee
to pursue the remedy;
(3) such Holder or Holders offer to the Trustee indemnity reasonably
satisfactory to the Trustee against any loss, liability or expense;
(4) the Trustee does not comply with the request within 60 days after
receipt of the request and the offer of indemnity; and
(5) during such 60-day period the Holders of a majority in principal
amount of the Securities of that series 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 TO RECEIVE PAYMENT.
Notwithstanding any other provision of this Indenture, the right of any
Holder of a Security to receive payment of principal of and premium, if any, and
interest on and any Additional Amounts with respect to the Security, on or after
the respective due dates expressed in the Security, or to bring suit for the
enforcement of any such payment on or after such respective dates, is absolute
and unconditional and shall not be impaired or affected without the consent of
the Holder.
SECTION 6.08 COLLECTION SUIT BY TRUSTEE.
If an Event of Default specified in clause (1) or (2) of Section 6.01
hereof occurs and is continuing, the Trustee is authorized to recover judgment
in its own name and as trustee of an express trust against the Issuers for the
amount of principal, premium (if any), interest and any Additional Amounts
remaining unpaid on the Securities of the series affected by the Event of
Default, and interest on overdue principal and premium, if any, and, to the
extent lawful, interest on overdue interest, and such further amount as shall be
sufficient to cover the costs and expenses of collection, including the
reasonable compensation, expenses, disbursements and advances of the Trustee,
its agents and counsel.
SECTION 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 to
have the claims of the Trustee (including any claim for the reasonable
compensation, expenses, disbursements and advances of the Trustee, its agents
and counsel) and the Holders allowed in any judicial proceedings relative to the
Issuers or
36
its creditors or properties 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 Bankruptcy 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. 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 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 which the Holders of the Securities 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 Securities or the rights of any Holder thereof, or to
authorize the Trustee to vote in respect of the claim of any Holder in any such
proceeding.
SECTION 6.10 PRIORITIES.
If the Trustee collects any money pursuant to this Article VI, it shall pay
out the money in the following order:
First: to the Trustee for amounts due under Section 7.07;
Second: to Holders for amounts due and unpaid on the Securities in
respect of which or for the benefit of which such money has been collected,
for principal, premium (if any), interest and any Additional Amounts
ratably, without preference or priority of any kind, according to the
amounts due and payable on such Securities for principal, premium (if any),
interest and any Additional Amounts, respectively; and
Third: to the Issuers.
The Trustee, upon prior written notice to the Issuers, may fix record dates
and payment dates for any payment to Holders pursuant to this Article VI.
To the fullest extent allowed under applicable law, if for the purpose of
obtaining a judgment against the Issuers in any court it is necessary to convert
the sum due in respect of the principal of, premium (if any) or interest on or
Additional Amounts with respect to the Securities of any series (the "Required
Currency") into a currency in which a judgment will be rendered (the "Judgment
Currency"), the rate of exchange used shall be the rate at which in accordance
with normal banking procedures the Trustee could purchase in The City of New
York the Required Currency with the Judgment Currency on the New York Business
Day next preceding
37
that on which final judgment is given. Neither the Issuers nor the Trustee shall
be liable for any shortfall nor shall it benefit from any windfall in payments
to Holders of Securities under this Section 6.10 caused by a change in exchange
rates between the time the amount of a judgment against it is calculated as
above and the time the Trustee converts the Judgment Currency into the Required
Currency to make payments under this Section to Holders of Securities, but
payment of such judgment shall discharge all amounts owed by the Issuers on the
claim or claims underlying such judgment.
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 filing by any party litigant
in the suit of an undertaking to pay the costs of the suit, and the court in its
discretion may assess reasonable costs, including reasonable attorneys' fees,
against any party litigant in the suit, having due regard to the merits and good
faith of the claims or defenses made by the party litigant. This Section 6.11
does not apply to a suit by the Trustee, a suit by a Holder pursuant to Section
6.07, or a suit by a Holder or Holders of more than 10% in principal amount of
the then outstanding Securities of any series.
ARTICLE VII
TRUSTEE
SECTION 7.01 DUTIES OF TRUSTEE.
(a) If an Event of Default has occurred and is continuing, the
Trustee shall exercise such of the rights and powers vested in it by this
Indenture, and use the same degree of care and skill in such exercise, as a
prudent man would exercise or use under the circumstances in the conduct of his
own affairs.
(b) Except during the continuance of an Event of Default with respect
to the Securities of any series:
(1) 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 shall examine such certificates and opinions to determine
whether, on their face, they appear to conform to the requirements of this
Indenture.
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(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 Section 7.01(b);
(2) the Trustee shall not be liable for any error of judgment made in
good faith by a Trust Officer, unless it is proved that the Trustee was
negligent in ascertaining the pertinent facts; and
(3) the Trustee shall not be liable with respect to any action it
takes or omits to take in good faith in accordance with a direction
received by it pursuant to Section 6.05.
(d) Whether or not therein expressly so provided, every provision of
this Indenture that in any way relates to the Trustee is subject to the
provisions of this Section 7.01.
(e) No provision of this Indenture shall require the Trustee to
expend or risk its own funds or incur any liability. The Trustee may refuse to
perform any duty or exercise any right or power unless it receives indemnity
reasonably satisfactory to it against any loss, liability or expense.
(f) The Trustee shall not be liable for interest on any money
received by it except as the Trustee may agree in writing with the Issuers.
Money held in trust by the Trustee need not be segregated from other funds
except to the extent required by law. All money received by the Trustee shall,
until applied as herein provided, be held in trust for the payment of the
principal of, premium (if any) and interest on and Additional Amounts with
respect to the Securities.
SECTION 7.02 RIGHTS OF TRUSTEE.
(a) The Trustee may conclusively rely on any document believed by it
to be genuine and to have been signed or presented by the proper Person. The
Trustee need not investigate any fact or matter stated in the document.
(b) Before the Trustee acts or refrains from acting, it may require
instruction, an Officers' Certificate or an Opinion of Counsel or both to be
provided. The Trustee shall not be liable for any action it takes or omits to
take in good faith in reliance on such instruction, Officers' Certificate or
Opinion of Counsel. The Trustee may consult at the Issuers' expense with
counsel and the written advice of such counsel or any Opinion of Counsel shall
be full and complete authorization and protection 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 agents and shall not be responsible
for the misconduct or negligence of any agent appointed with due care.
39
(d) The Trustee shall not be liable for any action it takes or omits
to take in good faith which it believes to be authorized or within its 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 Issuers shall be sufficient if
signed by an Officer of the Issuers.
(f) the Trustee may consult with counsel of its selection and the
advice of such counsel or any Opinion of Counsel shall be full and complete
authorization and protection in respect of any action taken, suffered or omitted
by it hereunder in good faith and in reliance thereon;
(g) subject to the Trustee's duty to act during a Default with the
required standard of care, the Trustee shall 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 pursuant to this Indenture, unless such Holders
shall have offered to the Trustee security or indemnity satisfactory to the
Trustee against the costs, expenses and liabilities which might be incurred by
it in compliance with such request or direction;
(h) the Trustee shall not be bound to make any investigation into the
facts or matters stated in any resolution, certificate, statement, instrument,
opinion, report, notice, request, direction, consent, order, bond, debenture,
note, other evidence of indebtedness or other paper or document, but the
Trustee, in its discretion, may make such further inquiry or investigation into
such facts or matters as it may see fit, and, if the Trustee shall determine to
make such further inquiry or investigation, it shall be entitled to examine the
books, records and premises of the Issuers, personally or by agent or attorney
at the sole cost of the Issuers and shall incur no liability or additional
liability of any kind by reason of such inquiry or investigation;
(i) the Trustee shall not be liable for any action taken, suffered,
or omitted to be taken by it in good faith and reasonably believed by it to be
authorized or within the discretion or rights or powers conferred upon it by
this Indenture; and
(j) the rights, privileges, protections, immunities and benefits
given to the Trustee, including, without limitation, its right to be
indemnified, are extended to, and shall be enforceable by, the Trustee in each
of its capacities hereunder, and to each agent, custodian and other Person
employed to act hereunder.
SECTION 7.03 MAY HOLD SECURITIES.
The Trustee in its individual or any other capacity may become the owner or
pledgee of Securities and may otherwise deal with the Issuers or any of its
Affiliates with the same rights it
40
would have if it were not Trustee. Any Agent may do the same with like rights
and duties. However, the Trustee is subject to Sections 7.10 and 7.11.
SECTION 7.04 TRUSTEES DISCLAIMER.
The Trustee makes no representation as to the validity or adequacy of this
Indenture or the Securities, it shall not be accountable for the Issuers' use of
the proceeds from the Securities or any money paid to the Issuers or upon the
Issuers' direction under any provision hereof, it shall not be responsible for
the use or application of any money received by any Paying Agent other than the
Trustee and it shall not be responsible for any statement or recital herein or
any statement in the Securities other than its certificate of authentication.
SECTION 7.05 NOTICE OF DEFAULTS.
If a Default or Event of Default with respect to the Securities of any
series occurs and is continuing and it is known to the Trustee, the Trustee
shall mail to Holders of Securities of such series 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, premium (if any) and
interest on and Additional Amounts or any sinking fund installment with respect
to the Securities of such series, the Trustee may withhold the notice if and so
long as a committee of its Trust Officers in good faith determines that
withholding the notice is in the interests of Holders of Securities of such
series.
SECTION 7.06 REPORTS BY TRUSTEE TO HOLDERS.
Within 60 days after each May 15 of each year after the execution of this
Indenture, the Trustee shall mail to Holders of a series and the Issuers a brief
report dated as of such reporting date that complies with TIA (S) 313(a);
provided, however, that if no event described in TIA (S) 313(a) has occurred
within the twelve months preceding the reporting date with respect to a series,
no report need be transmitted to Holders of such series. The Trustee also shall
comply with TIA (S) 313(b). The Trustee shall also transmit by mail all reports
if and as required by TIA (S)(S) 313(c) and 313(d).
A copy of each report at the time of its mailing to Holders of a series of
Securities shall be filed by the Issuers with the SEC and each securities
exchange, if any, on which the Securities of such series are listed. The
Issuers shall notify the Trustee if and when any series of Securities is listed
on any stock exchange and of any delisting thereof.
SECTION 7.07 COMPENSATION AND INDEMNITY.
The Issuers agree to pay to the Trustee from time to time such compensation
for its acceptance of this Indenture and services hereunder as the Issuers and
the Trustee shall from time to time agree in writing. The Trustee's
compensation shall not be limited by any law on
41
compensation of a trustee of an express trust. The Issuers agree to reimburse
the Trustee upon request for all reasonable disbursements, advances and expenses
incurred by it. Such expenses shall include the reasonable compensation,
disbursements and expenses of the Trustee's agents and counsel.
The Issuers hereby indemnify the Trustee against any loss, liability or
expense incurred by it arising out of or in connection with the acceptance or
administration of its duties under this Indenture, except as set forth in the
next paragraph. The Trustee shall notify the Issuers promptly of any claim for
which it may seek indemnity. The Issuers shall defend the claim and the Trustee
shall cooperate in the defense. The Trustee may have separate counsel and the
Issuers shall pay the reasonable fees and expenses of such counsel. The Issuers
need not pay for any settlement made without their consent.
The Issuers shall not be obligated to reimburse any expense or indemnify
against any loss or liability incurred by the Trustee through negligence or bad
faith.
To secure the payment obligations of the Issuers in this Section 7.07, the
Trustee shall have a lien prior to the Securities on all money or property held
or collected by the Trustee, except that held in trust to pay principal of,
premium (if any) and interest on and any Additional Amounts with respect to
Securities of series. Such lien and the indemnity obligation under this Section
7.07 shall survive the satisfaction and discharge of this Indenture.
When the Trustee incurs expenses or renders services after an Event of
Default specified in Section 6.01(5) or (6) occurs, the expenses and the
compensation for the services are intended to constitute expenses of
administration under any Bankruptcy Law.
SECTION 7.08 REPLACEMENT OF TRUSTEE.
A resignation or removal of the Trustee and appointment of a successor
Trustee shall become effective only upon the successor Trustee's acceptance of
appointment as provided in this Section 7.08.
The Trustee may resign and be discharged at any time with respect to the
Securities of one or more series by so notifying the Issuers. The Holders of a
majority in principal amount of the then outstanding Securities of any series
may remove the Trustee with respect to the Securities of such series by so
notifying the Trustee and the Issuers. The Issuers may remove the Trustee if:
(1) the Trustee fails to comply with Section 7.10;
(2) the Trustee is adjudged a bankrupt or an insolvent or an order
for relief is entered with respect to the Trustee under any Bankruptcy Law;
42
(3) a Bankruptcy Custodian or public officer takes charge of the
Trustee or its property; or
(4) the Trustee otherwise becomes incapable of acting.
If the Trustee resigns or is removed or if a vacancy exists in the office
of Trustee for any reason, with respect to the Securities of one or more series,
the Issuers shall promptly appoint a successor Trustee or Trustees with respect
to the Securities of that or those series (it being understood that any such
successor Trustee may be appointed with respect to the Securities of one or more
or all of such series and that at any time there shall be only one Trustee with
respect to the Securities of any particular series). Within one year after the
successor Trustee with respect to the Securities of any series takes office, the
Holders of a majority in principal amount of the Securities of such series may
appoint a successor Trustee to replace the successor Trustee appointed by the
Issuers.
If a successor Trustee with respect to the Securities of any series does
not take office within 60 days after the retiring Trustee resigns or is removed,
the retiring Trustee, the Issuers or the Holders of at least 10% in principal
amount of the then outstanding Securities of such series may petition any court
of competent jurisdiction for the appointment of a successor Trustee with
respect to the Securities of such series.
If the Trustee with respect to the Securities of a series fails to comply
with Section 7.10, any Holder of Securities of such series may petition any
court of competent jurisdiction for the removal of the Trustee and the
appointment of a successor Trustee with respect to the Securities of such
series.
In case of the appointment of a successor Trustee with respect to all
Securities, each such successor Trustee shall deliver a written acceptance of
its appointment to the retiring Trustee and to the Issuers. Thereupon the
resignation or removal of the retiring Trustee shall become effective, and the
successor Trustee shall have all the rights, powers and duties of the retiring
Trustee under this Indenture. The successor Trustee shall mail a notice of its
succession to Holders. The retiring Trustee shall promptly transfer all
property held by it as Trustee to the successor Trustee, subject to the lien
provided for in Section 7.07.
In case of the appointment of a successor Trustee with respect to the
Securities of one or more (but not all) series, the Issuers, the retiring
Trustee and each successor Trustee with respect to the Securities of one or more
(but not all) series shall execute and deliver an indenture supplemental hereto
in which each successor Trustee shall accept such appointment and that (1) shall
confer to each successor Trustee all the rights, powers and duties of the
retiring Trustee with respect to the Securities of that or those series to which
the appointment of such successor Trustee relates, (2) if the retiring Trustee
is not retiring with respect to all Securities, shall confirm that all the
rights, powers and duties of the retiring Trustee with respect to the Securities
of that or those series as to which the retiring Trustee is not retiring shall
continue to be vested in
43
the retiring Trustee and (3) shall add to or change any of the provisions of
this Indenture as shall be necessary to provide for or facilitate the
administration of the trusts hereunder by more than one Trustee. Nothing herein
or in such supplemental indenture shall constitute such Trustees co-trustees of
the same trust, and each such Trustee shall be trustee of a trust or trusts
hereunder separate and apart from any trust or trusts hereunder administered by
any other such Trustee. Upon the execution and delivery of such supplemental
indenture, the resignation or removal of the retiring Trustee shall become
effective to the extent provided therein and each such successor Trustee shall
have all the rights, powers and duties of the retiring Trustee with respect to
the Securities of that or those series to which the appointment of such
successor Trustee relates. On request of the Issuers or any successor Trustee,
such retiring Trustee shall transfer to such successor Trustee all property held
by such retiring Trustee as Trustee with respect to the Securities of that or
those series to which the appointment of such successor Trustee relates.
Notwithstanding replacement of the Trustee or Trustees pursuant to this Section
7.08, the obligations of the Issuers under Section 7.07 shall continue for the
benefit of the retiring Trustee or Trustees.
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 shall be
the successor Trustee; provided, however, that in the case of a transfer of all
or substantially all of its corporate trust business to another corporation, the
transferee corporation expressly assumes all of the Trustee's liabilities
hereunder.
In case any Securities shall have been authenticated, but not delivered, by
the Trustee then in office, any successor by merger, conversion or consolidation
to such authenticating Trustee may adopt such authentication and deliver the
Securities so authenticated; and in case at that time any of the Securities
shall not have been authenticated, any successor to the Trustee may authenticate
such Securities either in the name of any predecessor hereunder or in the name
of the successor to the Trustee; and in all such cases such certificates shall
have the full force which it is anywhere in the Securities or in this Indenture
provided that the certificate of the Trustee shall have.
SECTION 7.10 ELIGIBILITY; DISQUALIFICATION.
There shall at all times be a Trustee hereunder which shall be a
corporation organized and doing business under the laws of the United States,
any State thereof or the District of Columbia and authorized under such laws to
exercise corporate trust power, shall be subject to supervision or examination
by Federal or State (or the District of Columbia) authority and shall have, or
be a Subsidiary of a bank or bank holding company having, a combined capital and
surplus of at least $50 million as set forth in its most recent published annual
report of condition.
44
The Indenture shall always have a Trustee who satisfies the requirements of
TIA (S)(S) 310(a)(1), 310(a)(2) and 310(a)(5). The Trustee is subject to and
shall comply with the provisions of TIA (S) 310(b) during the period of time
required by this Indenture. Nothing in this Indenture shall prevent the Trustee
from filing with the SEC the application referred to in the penultimate
paragraph of TIA (S) 310(b).
SECTION 7.11 PREFERENTIAL COLLECTION OF CLAIMS AGAINST ISSUERS.
The Trustee is subject to and shall comply with the provisions of TIA (S)
311(a), excluding any creditor relationship listed in TIA (S) 311(b). A Trustee
who has resigned or been removed shall be subject to TIA (S) 311(a) to the
extent indicated therein.
ARTICLE VII
DISCHARGE OF INDENTURE
SECTION 8.01 TERMINATION OF ISSUERS OBLIGATIONS.
This Indenture shall cease to be of further effect with respect to the
Securities of a series (except that the Issuers' obligations under Section 7.07,
the Trustee's and Paying Agent's obligations under Section 8.03 and the rights,
powers, protections and privileges accorded the Trustee under Article VII shall
survive), and the Trustee, on demand of the Issuers, shall execute proper
instruments acknowledging the satisfaction and discharge of this Indenture with
respect to the Securities of such series, when:
(1) either
(A) all outstanding Securities of such series theretofore
authenticated and issued (other than destroyed, lost or stolen
Securities that have been replaced or paid) have been delivered to the
Trustee for cancellation; or
(B) all outstanding Securities of such series not theretofore
delivered to the Trustee for cancellation:
(i) have become due and payable,
(ii) will become due and payable at their Stated Maturity
within one year,
(iii) are to be called for redemption within one year under
arrangements satisfactory to the Trustee for the giving of notice
of redemption by the Trustee in the name, and at the expense, of
the Issuers,
45
and, in the case of clause (i), (ii) or (iii) above, the Issuers have
irrevocably deposited or caused to be deposited with the Trustee as
funds (immediately available to the Holders in the case of clause (i))
in trust for such purpose (x) cash in an amount, or (y) U.S.
Government Obligations, maturing as to principal and interest at such
times and in such amounts as will insure the availability of cash in
an amount or (z) a combination thereof, which will be sufficient, in
the opinion of a nationally recognized firm of independent public
accountants expressed in a written certification thereof delivered to
the Trustee, to pay and discharge the entire indebtedness on the
Securities of such series for principal and interest to the date of
such deposit (in the case of Securities which have become due and
payable) or for principal, premium, if any, and interest to the Stated
Maturity or Redemption Date, as the case may be; or
(C) the Issuers have properly fulfilled such other means of
satisfaction and discharge as is specified, as contemplated by Section
2.01, to be applicable to the Securities of such series;
(2) the Issuers have paid or caused to be paid all other sums payable
by them hereunder with respect to the Securities of such series; and
(3) the Issuers have delivered to the Trustee an Officers'
Certificate stating that all conditions precedent to satisfaction and
discharge of this Indenture with respect to the Securities of such series
have been complied with, together with an Opinion of Counsel to the same
effect.
(b) Unless this Section 8.01(b) is specified as not being applicable
to Securities of a series as contemplated by Section 2.01, the Issuers may
terminate certain of their obligations under this Indenture, and failure to
comply with such covenants will not constitute a Default or an Event of Default
("covenant defeasance") with respect to the Securities of a series if:
(1) the Issuers have irrevocably deposited or caused to be
irrevocably deposited with the Trustee as trust funds in trust for the
purpose of making the following payments, specifically pledged as security
for and dedicated solely to the benefit of the Holders of Securities of
such series, (i) money in the currency in which payment of the Securities
of such series is to be made in an amount, or (ii) Government Obligations
with respect to such series, maturing as to principal and interest at such
times and in such amounts as will insure the availability of money in the
currency in which payment of the Securities of such series is to be made in
an amount or (iii) a combination thereof, that is sufficient, in the
opinion (in the case of (ii) and (iii)) of a nationally recognized firm of
independent public accountants expressed in a written certification thereof
delivered to the Trustee, to pay, without consideration of the reinvestment
of any such amounts and after payment of all taxes or other charges or
assessments in respect thereof payable by
46
the Trustee, the principal of and premium (if any) and interest on all
Securities of such series on each date that such principal, premium (if
any) or interest is due and payable and (at the Stated Maturity thereof or
upon redemption as provided in Section 8.01(e)) to pay all other sums
payable by it hereunder; provided that the Trustee shall have been
irrevocably instructed to apply such money and/or the proceeds of such U.S.
Government Obligations to the payment of said principal, premium (if any)
and interest with respect to the Securities of such series as the same
shall become due;
(2) the Issuers have delivered to the Trustee an Officers'
Certificate stating that all conditions precedent to satisfaction and
discharge of this Indenture with respect to the Securities of such series
have been complied with and an Opinion of Counsel to the same effect;
(3) no Default or Event of Default with respect to the Securities of
such series shall have occurred and be continuing on the date of such
deposit;
(4) the Issuers shall have delivered to the Trustee an Opinion of
Counsel from a nationally recognized counsel acceptable to the Trustee or a
tax ruling to the effect that the Holders will not recognize income, gain
or loss for Federal income tax purposes as a result of the Issuers'
exercise of their option under this Section 8.01(b) and will be subject to
Federal income tax on the same amount and in the same manner and at the
same times as would have been the case if such option had not been
exercised;
(5) the Issuers have complied with any additional conditions
specified pursuant to Section 2.01 to be applicable to the discharge of
Securities of such series pursuant to this Section 8.01; and
(6) such deposit and discharge shall not cause the Trustee to have a
conflicting interest as defined in TIA (S) 310(b).
In such event, this Indenture shall cease to be of further effect (except
as set forth in this paragraph), and the Trustee, on demand of the Issuers,
shall execute proper instruments acknowledging satisfaction and discharge under
this Indenture. However, the Issuers' obligations in Sections 2.05, 2.06, 2.07,
2.08, 2.09, 4.01, 4.02, 5.01, 7.07, 7.08 and 8.04, the Trustee's and Paying
Agent's obligations in Section 8.03 and the rights, powers, protections and
privileges accorded the Trustee under Article VII shall survive until all
Securities of such series are no longer outstanding. Thereafter, only the
Issuers' obligations in Section 7.07 and the Trustee's and Paying Agent's
obligations in Section 8.03 shall survive with respect to Securities of such
series.
After such irrevocable deposit made pursuant to this Section 8.01(b) and
satisfaction of the other conditions set forth herein, the Trustee upon request
shall acknowledge in writing the
47
discharge of the Issuers' obligations under this Indenture with respect to the
Securities of such series except for those surviving obligations specified
above.
In order to have money available on a payment date to pay principal of or
premium (if any) or interest on the Securities, the Government Obligations shall
be payable as to principal or interest on or before such payment date in such
amounts as will provide the necessary money. Government Obligations shall not be
callable at the issuer's option.
(c) If the Issuers have previously complied or are concurrently
complying with Section 8.01(b) (other than any additional conditions specified
pursuant to Section 2.01 that are expressly applicable only to covenant
defeasance) with respect to Securities of a series, then, unless this Section
8.01(c) is specified as not being applicable to Securities of such series as
contemplated by Section 2.01, the Issuers may elect to be discharged ("legal
defeasance") from their obligations to make payments with respect to Securities
of such series, if:
(1) no Default or Event of Default under clauses (6) and (7) of
Section 6.01 hereof shall have occurred at any time during the period
ending on the 91st day after the date of deposit contemplated by Section
8.01(b) (it being understood that this condition shall not be deemed
satisfied until the expiration of such period);
(2) unless otherwise specified with respect to Securities of such
series as contemplated by Section 2.01, the Issuers have delivered to the
Trustee an Opinion of Counsel from a nationally recognized counsel
acceptable to the Trustee to the effect referred to in Section 8.01(b)(4)
with respect to such legal defeasance, which opinion is based on (i) a
private ruling of the Internal Revenue Service addressed to the Issuers,
(ii) a published ruling of the Internal Revenue Service or (iii) a change
in the applicable federal income tax law (including regulations) after the
date of this Indenture;
(3) the Issuers have complied with any other conditions specified
pursuant to Section 2.01 to be applicable to the legal defeasance of
Securities of such series pursuant to this Section 8.01(c); and
(4) the Issuers have delivered to the Trustee an Issuers Request
requesting such legal defeasance of the Securities of such series and an
Officers' Certificate stating that all conditions precedent to with respect
to such legal defeasance of the Securities of such series have been
complied with, together with an Opinion of Counsel to the same effect.
In such event, the Issuers will be discharged from their obligations under
this Indenture and the Securities of such series to pay principal of, premium
(if any) and interest on, and Additional Amounts with respect to, Securities of
such series, the Issuers' obligations under Sections 4.01 and 5.01 shall
terminate with respect to such Securities, and the entire indebtedness of the
Issuers evidenced by such Securities shall be deemed paid and discharged.
However,
48
Sections 2.08, 2.09, 4.02, 7.07, 7.08, 8.02 and 8.04, the Trustee's and Paying
Agent's obligations in Section 8.03 and the rights, powers, protections and
privileges accorded the Trustee under Article VII shall survive until all
Securities of such series are no longer outstanding.
(d) If and to the extent additional or alternative means of
satisfaction, discharge or defeasance of Securities of a series are specified to
be applicable to such series as contemplated by Section 2.01, the Issuers may
terminate any or all of their obligations under this Indenture with respect to
Securities of a series and any or all of their obligations under the Securities
of such series if they fulfill such other means of satisfaction and discharge as
may be so specified, as contemplated by Section 2.01, to be applicable to the
Securities of such series.
(e) If Securities of any series subject to subsections (a), (b), (c)
or (d) of this Section 8.01 are to be redeemed prior to their Stated Maturity,
whether pursuant to any optional redemption provisions or in accordance with any
mandatory or optional sinking fund provisions, the terms of the applicable trust
arrangement shall provide for such redemption, and the Issuers shall make such
arrangements as are reasonably satisfactory to the Trustee for the giving of
notice of redemption by the Trustee in the name, and at the expense, of the
Issuers.
SECTION 8.02 APPLICATION OF TRUST MONEY.
The Trustee or a trustee satisfactory to the Trustee and the Issuers shall
hold in trust money or U.S. Government Obligations deposited with it pursuant to
Section 8.01 hereof. It shall apply the deposited money and the money from U.S.
Government Obligations through the Paying Agent and in accordance with this
Indenture to the payment of principal of, premium (if any) and interest on and
any Additional Amounts with respect to the Securities of the series with respect
to which the deposit was made.
The Issuers shall pay and indemnify the Trustee against any tax, fee or
other charge imposed on or assessed against the U.S. Government Obligations
deposited pursuant to Section 8.01 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 Outstanding Securities.
SECTION 8.03 REPAYMENT TO ISSUERS.
The Trustee and the Paying Agent shall promptly pay to the Issuers upon
written request any excess money or U.S. Government Obligations (or proceeds
therefrom) held by them at any time upon the written request of the Issuers.
Subject to the requirements of any applicable abandoned property laws, the
Trustee and the Paying Agent shall pay to the Issuers upon written request any
money held by them for the payment of principal, premium (if any), interest or
any Additional Amounts that remains unclaimed for two years after the date upon
which such payment shall have become due. After payment to the Issuers, Holders
entitled to the money must look to the Issuers for payment as
49
general creditors unless an applicable abandoned property law designates another
Person, and all liability of the Trustee and the Paying Agent with respect to
such money shall cease.
SECTION 8.04 REINSTATEMENT.
If the Trustee or the Paying Agent is unable to apply any money or U.S.
Government Obligations deposited with respect to Securities of any series in
accordance with Section 8.01 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 obligations of the
Issuers under this Indenture with respect to the Securities of such series and
under the Securities of such series shall be revived and reinstated as though no
deposit had occurred pursuant to Section 8.01 hereof until such time as the
Trustee or the Paying Agent is permitted to apply all such money or U.S.
Government Obligations in accordance with Section 8.01; provided, however, that
if the Issuers have made any payment of principal of, premium (if any) or
interest on or any Additional Amounts with respect to any Securities because of
the reinstatement of its obligations, the Issuers shall be subrogated to the
rights of the Holders of such Securities to receive such payment from the money
or U.S. Government Obligations held by the Trustee or the Paying Agent.
ARTICLE IX
SUPPLEMENTAL INDENTURES AND AMENDMENTS
SECTION 9.01 WITHOUT CONSENT OF HOLDERS.
The Issuers and the Trustee may amend or supplement this Indenture or the
Securities or waive any provision hereof or thereof without the consent of any
Holder:
(1) to cure any ambiguity, omission, defect or inconsistency provided
such action does not adversely affect in any material respect the interests
of the holders of Securities of any series hereunder;
(2) to comply with Section 5.01;
(3) to provide for uncertificated Securities in addition to or in
place of certificated Securities, or to provide for the issuance of bearer
Securities (with or without coupons);
(4) to provide any security for any series of Securities or to add
guarantees of any series of Securities;
(5) to comply with any requirement in order to effect or maintain the
qualification of this Indenture under the TIA;
50
(6) to add to the covenants of the Issuers for the benefit of the
Holders of all or any series of Securities (and if such covenants are to be
for the benefit of less than all series of Securities, stating that such
covenants are expressly being included solely for the benefit of such
series), or to surrender any right or power herein conferred upon the
Issuers;
(7) to add any additional Events of Default with respect to all or
any series of the Securities (and, if such Event of Default is applicable
to less than all series of Securities, specifying the series to which such
Event of Default is applicable);
(8) to change or eliminate any of the provisions of this Indenture;
provided that any such change or elimination shall become effective only
when there is no outstanding Security of any series created prior to the
execution of such amendment or supplemental indenture that is adversely
affected in any material respect by such change in or elimination of such
provision;
(9) to establish the form or terms of Securities of any series as
permitted by Section 2.01;
(10) to supplement any of the provisions of this Indenture to such
extent as shall be necessary to permit or facilitate the defeasance and
discharge of any series of Securities pursuant to Section 8.01; provided,
however, that any such action shall not adversely affect the interest of
the Holders of Securities of such series or any other series of Securities
in any material respect;
(11) to evidence and provide for the acceptance of appointment
hereunder by a successor Trustee with respect to the Securities of one or
more series and to add to or change any of the provisions of this Indenture
as shall be necessary to provide for or facilitate the administration of
the trusts hereunder by more than one Trustee, pursuant to the requirements
of Section 7.08;
(12) to provide for the issuance of Exchange Securities pursuant to
the Registration Rights Agreement; or
(13) to make any other change that does not adversely affect the
rights of any Holder.
Upon the request of the Issuers, accompanied by a Resolution, and upon
receipt by the Trustee of the documents described in Section 9.06, the Trustee
shall join with the Issuers in the execution of any supplemental indenture
authorized or permitted by the terms of this Indenture and make any further
appropriate agreements and stipulations that may be therein contained.
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SECTION 9.02 WITH CONSENT OF HOLDERS.
Except as provided below in this Section 9.02, the Issuers and the Trustee
may amend or supplement this Indenture to add any provisions to or change or
eliminate any provisions of the Indenture or modify the rights of such Holders,
with the written consent (including consents obtained in connection with a
tender offer or exchange offer for Securities of any one or more series or all
series or a solicitation of consents in respect of Securities of any one or more
series or all series, provided that in each case such offer or solicitation is
made to all Holders of then outstanding Securities of each such series (but the
terms of such offer or solicitation may vary from series to series)) of the
Holders of at least a majority in aggregate principal amount of the then
outstanding Securities of all series affected by such amendment or supplement
(acting as one class).
Upon the request of the Issuers, accompanied by a Resolution, and upon the
filing with the Trustee of evidence of the consent of the Holders as aforesaid,
and upon receipt by the Trustee of the documents described in Section 9.06, the
Trustee shall join with the Issuers in the execution of such amendment or
supplemental indenture.
It shall not be necessary for the consent of the Holders 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.
The Holders of a majority in principal amount of the then outstanding
Securities of one or more series or of all series may waive compliance in a
particular instance by the Issuers with any provision of this Indenture with
respect to Securities of such series (including waivers obtained in connection
with a tender offer or exchange offer for Securities of such series or a
solicitation of consents in respect of Securities of such series, provided that
in each case such offer or solicitation is made to all Holders of then
outstanding Securities of such series (but the terms of such offer or
solicitation may vary from series to series)).
However, without the consent of each Holder affected, an amendment,
supplement or waiver under this Section 9.02 may not:
(1) change the Stated Maturity of the principal of (or premium, if
any, on) or any installment of interest on any Security, or reduce the
principal amount thereof (or any premium, if any, thereon) or the rate of
interest, if any, thereon, or adversely affect the right of repayment, if
any, at the option of the Holder, or change any Place of Payment where any
Security or any premium or interest thereon is payable, or impair the right
to institute suit for the enforcement of any such payment on or after the
Stated Maturity thereof (or on or after any Redemption Date or Repayment
Date);
(2) reduce the percentage in aggregate principal amount of
Securities, the consent of the Holders of which is necessary to execute any
supplemental indenture; or
52
(3) reduce the percentage in principal amount of outstanding
Securities, the consent of the Holders of which is necessary to modify or
waive any Default hereunder.
A supplemental indenture that changes or eliminates any covenant or other
provision of this Indenture which has expressly been included solely for the
benefit of one or more particular series of Securities, or which modifies the
rights of the Holders of Securities of such series with respect to such covenant
or other provision, shall be deemed not to affect the rights under this
Indenture of the Holders of Securities of any other series.
The right of any Holder to participate in any consent required or sought
pursuant to any provision of this Indenture (and the obligation of the Issuers
to obtain any such consent otherwise required from such Holder) may be subject
to the requirement that such Holder shall have been the Holder of record of any
Securities with respect to which such consent is required or sought as of a date
identified by the Issuers in a notice furnished to Holders in accordance with
the terms of this Indenture.
After an amendment, supplement or waiver under this Section 9.02 becomes
effective, the Issuers shall mail to the Holders of each Security affected
thereby a notice briefly describing the amendment, supplement or waiver. Any
failure of the Issuers to mail such notice, or any defect therein, shall not,
however, in any way impair or affect the validity of any such amendment,
supplement or waiver.
SECTION 9.03 COMPLIANCE WITH TRUST INDENTURE ACT.
Every amendment or supplement to this Indenture or the Securities shall
comply in form and substance 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 is a continuing consent by the Holder and every subsequent Holder of
a Security or portion of a Security that evidences the same debt as the
consenting Holder's Security, even if notation of the consent is not made on any
Security. However, any such Holder or subsequent Holder may revoke the consent
as to his or her Security or portion of a Security if the Trustee receives
written notice of revocation before 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 Issuers may, but shall not be obligated to, fix a record date (which
need not comply with Section 316(c) of the TIA) 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
53
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 Securities required hereunder for such
amendment 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 Security.
SECTION 9.05 NOTATION ON OR EXCHANGE OF SECURITIES.
If an amendment or supplement changes the terms of an outstanding Security,
the Issuers may require the Holder of the Security to deliver it to the Trustee.
The Trustee may place an appropriate notation on the Security at the request of
the Issuers regarding the changed terms and return it to the Holder.
Alternatively, if the Issuers so determine, the Issuers in exchange for the
Security shall issue and the Trustee shall authenticate a new Security that
reflects the changed terms. Failure to make the appropriate notation or to
issue a new Security shall not affect the validity of such amendment or
supplement.
Securities of any series authenticated and delivered after the execution of
any amendment or supplement may, and shall if required by the Trustee, bear a
notation in form approved by the Trustee as to any matter provided for in such
amendment or supplement.
SECTION 9.06 TRUSTEE TO SIGN AMENDMENTS, ETC.
The Trustee shall sign any amendment or supplement authorized pursuant to
this Article 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 signing or refusing to sign such
amendment or supplement, the Trustee shall be entitled to receive, and, subject
to Section 7.01 hereof, shall be fully protected in relying upon, an Opinion of
Counsel provided at the expense of the Issuers as conclusive evidence that such
amendment or supplement is authorized or permitted by this Indenture, that it is
not inconsistent herewith, and that it will be valid and binding upon the
Issuers in accordance with its terms.
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ARTICLE X
MISCELLANEOUS
SECTION 10.01 TRUST INDENTURE ACT CONTROLS.
If any provision of this Indenture limits, qualifies or conflicts with the
duties imposed by operation of TIA (S) 318(c), the imposed duties shall control.
SECTION 10.02 NOTICES.
Any notice or communication by the Issuers or the Trustee to the other is
duly given if in writing and delivered in person or mailed by first-class mail
(registered or certified, return receipt requested), telex, facsimile or
overnight air courier guaranteeing next day delivery, to the other's address:
If to the Issuers:
Equistar Chemicals, LP
Equistar Funding Corporation
One Houston Center, Suite 1600
1221 McKinney Street
Houston, Texas 77010
Attention: Gerald A. O'Brien
If to the Trustee:
The Bank of New York
101 Barclay Street, 21W
New York, New York 10286
Attention: Corporate Trust Administration
The Issuers or the Trustee by notice to the other may designate additional
or different addresses for subsequent notices or communications.
All notices and communications shall be deemed to have been duly given: at
the time delivered by hand, if personally delivered; five Business Days after
being deposited in the mail, postage prepaid, if mailed; when answered back, if
telexed; when receipt acknowledged, if by facsimile; and the next Business Day
after timely delivery to the courier, if sent by overnight air courier
guaranteeing next day delivery.
Any notice or communication to a Holder shall be mailed by first-class
mail, postage prepaid, to the Holder's address shown on the register kept by the
Registrar. Failure to mail a notice or communication to a Holder or any defect
in it shall not affect its sufficiency with respect to other Holders.
55
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,
except in the case of notice to the Trustee, it is duly given only when
received.
If the Issuers mail a notice or communication to Holders, they shall mail a
copy to the Trustee and each Agent at the same time.
All notices or communications, including without limitation notices to the
Trustee or the Issuers 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 10.03 COMMUNICATION BY HOLDERS WITH OTHER HOLDERS.
Holders may communicate pursuant to TIA (S) 312(b) with other Holders with
respect to their rights under this Indenture or the Securities. The Issuers,
the Trustee, the Registrar and anyone else shall have the protection of TIA (S)
312(c).
SECTION 10.04 CERTIFICATE AND OPINION AS TO CONDITIONS PRECEDENT.
Upon any request or application by the Issuers to the Trustee to take any
action under this Indenture, the Issuers shall, if requested by the Trustee,
furnish to the Trustee at the expense of the Issuers:
(1) an Officers' Certificate (which shall include the statements set
forth in Section 10.05) 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 (which shall include the statements set
forth in Section 10.05 hereof) stating that, in the opinion of such
counsel, all such conditions precedent and covenants have been complied
with.
SECTION 10.05 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 (S) 314(a)(4)) shall comply with the provisions of TIA (S)
314(e) and shall include:
56
(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 10.06 RULES BY TRUSTEE AND AGENTS.
The Trustee may make reasonable rules for action by or at a meeting of
Holders. The Registrar or the Paying Agent may make reasonable rules and set
reasonable requirements for its functions.
SECTION 10.07 LEGAL HOLIDAYS.
If a payment date is a Legal Holiday at a Place of Payment, payment may be
made at that place on the next succeeding day that is not a Legal Holiday, and
no interest shall accrue for the intervening period.
SECTION 10.08 NO RECOURSE AGAINST OTHERS.
A director, officer, employee, stockholder, partner or other owner of
either of the Issuers or the Trustee, as such, shall not have any liability for
any obligations of the Issuers under the Securities or for any obligations of
the Issuers or the Trustee under this Indenture or for any claim based on, in
respect of or by reason of such obligations or their creation. Each Holder by
accepting a Security waives and releases all such liability. The waiver and
release shall be part of the consideration for the issue of Securities.
SECTION 10.09 GOVERNING LAW.
THIS INDENTURE AND THE SECURITIES SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, WITHOUT GIVING EFFECT TO
APPLICABLE PRINCIPLES OF CONFLICTS OF LAWS TO THE EXTENT THE LAWS OF ANOTHER
JURISDICTION WOULD BE REQUIRED THEREBY.
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SECTION 10.10 NO ADVERSE INTERPRETATION OF OTHER AGREEMENTS.
This Indenture may not be used to interpret another indenture, loan or debt
agreement of the Issuers or any other Subsidiary. Any such indenture, loan or
debt agreement may not be used to interpret this Indenture.
SECTION 10.11 SUCCESSORS.
All agreements of the Issuers in this Indenture and the Securities shall
bind their successors. All agreements of the Trustee in this Indenture shall
bind its successors.
SECTION 10.12 SEVERABILITY.
In case any provision in this Indenture or in the Securities shall be
invalid, illegal or unenforceable, the validity, legality and enforceability of
the remaining provisions shall, to the fullest extent permitted by applicable
law, not in any way be affected or impaired thereby.
SECTION 10.13 COUNTERPART ORIGINALS.
The parties may sign any number of copies of this Indenture. Each signed
copy shall be an original, but all of them together represent the same
agreement.
SECTION 10.14 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 hereof and shall in no way modify or
restrict any of the terms or provisions hereof.
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IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be
duly executed as of the day and year first above written.
EQUISTAR CHEMICALS, LP
By: /s/ Gerald A. O'Brien
--------------------------------------
Name: Gerald A. O'Brien
Title: Vice President and General Counsel
EQUISTAR FUNDING CORPORATION
By: /s/ Gerald A. O'Brien
--------------------------------------
Name: Gerald A. O'Brien
Title: Vice President and General Counsel
THE BANK OF NEW YORK, AS TRUSTEE
By: /s/ Van K. Brown
--------------------------------------
Name: Van K. Brown
Title: Assistant Vice President
59