[Draft--11/19/96]
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MILLENNIUM AMERICA INC., as Issuer,
MILLENNIUM CHEMICALS INC., as Guarantor
and
THE BANK OF NEW YORK, as Trustee
------------
INDENTURE
Dated as of , 1996
------------
$500,000,000 [ ]% Senior Notes Due November __, 2006
$250,000,000 [ ]% Senior Debentures Due November ___, 2026
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Reconciliation and tie between Trust Indenture Act of 1939,
as amended, and Indenture dated as of [ ], 1996
Trust Indenture Indenture
Act Section Section
SS 310 (a)(1).......................................609
(a)(2).......................................609
(a)(5).......................................609
(b)..........................................608, 610
SS 311 (a)..........................................613
312 (a)..........................................701
(b)..........................................702
(c)..........................................702
SS 313 (a)..........................................703
(c)..........................................703, 704
SS 314 (a)..........................................704
(a)(4).......................................1010
(c)(1).......................................103
(c)(2).......................................103
(e)..........................................103
SS 315 (a)..........................................601(b)
(b)..........................................602
(c)..........................................601(a)
(d)..........................................601(c), 603
(e)..........................................514
SS 316 (a)(last sentence)...........................101 ("Outstanding")
(a)(1)(A)....................................502, 512
(a)(1)(B)....................................513
(b)..........................................508
(c)..........................................105
SS 317 (a)(1).......................................503
(a)(2).......................................504
(b)..........................................1003
SS 318 (a)..........................................108
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Note: This reconciliation and tie shall not, for any purpose, be deemed to be a
part of this Indenture.
TABLE OF CONTENTS
PAGE
PARTIES....................................................1
RECITALS...................................................1
ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
Section 101. Definitions.................................2
"Affiliate".................................2
"Agent Member"..............................2
"Applicable Procedures".....................2
"Bankruptcy Law"............................3
"Board of Directors"........................3
"Board Resolution"..........................3
"Business Day"..............................3
"Capital Stock".............................3
"Cash Equivalents"..........................3
"Commission"................................3
"Company"...................................4
"Company Guarantees"........................4
"Consolidated Net Tangible Assets"..........4
"Consolidation".............................4
"Corporate Trust Office"....................4
"Debt"......................................4
"Default"...................................5
"Depositary"................................5
"DTC".......................................5
"Exchange Act"..............................5
"Funded Debt"...............................5
"GAAP"......................................5
"Global Security"...........................5
"Guaranty"..................................5
"Holder"....................................5
"Incur".....................................6
"Indenture".................................6
"Indenture Obligations".....................6
"Interest Payment Date".....................6
"Issuer"....................................6
"Issuer Request" or "Issuer Order"..........6
(i)
"Lien"......................................6
"Maturity"..................................7
"Moody's"...................................7
"Officers' Certificate".....................7
"Opinion of Counsel"........................7
"Opinion of Independent Counsel"............7
"Other Jurisdiction"........................7
"Outstanding"...............................7
"Paying Agent"..............................8
"Person"....................................8
"Predecessor Security"......................8
"Regular Record Date".......................8
"Responsible Officer".......................9
"Restricted Property".......................9
"Restricted Subsidiary".....................9
"S&P".......................................9
"Securities Act"............................9
"Stated Maturity"...........................9
"Subsidiary"...............................10
"Trustee"...................................9
"Trust Indenture Act".......................9
"U.S. Government Obligations"..............10
"Value"....................................10
Section 102. Other Definitions..........................10
Section 103. Compliance Certificates and Opinions.......11
Section 104. Form of Documents Delivered to Trustee.....12
Section 105. Acts of Holders............................13
Section 106. Notices, etc., to the Trustee, the
Issuer and the Company...................14
Section 107. Notice to Holders; Waiver..................15
Section 108. Conflict with Trust Indenture Act..........15
Section 109. Effect of Headings and Table of
Contents.................................15
Section 110. Successors and Assigns.....................15
Section 111. Separability Clause........................16
Section 112. Benefits of Indenture......................16
Section 113. Governing Law..............................16
Section 114. Legal Holidays.............................16
Section 115. Independence of Covenants..................16
Section 116. Schedules, Exhibits and Annexes............16
Section 117. Counterparts...............................17
Section 118. No Personal Liability of Directors,
Officers, Incorporators, Employees
and Stockholders.........................17
(ii)
ARTICLE TWO
SECURITY FORMS
Section 201. Forms Generally............................17
ARTICLE THREE
THE SECURITIES
Section 301. Title and Terms............................18
Section 302. Denominations..............................21
Section 303. Execution, Authentication, Delivery
and Dating...............................21
Section 304. Temporary Securities.......................23
Section 305. Global Securities..........................23
Section 306. Registration, Registration of
Transfer and Exchange....................25
Section 307. Mutilated, Destroyed, Lost and
Stolen Securities........................26
Section 308. Payment of Interest; Interest
Rights Preserved.........................27
Section 309. CUSIP Numbers..............................28
Section 310. Persons Deemed Owners......................28
Section 311. Cancellation...............................29
Section 312. Computation of Interest....................29
ARTICLE FOUR
SATISFACTION AND DISCHARGE
Section 401. Satisfaction and Discharge of
Indenture................................29
Section 402. Application of Trust Money.................31
ARTICLE FIVE
REMEDIES
Section 501. Events of Default..........................31
Section 502. Acceleration of Maturity;
Rescission and Annulment.................33
Section 503. Collection of Debt and Suits for
Enforcement by Trustee...................34
Section 504. Trustee May File Proofs of Claim...........35
Section 505. Trustee May Enforce Claims without
Possession of Securities.................36
Section 506. Application of Money Collected.............36
Section 507. Limitation on Suits........................37
Section 508. Unconditional Right of Holders to
Receive Principal and Interest...........38
Section 509. Restoration of Rights and Remedies.........38
(iii)
Section 510. Rights and Remedies Cumulative.............38
Section 511. Delay or Omission Not Waiver...............38
Section 512. Control by Holders.........................39
Section 513. Waiver of Past Defaults....................39
Section 514. Undertaking for Costs......................40
Section 515. Waiver of Stay, Extension or Usury
Laws.....................................40
Section 516. Remedies Subject to Applicable Law.........40
ARTICLE SIX
THE TRUSTEE
Section 601. Duties of Trustee..........................40
Section 602. Notice of Defaults.........................42
Section 603. Certain Rights of Trustee..................42
Section 604. Trustee Not Responsible for
Recitals, Dispositions of
Securities or Application of
Proceeds Thereof.........................44
Section 605. Trustee and Agents May Hold
Securities; Collections; etc.............44
Section 606. Money Held in Trust........................44
Section 607. Compensation and Indemnification of
Trustee and Its Prior Claim..............44
Section 608. Conflicting Interests......................45
Section 609. Corporate Trustee Required;
Eligibility..............................46
Section 610. Resignation and Removal;
Appointment of Successor Trustee.........46
Section 611. Acceptance of Appointment by
Successor................................48
Section 612. Merger, Conversion, Consolidation
or Succession to Business................48
Section 613. Preferential Collection of Claims
Against Issuer...........................49
ARTICLE SEVEN
HOLDERS' LISTS AND REPORTS BY TRUSTEE AND ISSUER
Section 701. Issuer to Furnish Trustee Names and
Addresses of Holders.....................49
Section 702. Disclosure of Names and Addresses
of Holders...............................50
Section 703. Reports by Trustee.........................50
Section 704. Reports by Issuer and the Company..........50
(iv)
ARTICLE EIGHT
CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE
Section 801. Issuer and Company May Consolidate,
etc., Only on Certain Terms..............51
Section 802. Successor Substituted......................53
ARTICLE NINE
SUPPLEMENTAL INDENTURES
Section 901. Supplemental Indentures and
Agreements without Consent of
Holders..................................54
Section 902. Supplemental Indentures and
Agreements with Consent of Holders.......55
Section 903. Execution of Supplemental
Indentures and Agreements................56
Section 904. Effect of Supplemental Indentures..........56
Section 905. Conformity with Trust Indenture
Act......................................57
Section 906. Reference in Securities to
Supplemental Indentures..................57
Section 907. Notice of Supplemental Indentures..........57
ARTICLE TEN
COVENANTS
Section 1001. Payment of Principal and Interest..........57
Section 1002. Maintenance of Office or Agency............57
Section 1003. Money for Security Payments to Be
Held in Trust............................58
Section 1004. Corporate Existence........................59
Section 1005. Payment of Taxes and Other Claims..........60
Section 1006. Maintenance of Properties..................60
Section 1007. Limitation on Liens........................61
Section 1008. Limitation on Sale and Leaseback
Transactions.............................62
Section 1009 Limitation on Restricted Subsidiary
Funded Debt..............................63
Section 1010. Provision of Financial Statements..........64
Section 1011. Statement by Officers as to
Default..................................65
Section 1012. Waiver of Certain Covenants................66
ARTICLE ELEVEN
COMPANY GUARANTEES OF SECURITIES
Section 1101. Unconditional Company Guarantees...........66
Section 1102. Execution of Company Guarantees............67
Section 1103. Form of Company Guarantees.................68
(v)
ARTICLE TWELVE
DEFEASANCE AND COVENANT DEFEASANCE
Section 1201. Issuer's Option to Effect
Defeasance or Covenant Defeasance........69
Section 1202. Defeasance and Discharge...................69
Section 1203. Covenant Defeasance........................70
Section 1204. Conditions to Defeasance or
Covenant Defeasance......................71
Section 1205. Deposited Money and U.S. Government
Obligations to be Held in Trust;
Other Miscellaneous Provisions...........72
Section 1206. Reinstatement..............................72
ARTICLE THIRTEEN
REDEMPTION OF SECURITIES
Section 1301. Tax Redemption.............................73
Section 1302. Applicability of Article...................74
Section 1303. Election to Redeem; Notice to
Trustee..................................74
Section 1304. Notice of Redemption.......................74
Section 1306. Deposit of Tax Redemption Price............75
Section 1307. Securities Payable on Redemption
Date.....................................75
SIGNATURES............................................... 76
(vi)
ACKNOWLEDGMENTS
EXHIBIT A Form of Notes
EXHIBIT B Form of Debentures
(vii)
INDENTURE dated as of [ ], 1996, among MILLENNIUM AMERICA INC., a
Delaware corporation (the "Issuer"), MILLENNIUM CHEMICALS INC., a Delaware
corporation, as guarantor (the "Company"), and THE BANK OF NEW YORK, a New York
banking corporation, as trustee (the "Trustee").
RECITALS OF THE ISSUER AND COMPANY
The Issuer has duly authorized the creation of (i) an issue of [ ]%
Senior Notes Due November __, 2006 (the "Notes") and (ii) an issue of [ ]%
Senior Debentures Due November __, 2026 (the "Debentures", and together with the
Notes, the "Securities"), of substantially the tenor and amounts hereinafter set
forth, and to provide therefor the Issuer has duly authorized the execution and
delivery of this Indenture and the Securities.
The Company is the indirect parent of the Issuer and indirectly owns
beneficially and of record 100% of the Capital Stock of the Issuer and the
Company will derive direct and indirect economic benefit from the issuance of
the Securities. Accordingly, the Company has duly authorized the execution and
delivery of this Indenture to provide for the guarantees by the Company (the
"Company Guarantees") with respect to the Securities as set forth in this
Indenture.
This Indenture is subject to, and shall be governed by, the provisions
of the Trust Indenture Act that are required to be part of and to govern
indentures qualified under the Trust Indenture Act.
All acts and things necessary have been done to make (i) the
Securities, when duly issued and executed by the Issuer and authenticated and
delivered hereunder, the valid obligations of the Issuer, (ii) the Company
Guarantees, when duly issued and executed by the Company and delivered
hereunder, the valid obligations of the Company, and (iii) this Indenture a
valid agreement of the Issuer and the Company in accordance with the terms of
this Indenture.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase of the
Securities by the Holders thereof, it is mutually covenanted and agreed, for the
equal and proportionate benefit of all Holders of the Securities, as follows:
ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
Section 101. Definitions.
For all purposes of this Indenture, except as otherwise expressly
provided or unless the context otherwise requires:
(a) the terms defined in this Article have the meanings assigned
to them in this Article, and include the plural as well as the singular;
(b) all other terms used herein which are defined in the Trust
Indenture Act, either directly or by reference therein, have the meanings
assigned to them therein;
(c) all accounting terms not otherwise defined
herein have the meanings assigned to them in accordance with
GAAP;
(d) the words "herein", "hereof" and "hereunder" and other words
of similar import refer to this Indenture as a whole and not to any
particular Article, Section or other subdivision;
(e) all references to $, US$, dollars or United States dollars
shall refer to the lawful currency of the United States of America; and
(f) all references herein to particular Sections or Articles
refer to this Indenture unless otherwise so indicated.
"Affiliate" means, with respect to any specified Person, 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" when used with respect to any Person means the power to
direct the management and policies of such Person, directly or indirectly,
whether through ownership of voting securities, by contract or otherwise; and
the terms "controlling" and "controlled" have meanings correlative to the
foregoing.
"Agent Member" means any member of, or participant in, the Depositary.
"Applicable Procedures" means, with respect to any transfer or
transaction involving a Global Security or beneficial interest therein, the
rules and procedures of the Depositary for such Global Security to the extent
applicable to such transaction and as in effect from time to time.
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"Bankruptcy Law" means title 11, United States Bankruptcy Code of
1978, as amended, or any similar United States federal or state law relating to
bankruptcy, insolvency, receivership, winding up, liquidation, reorganization or
relief of debtors or any amendment to, succession to or change in any such law.
"Board of Directors" means the board of directors of the Issuer or the
Company, as the case may be, or any duly authorized committee of such board.
"Board Resolution" means a copy of a resolution certified by the
Secretary or an Assistant Secretary of the Issuer or the Company, as the case
may be, to have been duly adopted by its Board of Directors and to be in full
force and effect on the date of such certification, and delivered to the
Trustee.
"Business Day" means each Monday, Tuesday, Wednesday, Thursday and
Friday which is not a day on which banking institutions or trust companies in
The City of New York or the city in which the Corporate Trust Office of the
Trustee is located are authorized or obligated by law, regulation or executive
order to close.
"Capital Stock" of any Person means any and all shares, interests,
participations or other equivalents (however designated) of corporate stock of
such Person.
"Cash Equivalents" means (i) any evidence of Debt, maturing not more
than six months after the date of acquisition, issued by the United States of
America, or an instrumentality or agency thereof and guaranteed fully as to
principal, premium, if any, and interest by the United States of America, (ii)
any certificate of deposit, time deposit, money market account or bankers'
acceptance, maturing not more than six months after the date of acquisition,
issued by any commercial banking institution that is a member of the Federal
Reserve System and that has combined capital and surplus and undivided profits
of not less than $500,000,000, whose debt has a rating, at the time as of which
any investment therein is made, of "P-1" (or higher) according to Moody's or "A-
1" (or higher) according to S&P, or (iii) commercial paper, maturing not more
than three months after the date of acquisition, issued by any corporation
(other than an Affiliate of the Issuer) organized and existing under the laws of
the United States of America with a rating, at the time as of which any
investment therein is made, of "P-1" (or higher) according to Moody's or "A-1"
(or higher) according to S&P.
"Commission" means the Securities and Exchange Commission, as from
time to time constituted, created under the Exchange Act, or, if at any time
after the execution of this Indenture such Commission is not existing and
performing the duties now assigned to it under the Trust Indenture Act, then the
body performing such duties at such time.
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"Company" means Millennium Chemicals Inc., a Delaware corporation,
until a successor corporation shall have become such pursuant to the applicable
provisions of this Indenture, and thereafter "Company" shall mean such successor
corporation.
"Company Guarantees" means the unconditional guarantees by Millennium
Chemicals Inc. of the due and punctual payment of principal of, and interest
on, the Securities, as provided pursuant to Article Eleven.
"Consolidated Net Tangible Assets" means, at any date of
determination, the total amount of assets (less applicable reserves and other
properly deductible items) after deducting therefrom (i) 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 excluding current maturities of
long term debt), and (ii) the value (net of any applicable reserves) of all
goodwill, trade names, trademarks, purchased technology, patents, unamortized
debt discount and other like intangible assets, all as set forth on the most
recent balance sheet of the Issuer and its Consolidated Subsidiaries, computed
in accordance with GAAP.
"Consolidation" means, with respect to any Person, the consolidation
of the accounts of such Person and each of its Subsidiaries if and to the extent
the accounts of such Person and each of its Subsidiaries would normally be
consolidated with those of such Person, all in accordance with GAAP. The term
"Consolidated" shall have a similar meaning.
"Corporate Trust Office" means the office of the Trustee or an
Affiliate thereof at which at any particular time the corporate trust business
for the purposes of this Indenture shall be principally administered, which
office at the date of execution of this Indenture is located at 101 Barclay
Street, Floor 21 West, New York, New York 10286.
"Debt" means (without duplication), with respect to any Person,
whether recourse is to all or a portion of the assets of such Person and whether
or not contingent, (i) every obligation of such Person for money borrowed (other
than letters of credit), (ii) every obligation of such Person evidenced by
bonds, debentures, notes or other similar instruments, (iii) every obligation of
such Person issued or assumed as the deferred purchase price of property or
services, if and to the extent that such obligation would appear as a liability
upon the balance sheet of such Person, prepared in accordance with GAAP (but
excluding trade accounts payable or accrued liabilities arising in the ordinary
course of business), and (iv) every obligation of the type referred to in
clauses (i) through (iii) above of another Person and all Debt of another Person
the payment of
-4-
which, in either case, such Person has Guaranteed or is responsible or liable,
directly or indirectly, as obligor, Guarantor or otherwise.
"Default" means any event which is, or after notice or passage of any
time or both would be, an Event of Default.
"Depositary" means, with respect to the Securities issued in the form
of one or more Global Securities, DTC, its nominees and successors, or another
Person designated as Depositary by the Issuer, which must be a clearing agency
registered under the Exchange Act.
"DTC" means The Depository Trust Company, a New York corporation.
"Exchange Act" means the Securities Exchange Act of 1934, as amended
from time to time, or any successor statute.
"Funded Debt" means Debt that by its terms (i) matures more than one
year from the date of original issuance or creation or (ii) matures within one
year from such date, but is renewable or extendible at the option of the obligor
to a date more than one year from such date.
"GAAP" means generally accepted accounting principles in the United
States, consistently applied.
"Global Security" means a Security that is registered in the Security
Register in the name of a Depositary or a nominee thereof.
"Guaranty" by any Person means any obligation, contingent or
otherwise, of such Person guaranteeing any Debt of any other Person (the
"primary obligor") in any manner, whether directly or indirectly, and including,
without limitation, any obligation of such Person (i) to purchase or pay (or
advance or supply funds for the purchase or payment of) such Debt or to purchase
(or to advance or supply funds for the purchase of) any security for the payment
of such Debt, (ii) to purchase property, securities or services for the purpose
of assuring the holder of such Debt of the payment of such Debt, or (iii) to
maintain working capital, equity capital or other financial statement condition
or liquidity of the primary obligor so as to enable the primary obligor to pay
such Debt (and "Guaranteed" and "Guarantor" shall have meanings correlative to
the foregoing); provided, however, that the Guaranty by any Person shall not
include endorsements by such Person for collection or deposit, in either case,
in the ordinary course of business.
"Holder" means a Person in whose name a Security is registered in the
Security Register.
-5-
"Incur" means, with respect to any Debt of any Person, to create,
issue, incur (by conversion, exchange or otherwise), assume, Guaranty or
otherwise become, directly or indirectly, liable in respect of such Debt or the
recording, as required pursuant to GAAP or otherwise, of any such Debt or other
obligation on the balance sheet of such Person (and "Incurrence" and "Incurred"
shall have meanings correlative to the foregoing); provided, however, that a
change in GAAP that results in an obligation of such Person that exists at such
time becoming Debt shall not be deemed an Incurrence of such Debt.
"Indenture" means this instrument as originally executed (including
all annexes thereto) and as it may from time to time be supplemented or amended
by one or more indentures supplemental hereto entered into pursuant to the
applicable provisions hereof, including, for all purposes of this instrument and
any such supplemental indenture, the provisions of the Trust Indenture Act that
are deemed to be a part of and govern this instrument and any such supplemental
indenture, respectively.
"Indenture Obligations" means the obligations of the Company and any
other obligor under this Indenture or under the Securities, including any
Guarantor, to pay principal of and interest on the Securities when due and
payable, and all other amounts due or to become due under or in connection with
this Indenture, the Securities and performance of all other obligations to the
Trustee and the Holders under this Indenture and the Securities, according to
the terms hereof and thereof.
"Interest Payment Date" means the Stated Maturity of an installment of
interest on the Securities.
"Issuer" means Millennium America Inc., a corporation incorporated
under the laws of Delaware, until a successor corporation shall have become such
pursuant to the applicable provisions of this Indenture, and thereafter "Issuer"
shall mean such successor corporation.
"Issuer Request" or "Issuer Order" means a written request or order
signed in the name of the Issuer by any one of its Chairman of the Board, its
Vice Chairman, its President, its Chief Executive Officer, its Chief Operating
Officer, its Chief Financial Officer or a Vice President, and by any one of its
Treasurer, an Assistant Treasurer, its Secretary or an Assistant Secretary, and
delivered to the Trustee.
"Lien" means, with respect to any property or assets, any mortgage or
deed of trust, pledge, hypothecation, assignment, deposit arrangement, security
interest, lien, charge, easement (other than any easement not materially
impairing usefulness or marketability), encumbrance, preference, priority or
other security agreement or preferential arrangement of any kind or nature
whatsoever on or with respect to such
-6-
property or assets (including, without limitation, any conditional sale or other
title retention agreement having substantially the same economic effect as any
of the foregoing).
"Maturity" means, when used with respect to any Security, the date on
which the principal of such Securities becomes due and payable as therein
provided or as provided in this Indenture, whether at the Stated Maturity or by
declaration of acceleration or otherwise.
"Moody's" means Moody's Investors Service, Inc. or any successor
rating agency.
"Officers' Certificate" means a certificate signed by the Chairman of
the Board, Vice Chairman, the President, the Chief Executive Officer, the Chief
Operating Officer, the Chief Financial Officer or a Vice President, and by the
Treasurer, an Assistant Treasurer, the Secretary or an Assistant Secretary, of
the Issuer or the Company, as the case may be, and delivered to the Trustee.
"Opinion of Counsel" means a written opinion of legal counsel, who may
be counsel for the Issuer, the Company or the Trustee, unless an Opinion of
Independent Counsel is required pursuant to the terms of this Indenture, and who
shall be acceptable to the Trustee.
"Opinion of Independent Counsel" means a written opinion of counsel,
who may be regular outside counsel for the Issuer, but which is issued by a
Person who is not an employee or consultant (other than non-employee legal
counsel) of the Issuer or the Company, and who shall be reasonably acceptable to
the Trustee.
"Other Jurisdiction" has the meaning given it in Section 301.
"Outstanding" when used with respect to Securities means, as of the
date of determination, all Securities theretofore authenticated and delivered
under this Indenture, except:
(a) Securities theretofore cancelled by the
Trustee or delivered to the Trustee for cancellation;
(b) Securities, or portions thereof, payment for which money in
the necessary amount has been theretofore deposited with the Trustee or any
Paying Agent (other than the Issuer) in trust or set aside and segregated
in trust by the Issuer (if the Issuer shall act as the Paying Agent) for
the Holders of such Securities;
-7-
(c) Securities, except to the extent provided in Sections 1202
and 1203, with respect to which the Issuer has effected defeasance or
covenant defeasance as provided in Article Twelve; and
(d) Securities which have been paid pursuant to Section 308 or in
exchange for or in lieu of which other Securities have been authenticated
and delivered pursuant to this Indenture, other than any such Securities in
respect of which there shall have been presented to the Trustee and the
Issuer proof reasonably satisfactory to each of them that such Securities
are held by a bona fide purchaser in whose hands the Securities are valid
obligations of the Issuer;
provided, however, that in determining whether the Holders of the requisite
principal amount of Outstanding Securities have given any request, demand,
authorization, direction, notice, consent or waiver hereunder, Securities owned
by the Issuer, the Company or any other obligor upon the Securities or any
Affiliate of the Issuer, the Company or such other obligor shall be disregarded
and deemed not to be Outstanding, except that, in determining whether the
Trustee shall be protected in relying upon any such request, demand,
authorization, direction, notice, consent or waiver, only Securities which the
Trustee actually knows to be so owned shall be so disregarded. Securities so
owned which have been pledged in good faith may be regarded as Outstanding if
the pledgee establishes to the reasonable satisfaction of the Trustee the
pledgee's right so to act with respect to such Securities and that the pledgee
is not the Issuer, the Company or any other obligor upon the Securities or any
Affiliate of the Issuer, the Company or such other obligor.
"Paying Agent" means any Person (including the Issuer) authorized by
the Issuer to pay the principal of or interest on, any Securities on behalf of
the Issuer.
"Person" means any individual, corporation, partnership, limited
liability company, joint venture, association, joint-stock company, trust,
unincorporated organization or government or any agency or political subdivision
thereof.
"Predecessor Security" of any particular Security means every previous
Security evidencing all or a portion of the same debt as that evidenced by such
particular Security. For purposes of this definition, any Security authenticated
and delivered under Section 307 in exchange for a mutilated Security or in lieu
of a lost, destroyed or stolen Security shall be deemed to evidence the same
debt as the mutilated, lost, destroyed or stolen Security.
"Regular Record Date" for the interest payable on any Interest Payment
Date means the [ ] or [ ] (whether or not a Business Day) next preceding
such Interest Payment Date.
-8-
"Responsible Officer" when used with respect to the Trustee means any
officer assigned to the Corporate Trust Office or any agent of the Trustee
appointed hereunder, including any vice president, assistant vice president, or
any other officer or assistant officer of the Trustee or any agent of the
Trustee appointed hereunder to whom any corporate trust matter is referred
because of his or her knowledge of and familiarity with the particular subject.
"Restricted Property" means (i) any land, land improvements, buildings
and fixtures (to the extent they constitute real property interests, including
any leasehold interest therein) constituting a principal corporate office or a
manufacturing, distribution or warehouse facility (other than such as are
determined in good faith by the Board of Directors of the Issuer to be
immaterial to the total business conducted by the Issuer and the Restricted
Subsidiaries as a whole) and (ii) any shares of capital stock or indebtedness of
a Restricted Subsidiary.
"Restricted Subsidiary" means any Subsidiary of the Issuer which owns
Restricted Property and is organized under the laws of a jurisdiction in the
United States.
"S&P" means Standard & Poor's Rating Group, a division of McGraw-Hill,
Inc., or any successor rating agency.
"Securities Act" means the Securities Act of 1933, as amended from
time to time, or any successor statute.
"Stated Maturity" when used with respect to any Security or any
installment of interest thereon, means the date specified in such Security as
the fixed date on which the principal of such Security or such installment of
interest, as the case may be, is due and payable.
"Subsidiary" means, with respect to any Person, any corporation,
association or other business entity of which more than 50% of the total voting
power of shares of securities entitled (without regard to the occurrence of any
contingency) to vote in the election of directors, managers or trustees thereof
is at the time owned or controlled, directly or indirectly, by such Person or
one or more of the other Subsidiaries of such Person or a combination thereof.
"Trustee" means, except as set forth in Section 1205, the Person named
as the "Trustee" in the first paragraph of this Indenture, until a successor
trustee shall have become such pursuant to the applicable provisions of this
Indenture, and thereafter "Trustee" shall mean such successor trustee.
"Trust Indenture Act" means the Trust Indenture Act of 1939, as
amended, or any successor statute.
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"U.S. Government Obligations" means securities that are (i) direct
obligations of the United States of America for the timely payment of which its
full faith and credit is pledged or (ii) obligations of a Person controlled or
supervised by and acting as an agency or instrumentality of the United States of
America the timely payment of which is unconditionally guaranteed as a full
faith and credit obligation by the United States of America, which, in either
case, are not callable or redeemable at the option of the issuer thereof, and
shall also include a depository receipt issued by a bank (as defined in Section
3(a)(2) of the Securities Act), as custodian with respect to any such U.S.
Government Obligation, or a specific payment of principal of or interest on any
such U.S. Government Obligation held by such custodian for the account of the
holder of such depository receipt, provided that (except as required by law)
such custodian is not authorized to make any deduction from the amount payable
to the holder of such depository receipt from any amount received by the
custodian in respect of the U.S. Government Obligation or the specific payment
of principal of or interest on the U.S. Government Obligation evidenced by such
depository receipt.
"Value" means, with respect to a Sale and Lease-Back Transaction, at
the time of determination, 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 and (ii) the fair value of such property at the time
of entering into such Sale and Lease-Back Transaction; for purposes of clause
(ii) of this sentence, fair value shall be determined by the Board of Directors
of the Issuer in its good faith judgment.
Section 102. Other Definitions.
Term Defined in Section
"Act" 105
"Additional Amounts" 301
"covenant defeasance" 1203
"Defaulted Interest" 308
"defeasance" 1202
"Defeased Securities" 1201
"Event of Default" 501
"Required Filing Dates" 1010
"Sale and Lease-Back Transaction" 1008
"Secured Debt" 1007
"Securities" Recitals
"Security Register" 306
"Security Registrar" 306
"Special Payment Date" 308
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"Special Record Date" 308
"Surviving Entity" 801
"Surviving Guarantor Entity" 801
"Tax Event" 1301
"Tax Redemption" 1301
"Tax Redemption Date" 1301
"Tax Redemption Price" 1301
Section 103. Compliance Certificates and Opinions.
Upon any application or request by the Issuer or the Company to the
Trustee to take any action under any provision of this Indenture, the Issuer and
the Company (if applicable) and any other obligor on the Securities (if
applicable) shall furnish to the Trustee an Officers' Certificate in form and
substance reasonably acceptable to the Trustee stating that all conditions
precedent, if any, provided for in this Indenture (including any covenant
compliance with which constitutes a condition precedent) relating to the
proposed action have been complied with, and an Opinion of Counsel in form and
substance reasonably acceptable to the Trustee stating that in the opinion of
such counsel all such conditions precedent, if any, have been complied with,
except that, in the case of any such application or request as to which the
furnishing of such certificates or opinions is specifically required by any
provision of this Indenture relating to such particular application or request,
no additional certificate or opinion need be furnished.
Every certificate or Opinion of Counsel or Opinion of Independent
Counsel with respect to compliance with a condition or covenant provided for in
this Indenture shall comply with the requirements of the Trust Indenture Act.
Every certificate or Opinion of Counsel or Opinion of Independent
Counsel with respect to compliance with a condition or covenant provided for in
this Indenture shall include:
(a) a statement that each individual signing such certificate or
individual or firm signing such opinion has read such covenant or condition
and the definitions herein relating thereto;
(b) 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;
(c) a statement that, in the opinion of each such individual or
such firm, he or it has made such examination or investigation as is
necessary to
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enable him or it to express an informed opinion as to whether
or not such covenant or condition has been complied with; and
(d) a statement as to whether, in the opinion of each such
individual or such firm, such condition or covenant has been complied with.
Section 104. Form of Documents Delivered to Trustee.
In any case where several matters are required to be certified by, or
covered by an opinion of, any specified Person, it is not necessary that all
such matters be certified by, or covered by the opinion of, only one such
Person, or that they be so certified or covered by only one document, but one
such Person may certify or give an opinion with respect to some matters and one
or more other such Persons as to other matters, and any such Person may certify
or give an opinion as to such matters in one or several documents.
Any certificate or opinion of an officer of the Issuer, the Company or
other obligor on the Securities may be based, insofar as it relates to legal
matters, upon a certificate or opinion of, or representations by, counsel,
unless such officer knows, or in the exercise of reasonable care should know,
that the certificate or opinion or representations with respect to the matters
upon which his certificate or opinion is based are erroneous. Any such
certificate or opinion may be based, insofar as it relates to factual matters,
upon a certificate or opinion of, or representations by, an officer or officers
of the Issuer, the Company or other obligor on the Securities stating that the
information with respect to such factual matters is in the possession of the
Issuer, the Company or other obligor on the Securities, unless such officer or
counsel knows, or in the exercise of reasonable care should know, that the
certificate or opinion or representations with respect to such matters are
erroneous. Opinions of Counsel required to be delivered to the Trustee may have
qualifications customary for opinions of the type required and counsel
delivering such Opinions of Counsel may rely on certificates of the Issuer or
government or other officials customary for opinions of the type required,
including certificates certifying as to matters of fact, including that various
financial covenants have been complied with.
Any certificate or opinion of an officer of the Issuer, the Company or
other obligor on the Securities may be based, insofar as it relates to
accounting matters, upon a certificate or opinion of, or representations by, an
accountant or firm of accountants in the employ of the Issuer, unless such
officer knows, or in the exercise of reasonable care should know, that the
certificate or opinion or representations with respect to the accounting matters
upon which his certificate or opinion may be based are erroneous. Any
certificate or opinion of any independent firm of public accountants filed with
the Trustee shall contain a statement that such firm is independent with respect
to the Issuer.
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Where any Person is required to make, give or execute two or more
applications, requests, consents, certificates, statements, opinions or other
instruments under this Indenture, they may, but need not, be consolidated and
form one instrument.
Section 105. Acts of Holders.
(a) Any request, demand, authorization, direction, notice, consent,
waiver or other action provided by this Indenture to be given or taken by
Holders may be embodied in and evidenced by one or more instruments of
substantially similar tenor signed by such Holders in person or by an agent duly
appointed in writing; and, except as herein otherwise expressly provided, such
action shall become effective when such instrument or instruments are delivered
to the Trustee and, where it is hereby expressly required, to the Issuer or the
Company. Such instrument or instruments (and the action embodied therein and
evidenced thereby) are herein sometimes referred to as the "Act" of the Holders
signing such instrument or instruments. Proof of execution of any such
instrument or of a writing appointing any such agent shall be sufficient for any
purpose of this Indenture and conclusive in favor of the Trustee, the Issuer and
the Company, if made in the manner provided in this Section 105.
(b) The ownership of Securities shall be proved by the
Security Register.
(c) Any request, demand, authorization, direction, notice, consent,
waiver or other Act by the Holder of any Security shall bind every future Holder
of the same Security or the Holder of every Security issued upon the transfer
thereof or in exchange therefor or in lieu thereof, in respect of anything done,
suffered or omitted to be done by the Trustee, any Paying Agent or the Issuer,
the Company or any other obligor of the Securities in reliance thereon, whether
or not notation of such action is made upon such Security.
(d) The fact and date of the execution by any Person of any such
instrument or writing may be proved by the affidavit of a witness of such
execution or by a certificate of a notary public or other officer authorized by
law to take acknowledgments of deeds, certifying that the individual signing
such instrument or writing acknowledged to him the execution thereof. Where such
execution is by a signer acting in a capacity other than his individual
capacity, such certificate of affidavit shall also constitute sufficient proof
of his authority. The fact and date of the execution of any such instrument or
writing, or the authority of the Person executing the same, may also be proved
in any other manner which the Trustee deems sufficient.
(e) If the Issuer shall solicit from the Holders any request, demand,
authorization, direction, notice, consent, waiver or other Act, the Issuer may,
at its option, by or pursuant to a Board Resolution, fix in advance a record
date for the determination
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of such Holders entitled to give such request, demand, authorization, direction,
notice, consent, waiver or other Act, but the Issuer shall have no obligation to
do so. Notwithstanding Trust Indenture Act Section 316(c), any such record date
shall be the record date specified in or pursuant to such Board Resolution,
which shall be a date not more than 30 days prior to the first solicitation of
Holders generally in connection therewith and no later than the date such first
solicitation is completed.
If such a record date is fixed, such request, demand, authorization,
direction, notice, consent, waiver or other Act may be given before or after
such record date, but only the Holders of record at the close of business on
such record date shall be deemed to be Holders for purposes of determining
whether Holders of the requisite proportion of Securities then Outstanding have
authorized or agreed or consented to such request, demand, authorization,
direction, notice, consent, waiver or other Act, and for this purpose the
Securities then Outstanding shall be computed as of such record date; provided,
however, that no such request, demand, authorization, direction, notice,
consent, waiver or other Act by the Holders on such record date shall be deemed
effective unless it shall become effective pursuant to the provisions of this
Indenture not later than six months after the record date.
Section 106. Notices, etc., to the Trustee, the Issuer and
the Company.
Any request, demand, authorization, direction, notice, consent, waiver
or Act of Holders or other document provided or permitted by this Indenture to
be made upon, given or furnished to, or filed with:
(a) the Trustee by any Holder or by the Issuer or the Company or
any other obligor on the Securities shall be sufficient for every purpose
(except as provided in Section 501(c)) hereunder if in writing and mailed,
first-class postage prepaid, or delivered by recognized overnight courier,
to or with the Trustee at its Corporate Trust Office, Attention: Corporate
Trust Administration, or at any other address previously furnished in
writing to the Holders or the Issuer, the Company or any other obligor on
the Securities by the Trustee; or
(b) the Issuer or the Company by the Trustee or any Holder shall
be sufficient for every purpose (except as provided in Section 501(c))
hereunder if in writing and mailed, first-class postage prepaid, or
delivered by recognized overnight courier, to the Issuer or the Company
addressed to it c/o Millennium Chemicals Inc., 99 Wood Avenue South,
Iselin, New Jersey 08830, or at any other address previously furnished in
writing to the Trustee by the Issuer or the Company.
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Section 107. Notice to Holders; Waiver.
Where this Indenture provides for notice to Holders of any event, such
notice shall be sufficiently given (unless otherwise herein expressly provided)
if in writing and mailed, first-class postage prepaid, or delivered by
recognized overnight courier, to each Holder affected by such event, at his
address as it appears in the Security Register, not later than the latest date,
and not earlier than the earliest date, prescribed for the giving of such
notice. In any case where notice to Holders is given by mail, neither the
failure to mail such notice, nor any defect in any notice so mailed, to any
particular Holder shall affect the sufficiency of such notice with respect to
other Holders. Any notice when mailed to a Holder in the aforesaid manner shall
be conclusively deemed to have been received by such Holder whether or not
actually received by such Holder. Where this Indenture provides for notice in
any manner, such notice may be waived in writing by the Person entitled to
receive such notice, either before or after the event, and such waiver shall be
the equivalent of such notice. Waivers of notice by Holders shall be filed with
the Trustee, but such filing shall not be a condition precedent to the validity
of any action taken in reliance upon such waiver.
In case, by reason of the suspension of regular mail service or by
reason of any other cause, it shall be impracticable to mail notice of any event
as required by any provision of this Indenture, then any method of giving such
notice as shall be reasonably satisfactory to the Trustee shall be deemed to be
a sufficient giving of such notice.
Section 108. Conflict with Trust Indenture Act.
If any provision hereof limits, qualifies or conflicts with any
provision of the Trust Indenture Act or another provision which is required or
deemed to be included in this Indenture by any of the provisions of the Trust
Indenture Act, the provision or requirement of the Trust Indenture Act shall
control. If any provision of this Indenture modifies or excludes any provision
of the Trust Indenture Act that may be so modified or excluded, the latter
provision shall be deemed to apply to this Indenture as so modified or to be
excluded, as the case may be.
Section 109. Effect of Headings and Table of Contents.
The Article and Section headings herein and the Table of Contents are
for convenience only and shall not affect the construction hereof.
Section 110. Successors and Assigns.
All covenants and agreements in this Indenture by the Issuer and the
Company shall bind their respective successors and assigns, whether so expressed
or not.
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Section 111. Separability Clause.
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 not in any way be affected or impaired thereby.
Section 112. Benefits of Indenture.
Nothing in this Indenture or in the Securities, express or implied,
shall give to any Person (other than the parties hereto and their successors
hereunder, any Paying Agent or the Holders) any benefit or any legal or
equitable right, remedy or claim under this Indenture.
Section 113. Governing Law.
THIS INDENTURE, THE SECURITIES AND THE COMPANY GUARANTEES SHALL BE
GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW
YORK, WITHOUT GIVING EFFECT TO THE CONFLICTS OF LAWS PRINCIPLES THEREOF.
Section 114. Legal Holidays.
In any case where any Interest Payment Date, Maturity or Stated
Maturity of any Security shall not be a Business Day, then (notwithstanding any
other provision of this Indenture or of the Securities) payment of interest or
principal need not be made on such date, but may be made on the next succeeding
Business Day with the same force and effect as if made on the Interest Payment
Date or at the Maturity or Stated Maturity and no interest shall accrue with
respect to such payment for the period from and after such Interest Payment
Date, Maturity or Stated Maturity, as the case may be, to the next succeeding
Business Day.
Section 115. Independence of Covenants.
All covenants and agreements in this Indenture shall be given
independent effect so that if a particular action or condition is not permitted
by any such covenants, the fact that it would be permitted by an exception to,
or be otherwise within the limitations of, another covenant shall not avoid the
occurrence of a Default or an Event of Default if such action is taken or
condition exists.
Section 116. Schedules, Exhibits and Annexes.
All schedules, exhibits and annexes attached hereto are by this
reference made a part hereof with the same effect as if herein set forth in
full.
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Section 117. Counterparts.
This Indenture may be executed with counterpart signature pages or in
any number of counterparts, each of which counterparts shall be an original; but
such counterparts shall together constitute but one and the same instrument.
Section 118. No Personal Liability of Directors, Officers,
Incorporators, Employees and Stockholders.
No recourse under or upon any obligation, covenant or agreement of
this Indenture or any indenture supplemental hereto or of any Security or
Company Guarantee, or for any claim based thereon or otherwise in respect
thereof, shall be had against any incorporator, stockholder, officer, director
or employee, as such, past, present or future, of the Issuer or the Company or
any of their respective Affiliates or of any successor corporation thereof,
either directly or through the Issuer, the Company or any such successor
corporation, whether by virtue of any constitution, statute or rule of law, or
by the enforcement of any assessment or penalty or otherwise; it being expressly
understood that this Indenture and the obligations issued hereunder are solely
corporate obligations, and that no such personal liability whatever shall attach
to, or is or shall be incurred by, the incorporators, stockholders, officers,
directors or employees, as such, of the Issuer or the Company or of any
successor corporation thereof, or any of them, because of the creation of the
Debt hereby authorized, or under or by reason of the obligations, covenants or
agreements contained in this Indenture or in any of the Securities or the
Company Guarantees or implied therefrom; and that any and all such personal
liability of every name and nature, either at common law or in equity or by
constitution or statute, of, and any and all such rights and claims against,
every such incorporator, stockholder, officer, director or employee, as such,
because of the creation of the indebtedness hereby authorized, or under or by
reason of the obligations, covenants or agreements contained in this Indenture
or in any of the Securities or the Company Guarantees or implied therefrom, are
hereby expressly waived and released as a condition of, and as a consideration
for, the execution of this Indenture and the issue of such Securities and the
Company Guarantees.
ARTICLE TWO
SECURITY FORMS
Section 201. Forms Generally.
The (i) Notes and the Trustee's certificate of authentication thereon
shall be in substantially the form of Exhibit A hereto; and (ii) the Debentures
and the Trustee's certification of authentication thereon shall be in
substantially the form of Exhibit B
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hereto, each Security with such appropriate insertions, omissions, substitutions
and other variations as are required or permitted hereby and may have such
letters, numbers or other marks of identification and such legends or
endorsements placed thereon as may be required to comply with the rules of any
securities exchange, any organizational document or governing instrument or
applicable law or as may, consistently herewith, be determined by the officers
executing such Securities, as evidenced by their execution of the Securities.
Any portion of the text of any Security may be set forth on the reverse thereof,
with an appropriate reference thereto on the face of the Security.
The definitive Securities, if any, and the Company Guarantees to be
endorsed thereon shall be printed, lithographed or engraved or produced by any
combination of these methods or may be produced in any other manner permitted by
the rules of any securities exchange on which the Securities may be listed, all
as determined by the officers executing such Securities, as evidenced by their
execution of such Securities.
The terms and provisions contained in the form of the Securities set
forth in Exhibits A and B shall constitute, and are hereby expressly made, a
part of this Indenture and, to the extent applicable, the Issuer, the Company
and the Trustee, by their execution and delivery of this Indenture, expressly
agree to such terms and provisions and to be bound thereby.
ARTICLE THREE
THE SECURITIES
Section 301. Title and Terms.
The aggregate principal amount of Securities which may be
authenticated and delivered under this Indenture is limited to $500,000,000 in
principal amount of Notes and $250,000,000 in principal amount of Debentures,
except for Securities authenticated and delivered upon registration of transfer
of, or in exchange for, or in lieu of, other Securities pursuant to Sections
303, 304, 305, 306, 307 or 906.
The Notes shall be known and designated as the "[ ]% Senior Notes Due
November __, 2006" of the Issuer. The Stated Maturity of the Notes shall be [ ],
2006, and the Notes shall each bear interest at the rate of [ ]% per annum, from
[ ], 1996, or from the most recent Interest Payment Date to which interest has
been paid, payable semi-annually in arrears on __________ and __________ in each
year, commencing ______________, to persons who are registered Holders of
Securities at the close of business on the __________ or __________ immediately
preceding such Interest
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Payment Date, until the principal thereof is paid or duly provided for. Interest
on any overdue principal shall be payable on demand.
The Debentures shall be known and designated as the "[ ]% Senior
Debentures Due November __, 2026" of the Issuer. The Stated Maturity of the
Debentures shall be [ ], 2026, and the Debentures shall each bear interest at
the rate of [ ]% per annum, from [ ], 1996, or from the most recent Interest
Payment Date to which interest has been paid, payable semi-annually in arrears
on __________ and __________ in each year, commencing _______________, to
persons who are registered Holders of Securities at the close of business on the
__________ or __________ immediately preceding such Interest Payment Date, until
the principal thereof is paid or duly provided for. Interest on any overdue
principal shall be payable on demand.
Principal of, and interest on, the Securities shall be payable in
immediately available funds and, subject to the limitations applicable to Global
Securities, the Securities will be exchangeable and transferable at an office or
agency of the Issuer, one of which will be maintained for such purposes in The
City of New York (which initially will be the Corporate Trust Office of the
Trustee) or such other office or agency permitted under this Indenture;
provided, however, that payment of interest may be made at the option of the
Issuer by check mailed to the Persons entitled thereto as shown on the Security
Register on the Regular Record Date.
Any amounts paid, or caused to be paid, by the Company or its assignee
(or any successor to the Company or such assignee) under the Company Guarantees,
or paid by any successor to the Issuer under the Indenture, will be paid without
deduction or withholding of any and all present and future taxes, levies,
imposts or other governmental charges whatsoever imposed, assessed, levied or
collected by or for the account of the United Kingdom (including any political
subdivision or taxing authority thereof) or the jurisdiction of incorporation or
residence (other than the United States or any political subdivision or taxing
authority thereof) of any assignee of the Company or any successor to the Issuer
or the Company, or any political subdivision or taxing authority thereof (an
"Other Jurisdiction"), or, if deduction or withholding of any taxes, levies,
imposts or other governmental charges shall at any time be required by the
United Kingdom or an Other Jurisdiction, the Company, its assignee or any
relevant successor will (subject to timely compliance by the Holders or
beneficial owners of the relevant Securities with any relevant administrative
requirements) pay, or cause to be paid, such additional amounts ("Additional
Amounts") in respect of principal or interest as may be necessary in order that
the net amounts paid to the Holders of the Securities or the Trustee under the
Indenture, as the case may be, pursuant to the Indenture or the Company
Guarantees, after such deduction or withholding, shall equal the respective
amounts of principal and interest, as specified in the Securities to which such
Holders or the Trustee are entitled; provided, however, that the foregoing shall
not apply to (i) any present or future taxes,
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levies, imposts or other governmental charges which would not have been so
imposed, assessed, levied or collected but for the fact that the Holder or
beneficial owner of the relevant Security is or has been a domiciliary, national
or resident of, engages or has been engaged in business, maintains or has
maintained a permanent establishment, or is or has been physically present in,
the United Kingdom or an Other Jurisdiction, or otherwise has or has had some
connection with the United Kingdom or an Other Jurisdiction (other than the
holding or ownership of a Security, or the collection of principal of, and
interest on, or the enforcement of, a Security or Company Guarantee), (ii) any
present or future taxes, levies, imposts or other governmental charges which
would not have been so imposed, assessed, levied or collected but for the fact
that, where presentation is required, the relevant Security was presented more
than thirty days after the date such payment became due or was provided for,
whichever is later, (iii) any present or future taxes, levies, imposts or other
governmental charges which are payable otherwise than by deduction or
withholding from payments on or in respect of the relevant Security or Company
Guarantee, (iv) any present or future taxes, levies, imposts or other
governmental charges which would not have been so imposed, assessed, levied or
collected but for the failure to comply, on a sufficiently timely basis, with
any certification, identification or other reporting requirements concerning the
nationality, residence, identity or connection with the United Kingdom or an
Other Jurisdiction or any other relevant jurisdiction of the Holder or
beneficial owner of the relevant Security, if such compliance is required by a
statute or regulation of the United Kingdom or an Other Jurisdiction, or by a
relevant treaty, as a condition to relief or exemption from such taxes, levies,
imposts or other governmental charges, (v) any present or future taxes, levies,
imposts or other governmental charges (A) which would not have been so imposed,
assessed, levied or collected if the beneficial owner of the relevant Security
had been the Holder of such Security, or (B) which, if the beneficial owner of
such Security had held the Security as the Holder of such Security, would have
been excluded pursuant to clauses (i) through (iv) above, or (vi) any estate,
inheritance, gift, sale, transfer, personal property or similar tax, assessment
or other governmental charge.
No payments of Additional Amounts with respect to the Indenture or the
Company Guarantees will be made due to any deduction or withholding requirement
imposed by any governmental unit other than the United Kingdom or an Other
Jurisdiction (including any taxing authority or political subdivision thereof).
Except with respect to a Tax Redemption (as defined in Section
1301(a)), the Securities shall not be redeemable prior to Maturity and shall not
have the benefit of any sinking fund obligations.
The Securities shall be subject to defeasance or covenant defeasance
at the option of the Company as provided in Article Twelve.
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The Securities shall be guaranteed by the Company Guarantees pursuant
to the provisions of Article Eleven including, without limitation, the provision
for the release of the Company Guarantees under the conditions provided for
therein.
For all purposes hereunder, the Notes and the Debentures will be
treated as one class, including with respect to any amendment, waiver,
acceleration or any other Act of the Holders. The Notes and the Debentures rank
pari passu in right of payment with each other and rank pari passu in right of
payment of principal and interest with all other existing and future unsecured
and unsubordinated obligations of, and will be senior in right of payment and
interest to all subordinated obligations of, the Issuer and the Company,
respectively.
Section 302. Denominations.
The Securities shall be issuable only in fully registered form without
coupons, in denominations of $1,000 and any integral multiple thereof.
Section 303. Execution, Authentication, Delivery and Dating.
The Securities shall be executed on behalf of the Issuer by one of its
Chairman of the Board, its President, its Chief Executive Officer, its Chief
Operating Officer, its Chief Financial Officer or one of its Vice Presidents
under its corporate seal reproduced thereon attested by its Secretary or one of
its Assistant Secretaries. The signatures of any of these officers on the
Securities may be manual or facsimile.
Securities bearing the manual or facsimile signatures of individuals
who were at any time the proper officers of the Issuer shall bind the Issuer,
notwithstanding that such individuals or any of them have ceased to hold such
offices prior to the authentication and delivery of such Securities or did not
hold such offices at the date of such Securities.
At any time and from time to time after the execution and delivery of
this Indenture, the Issuer may deliver Securities executed by the Issuer to the
Trustee (with the Company Guarantees endorsed thereon) for authentication,
together with an Issuer Order for the authentication and delivery of such
Securities; and the Trustee in accordance with such Issuer Order shall
authenticate and make available for delivery such Securities as provided in this
Indenture and not otherwise.
Each Security shall be dated the date of its authentication.
No Security or Company Guarantee endorsed thereon shall be entitled to
any benefit under this Indenture or be valid or obligatory for any purpose
unless there appears on such Security a certificate of authentication
substantially in the form provided
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for herein duly executed by the Trustee by manual signature of an authorized
signatory, and such certificate upon any Security or Company Guarantee shall be
conclusive evidence, and the only evidence, that such Security or Company
Guarantee has been duly authenticated and delivered hereunder and is entitled to
the benefits of this Indenture.
In case the Issuer or Company, pursuant to Article Nine, shall, in a
single transaction or through a series of related transactions, be consolidated
or merged with or into any other Person or shall sell, assign, convey, transfer,
lease or otherwise dispose of all or substantially all of its properties and
assets on a Consolidated basis to any Person, and the successor Person resulting
from such consolidation or surviving such merger, or into which the Issuer or
the Company shall have been merged, or the successor Person which shall have
participated in the sale, assignment, conveyance, transfer, lease or other
disposition as aforesaid, shall have executed an indenture supplemental hereto,
in a form satisfactory to the Trustee, with the Trustee pursuant to Article
Nine, any of the Securities authenticated or delivered prior to such
consolidation, merger, sale, assignment, conveyance, transfer, lease or other
disposition may, from time to time, at the request of the successor Person, be
exchanged for other Securities executed in the name of the successor Person with
such changes in phraseology and form as may be appropriate, but otherwise in
substance of like tenor as the Securities surrendered for such exchange and of
like principal amount; and the Trustee, upon Issuer Request of the successor
Person, shall authenticate and deliver Securities as specified in such request
for the purpose of such exchange. If Securities shall at any time be
authenticated and delivered in any new name of a successor Person pursuant to
this Section 303 in exchange or substitution for or upon registration of
transfer of any Securities, such successor Person, at the option of the Holders
but without expense to them, shall provide for the exchange of all Securities at
the time Outstanding for Securities authenticated and delivered in such new
name.
The Trustee may appoint an authenticating agent acceptable to the
Issuer to authenticate Securities on behalf of the Trustee. 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 any Security Registrar or Paying
Agent to deal with the Company, the Issuer and its Affiliates.
If an officer whose signature is on a Security no longer holds that
office at the time the Trustee authenticates such Security, such Security shall
be valid nevertheless.
If an officer whose signature is on this Indenture no longer holds
office at the time the Trustee authenticates a Security on which the Company
Guarantee is endorsed, such Company Guarantee shall be valid nevertheless.
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Section 304. Temporary Securities.
Subject to limitations with respect to Global Securities, pending the
preparation of definitive Securities with the Company Guarantees endorsed
thereon, the Issuer and the Company may execute, and upon Issuer Order the
Trustee shall authenticate and make available for delivery, temporary Securities
with temporary Company Guarantees endorsed thereon, which are printed,
lithographed, typewritten or otherwise produced, in any authorized denomination,
substantially of the tenor of the definitive Securities with the Company
Guarantees endorsed thereon in lieu of which they are issued and with such
appropriate insertions, omissions, substitutions and other variations as the
officers executing such Securities may determine, as conclusively evidenced by
their execution of such Securities.
If temporary Securities are issued, the Issuer and the Company will
cause definitive Securities to be prepared without unreasonable delay. After the
preparation of definitive Securities, the temporary Securities shall be
exchangeable for definitive Securities upon surrender of the temporary
Securities at the office or agency of the Issuer designated for such purpose
pursuant to Section 1002, without charge to the Holder. Upon surrender for
cancellation of any one or more temporary Securities, the Issuer shall execute
and the Trustee shall authenticate and make available for delivery in exchange
therefor a like principal amount of definitive Securities of authorized
denominations with the Company Guarantees endorsed thereon. Until so exchanged
the temporary Securities shall in all respects be entitled to the same benefits
under this Indenture as definitive Securities.
Section 305. Global Securities.
(a) Each Global Security authenticated under this Indenture shall be
registered in the name of the Depositary designated by Issuer and the Company
for such Global Security or a nominee thereof and delivered to such Depositary
or a nominee thereof or custodian therefor, and each such Global Security shall
constitute a single Security for all purposes of this Indenture.
(b) Notwithstanding any other provision in this Indenture, no Global
Security may be exchanged in whole or in part for Securities registered, and no
transfer of a Global Security in whole or in part may be registered, in the name
of any Person other than the Depositary for such Global Security or a nominee
thereof unless (i) such Depositary (A) has notified the Issuer and the Company
that it is unwilling or unable to continue as Depositary for such Global
Security, or (B) has ceased to be a clearing agency registered as such under the
Exchange Act, (ii) there shall have occurred and be continuing an Event of
Default with respect to such Global Security, or (iii) the Issuer executes and
delivers to the Trustee an Issuer Order stating that all Global Securities shall
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be exchanged in whole for Securities that are not Global Securities (in which
case such exchange shall be effected by the Trustee). Upon the occurrence in
respect of any Global Security of any one or more of the conditions specified in
clauses (i), (ii) or (iii) of the preceding sentence, such Global Security may
be registered for transfer or exchange for Securities registered in the name of,
or authenticated and delivered to, such Persons as the Depositary shall direct.
All or any portion of a Global Security may be exchanged for a Security that has
a like aggregate principal amount and is not a Global Security, upon 20 days
prior written request made by the Depositary or its authorized representative to
the Trustee.
(c) If any Global Security is to be exchanged for other Securities or
cancelled in whole, it shall be surrendered by or on behalf of the Depositary or
its nominee to the Trustee, as Security Registrar, for exchange or cancellation
as provided in this Article Three. If any Global Security is to be exchanged for
other Securities or cancelled in part, or if another Security is to be exchanged
in whole or in part for a beneficial interest in any Global Security, then
either (i) such Global Security shall be so surrendered for exchange or
cancellation as provided in this Article Three, or (ii) the principal amount
thereof shall be reduced or increased by an amount equal to the portion thereof
to be so exchanged or cancelled, or equal to the principal amount of such other
Security to be so exchanged for a beneficial interest therein, as the case may
be, by means of an appropriate adjustment made on the records of the Trustee, as
Security Registrar, whereupon the Trustee, in accordance with the Applicable
Procedures, shall instruct the Depositary or its authorized representative to
make a corresponding adjustment to its records. Upon any such surrender or
adjustment of a Global Security, the Trustee shall, subject to Section 305(b)
and as otherwise provided in this Article Three, authenticate and make available
for delivery any Securities issuable in exchange for such Global Security (or
any portion thereof) to or upon the order of, and registered in such names as
may be directed by, the Depositary or its authorized representative. Upon the
request of the Trustee in connection with the occurrence of any of the events
specified in Section 305(b), the Issuer shall promptly make available to the
Trustee a reasonable supply of Securities that are not in the form of Global
Securities. The Trustee shall be entitled to rely upon any order, direction or
request of the Depositary or its authorized representative which is given or
made pursuant to this Article Three if such order, direction or request is given
or made in accordance with the Applicable Procedures.
(d) Every Security authenticated and delivered upon registration of
transfer of, or in exchange for or in lieu of, a Global Security or any portion
thereof, whether pursuant to this Article Three, Section 906 or otherwise, shall
be authenticated and delivered in the form of, and shall be, a Global Security,
unless such Security is registered in the name of a Person other than the
Depositary for such Global Security or a nominee thereof.
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(e) The Depositary or its nominee, as registered owner of a Global
Security, shall be the Holder of such Global Security for all purposes under
this Indenture, the Securities and the Company Guarantees, and owners of
beneficial interests in a Global Security shall hold such interests pursuant to
the Applicable Procedures. Accordingly, any such owner's beneficial interest in
a Global Security will be shown only on, and the transfer of such interest shall
be effected only through, records maintained by the Depositary or its nominee or
its Agent Members.
Section 306. Registration, Registration of Transfer and Exchange.
The Issuer shall cause to be kept at the Corporate Trust Office of the
Trustee a register (the register maintained in such office and in any other
office or agency designated pursuant to Section 1002 being herein sometimes
collectively referred to as the "Security Register") in which, subject to such
reasonable regulations as it may prescribe, the Issuer shall provide for the
registration of Securities and of transfers and exchanges of Securities. The
Trustee is hereby appointed "Security Registrar" for the purpose of registering
Securities and transfers of Securities as herein provided.
Subject to the limitations applicable to Global Securities, upon
surrender for registration of transfer of any Security at an office or agency of
the Issuer designated pursuant to Section 1002 for such purpose, the Issuer
shall execute, and the Trustee shall authenticate and make available for
delivery, in the name of the designated transferee or transferees, one or more
new Securities of any authorized denominations, of a like aggregate principal
amount and tenor, each such new Security having endorsed thereon the Company
Guarantee executed by the Company.
At the option of the Holder, Securities (except Global Securities) may
be exchanged for other Securities of any authorized denominations, of a like
aggregate principal amount and tenor, each such new Security having endorsed
thereon the Company Guarantee executed by the Company, upon surrender of the
Securities to be exchanged at such office or agency. Whenever any Securities are
so surrendered for exchange, the Issuer shall execute, and the Trustee shall
authenticate and make available for delivery, the Securities having endorsed
thereon the Company Guarantees executed by the Company which the Holder making
the exchange is entitled to receive.
All Securities and the Company Guarantees endorsed thereon issued upon
any registration of transfer or exchange of Securities shall be the valid
obligations of the Issuer and the Company, evidencing the same Debt, and
entitled to the same benefits under this Indenture, as the Securities and
Company Guarantees endorsed thereon, respectively, surrendered upon such
registration of transfer or exchange.
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Every Security presented or surrendered for registration of transfer
or for exchange shall (if so required by Issuer or the Trustee) be duly
endorsed, or be accompanied by a written instrument of transfer in form
satisfactory to the Issuer and the Security Registrar duly executed, by the
Holder thereof or his attorney duly authorized in writing.
No service charge shall be made for any registration of transfer or
exchange of Securities, but the Issuer may require payment of a sum sufficient
to cover any tax or other governmental charge that may be imposed in connection
with any registration of transfer or exchange of Securities, other than
exchanges pursuant to Sections 303, 304, 305, 306 or 906 not involving any
transfer.
The Security Registrar is not required to transfer or exchange any
Security selected for redemption or any Security for a period of 15 days before
the mailing of a notice of redemption.
Except as provided in the preceding paragraph, any Security
authenticated and delivered upon registration of transfer of, or in exchange
for, or in lieu of, any Global Security, whether pursuant to this Section,
Sections 304, 305, 306 and 906 or otherwise, shall also be a Global Security and
bear the legend specified in Exhibits A and B.
Section 307. Mutilated, Destroyed, Lost and Stolen Securities.
If (a) any mutilated Security is surrendered to the Trustee, or (b)
the Issuer, the Company and the Trustee receive evidence to their satisfaction
of the destruction, loss or theft of any Security, and there is delivered to the
Issuer, the Company and the Trustee, such security or indemnity, in each case,
as may be required by them to save each of them harmless, then, in the absence
of actual notice to the Issuer, the Company or the Trustee that such Security
has been acquired by a bona fide purchaser, the Issuer shall execute, and upon a
Issuer Request the Trustee shall authenticate and make available for delivery,
in exchange for any such mutilated Security or in lieu of any such destroyed,
lost or stolen Security, a replacement Security of like tenor and principal
amount, bearing a number not contemporaneously outstanding.
In case any such mutilated, destroyed, lost or stolen Security has
become or is about to become due and payable, the Issuer in its discretion may,
instead of issuing a replacement Security, pay such Security.
Upon the issuance of any replacement Securities under this Section,
the Issuer may require the payment of a sum sufficient to pay all documentary,
stamp or similar issue or transfer taxes or other governmental charges that may
be imposed in relation thereto and any other expenses (including the fees and
expenses of the Trustee) connected therewith.
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Every replacement Security issued pursuant to this Section in lieu of
any destroyed, lost or stolen Security shall constitute an original additional
contractual obligation of the Issuer and the Company, whether or not the
destroyed, lost or stolen Security shall be at any time enforceable by anyone,
and shall be entitled to all benefits of this Indenture equally and
proportionately with any and all other Securities duly issued hereunder.
The provisions of this Section are exclusive and shall preclude (to
the extent lawful) all other rights and remedies with respect to the replacement
or payment of mutilated, destroyed, lost or stolen Securities.
Section 308. Payment of Interest; Interest Rights Preserved.
Interest on any Security which is payable, and is punctually paid or
duly provided for, on the Stated Maturity of such interest shall be paid to the
Person in whose name the Security (or any Predecessor Securities) is registered
at the close of business on the Regular Record Date for such interest payment
date.
Any interest on any Security which is payable, but is not punctually
paid or duly provided for, on the Stated Maturity of such interest, and interest
on such defaulted interest at the then applicable interest rate borne by the
Securities, to the extent lawful (such defaulted interest and interest thereon
herein collectively called "Defaulted Interest") shall forthwith cease to be
payable to the Holder on the Regular Record Date; and such Defaulted Interest
may be paid by the Issuer, at its election in each case, as provided in
subsection (a) or (b) below:
(a) The Issuer may elect to make payment of any Defaulted
Interest to the Persons in whose names the Securities (or any relevant
Predecessor Securities) are registered at the close of business on a
Special Record Date for the payment of such Defaulted Interest, which
shall be fixed in the following manner. The Issuer shall notify the
Trustee in writing of the amount of Defaulted Interest proposed to be
paid on each Security and the date (not less than 30 days after such
notice) of the proposed payment (the "Special Payment Date"), and at
the same time the Issuer shall deposit with the Trustee an amount of
money equal to the aggregate amount proposed to be paid in respect of
such Defaulted Interest or shall make arrangements satisfactory to the
Trustee for such deposit prior to the Special Payment Date, such money
when deposited to be held in trust for the benefit of the Persons
entitled to such Defaulted Interest as in this subsection provided.
Thereupon the Trustee shall fix a date (the "Special Record Date") for
the payment of such Defaulted Interest which shall be not more than 15
days and not less than 10 days prior to the date of the Special
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Payment Date and not less than 10 days after the receipt by the
Trustee of the notice of the proposed payment. The Trustee shall
promptly notify the Issuer in writing of such Special Record Date. In
the name and at the expense of the Issuer, the Trustee shall cause
notice of the proposed payment of such Defaulted Interest and the
Special Record Date therefor to be mailed, first-class postage
prepaid, to each Holder at his address as it appears in the Security
Register, not less than 10 days prior to such Special Record Date.
Notice of the proposed payment of such Defaulted Interest and the
Special Record Date and Special Payment Date therefor having been so
mailed, such Defaulted Interest shall be paid to the Persons in whose
names the Securities are registered on such Special Record Date and
shall no longer be payable pursuant to the following subsection (b).
(b) The Issuer may make payment of any Defaulted Interest in any
other lawful manner not inconsistent with the requirements of any
securities exchange on which the Securities may be listed, and upon
such notice as may be required by such exchange, if, after written
notice given by the Issuer to the Trustee of the proposed payment
pursuant to this subsection, such payment shall be deemed practicable
by the Trustee.
Subject to the foregoing provisions of this Section each Security
delivered under this Indenture upon registration of transfer of or in exchange
for or in lieu of any other Security shall carry the rights to interest accrued
and unpaid, and to accrue, which were carried by such other Security.
Section 309. CUSIP Numbers.
The Issuer in issuing the Securities may use "CUSIP" numbers (if then
generally in use), and the Issuer, or the Trustee on behalf of the Issuer, shall
use CUSIP numbers in notices of exchange or redemption as a convenience to
Holders; provided, however, that any such notice shall state that no
representation is made as to the correctness of such numbers either as printed
on the Securities or as contained in any notice of exchange or redemption and
that reliance may be placed only on the other identification numbers printed on
the Securities; provided further, however, that failure to use CUSIP numbers in
any notice of exchange or redemption shall not affect the validity or
sufficiency of such notice. The Issuer shall promptly inform the Trustee of any
change in the CUSIP numbers.
Section 310. Persons Deemed Owners.
Prior to due presentment of a Security for registration of transfer,
the Issuer, the Trustee and any agent of the Company, the Issuer or the Trustee
may treat the Person
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in whose name such Security is registered as the owner thereof, whether or not
such Security may be overdue, for the purpose of making payments and for all
other purposes whatsoever, and neither the Issuer, the Company, the Trustee nor
any agent of the Issuer, the Company or the Trustee shall be affected by notice
to the contrary.
No holder of any beneficial interest in any Global Security held on
its behalf by a Depositary shall have any rights under this Indenture with
respect to such Global Security, and such Depositary may be treated by the
Issuer, Company, the Trustee, and any agent of the Issuer, Company or the
Trustee as the owner of such Global Security for all purposes whatsoever. None
of the Issuer, Company, the Trustee nor any agent of the Issuer, Company or the
Trustee will have any responsibility or liability for any aspect of the records
relating to or payments made on account of beneficial ownership interests of a
Global Security or for maintaining, supervising or reviewing any records
relating to such beneficial ownership interests.
Section 311. Cancellation.
All Securities surrendered for payment, purchase, registration of
transfer or exchange shall be delivered to the Trustee and, if not already
cancelled, shall be promptly cancelled by it. The Issuer and the Company may at
any time deliver to the Trustee for cancellation any Securities previously
authenticated and delivered hereunder which the Issuer or the Company may have
acquired in any manner whatsoever, and all Securities so delivered shall be
promptly cancelled by the Trustee. No Securities shall be authenticated in lieu
of or in exchange for any Securities cancelled as provided in this Section,
except as expressly permitted by this Indenture. All cancelled Securities held
by the Trustee shall be delivered to the Issuer. The Trustee shall provide the
Issuer a list of all Securities that have been cancelled from time to time as
requested by the Issuer.
Section 312. Computation of Interest.
Interest on the Securities shall be computed on the basis of a 360-day
year comprised of twelve 30-day months.
ARTICLE FOUR
SATISFACTION AND DISCHARGE
Section 401. Satisfaction and Discharge of Indenture.
This Indenture shall be discharged and shall cease to be of further
effect (except as to (a) the surviving rights of registration of transfer or
exchange of Securities, as expressly provided for herein and (b) the right to
receive Additional Amounts) as to all Outstanding Securities hereunder, and the
Trustee, upon Issuer Request and at the
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expense of the Issuer, shall execute proper instruments acknowledging
satisfaction and discharge of this Indenture, when
(a) either
(1) all the Securities theretofore authenticated and
delivered (other than (i) lost, stolen or destroyed Securities which have
been replaced or paid as provided in Section 307 or (ii) all Securities for
whose payment United States dollars have theretofore been deposited in
trust or segregated and held in trust by the Issuer and thereafter repaid
to the Issuer or discharged from such trust, as provided in Section 1003)
have been delivered to the Trustee for cancellation; or
(2) all such Securities not theretofore delivered to the
Trustee canceled or for cancellation (x) have become due and payable, or
(y) will become due and payable at their Stated Maturity within one year or
(z) are 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 Issuer, or the Issuer in
the case of (x), (y) and (z) above, has irrevocably deposited or caused to
be deposited with the Trustee as trust funds in trust an amount in United
States dollars sufficient to pay and discharge the entire Debt on such
Securities not theretofore delivered to the Trustee canceled or for
cancellation, including the principal of, and accrued interest on (and, if
applicable, the Tax Redemption Price and Additional Amounts with respect
to), such Securities at such Maturity or Stated Maturity or Tax Redemption
Date, as the case may be;
(b) the Issuer or the Company has paid or caused to be paid all
other sums payable hereunder by the Issuer and the Company with respect to
such Securities; and
(c) the Issuer has delivered to the Trustee an Officers'
Certificate and an Opinion of Independent Counsel, in form and substance
reasonably satisfactory to the Trustee, each stating that (i) all
conditions precedent herein relating to the satisfaction and discharge
hereof have been complied with, and (ii) such satisfaction and discharge
will not result in a breach or violation of, or constitute a default under,
this Indenture or any other material agreement or instrument to which the
Issuer, the Company or any Subsidiary is a party or by which the Issuer,
the Company or any Subsidiary is bound.
Upon compliance by the Issuer with this Section 401, and if the Issuer
has paid or caused to be paid all sums payable under this Indenture, this
Indenture and any
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Company Guarantees issued hereunder shall cease to be of any effect (except as
otherwise provided herein).
Notwithstanding the satisfaction and discharge hereof, the obligations
of the Issuer to the Trustee under Section 606 and, if United States dollars
shall have been deposited with the Trustee pursuant to subclause (2) of
subsection (a) of this Section 401, the obligations of the Trustee under Section
402 and the last paragraph of Section 1003 shall survive.
Section 402. Application of Trust Money.
Subject to the provisions of the last paragraph of Section 1003, all
United States dollars deposited with the Trustee pursuant to Section 401 shall
be held in trust and applied by it, in accordance with the provisions of the
Securities and this Indenture, to the payment, either directly or through any
Paying Agent (including the Issuer acting as its own Paying Agent) as the
Trustee may determine, to the Persons entitled thereto, of the principal of, and
interest on, the Securities for whose payment such United States dollars have
been deposited with the Trustee.
ARTICLE FIVE
REMEDIES
Section 501. Events of Default.
"Event of Default", wherever used herein, means any one of the
following events (whatever the reason for such Event of Default and whether it
shall be voluntary or involuntary or be effected by operation of law or pursuant
to any judgment, decree or order of any court or any order, rule or regulation
of any administrative or governmental body):
(a) default for 30 days in the payment of any
interest installment on the Securities when due and payable;
(b) default in the payment of the principal of,
or Tax Redemption Price or Additional Amounts in respect of,
any Security when due and payable;
(c) default for 60 days, after written notice has been given, by
certified mail, (i) to the Issuer and the Company by the Trustee, or (ii)
to the Issuer, the Company and the Trustee by the Holders of not less than
25% in aggregate principal amount of the Outstanding Securities (which
notice shall specify that it is a "notice of default" and shall demand that
such a default be remedied) in the performance of any covenant of the
Issuer or the Company in this
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Indenture (other than a default in the performance, or breach, of a
covenant or agreement which is specifically dealt with in clauses
(a) or (b) of this Section 501);
(d) default resulting in acceleration of maturity of any Debt
(other than the Securities) of the Company, the Issuer or any material
Subsidiary of the Company existing on the date of this Indenture or any
material Subsidiary of the Issuer in an amount aggregating in excess of
$20,000,000, if such acceleration has not been rescinded or annulled within
30 days after notice to the Issuer and the Company by the Trustee or to the
Issuer, the Company and the Trustee by the Holders of not less than 25% in
aggregate principal amount of the outstanding Securities at any one time;
(e) the rendering of a final judgment or judgments (not subject
to appeal) against the Issuer, the Company or any material Subsidiary of
the Company existing on the date of this Indenture or any material
Subsidiary of the Issuer in an aggregate amount in excess of $50,000,000,
which remains unstayed, undischarged or unbonded for a period of 60 days
thereafter;
(f) there shall have been the entry by a court of competent
jurisdiction of (i) a decree or order for relief in respect of the Issuer
or the Company or any material Subsidiary of the Company existing on the
date of this Indenture or any material Subsidiary of the Issuer in an
involuntary case or proceeding under any applicable Bankruptcy Law, or (ii)
a decree or order adjudging the Issuer or the Company or any material
Subsidiary of the Company existing on the date of this Indenture or any
material Subsidiary of the Issuer bankrupt or insolvent, or ordering
reorganization, arrangement, adjustment or composition of or in respect of
the Issuer or the Company or any material Subsidiary of the Company
existing on the date of this Indenture or any material Subsidiary of the
Issuer under any applicable federal or state law, or appointing a
custodian, receiver, liquidator, assignee, trustee or sequestrator (or
other similar official) of the Issuer or the Company or any material
Subsidiary of the Company existing on the date of this Indenture or any
material Subsidiary of the Issuer or of any substantial part of their
respective properties, or ordering the winding up or liquidation of their
respective affairs, and any such decree or order for relief shall continue
to be in effect, or any such other decree or order shall be unstayed and in
effect, for a period of 75 consecutive days; or
(g) (i) the Issuer or the Company or any material Subsidiary of
the Company existing on the date of this Indenture or any material
Subsidiary of the Issuer commences a voluntary case or proceeding under any
applicable Bankruptcy Law or any other case or proceeding to be adjudicated
bankrupt or insolvent, (ii) the Issuer or the Company or any material
Subsidiary of the
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Company existing on the date of this Indenture or any material
Subsidiary of the Issuer consents in writing to the entry of a
decree or order for relief against the Issuer or the Company or such
material Subsidiary of the Company existing on the date of this Indenture
or any material Subsidiary of the Issuer in an involuntary case or
proceeding under any applicable Bankruptcy Law or to the commencement of
any bankruptcy or insolvency case or proceeding against it, (iii) the
Issuer or the Company or any material Subsidiary of the Company existing on
the date of this Indenture or any material Subsidiary of the Issuer files a
petition or answer or consent seeking reorganization or relief under any
applicable Bankruptcy Law, (iv) the Issuer or the Company or any material
Subsidiary of the Company existing on the date of this Indenture or any
material Subsidiary of the Issuer (A) consents to the filing of such
petition or the appointment of, or taking possession by, a custodian,
receiver, liquidator, assignee, trustee, sequestrator or similar official
of the Issuer or the Company or such material Subsidiary of the Company
existing on the date of this Indenture or any material Subsidiary of the
Issuer or of any substantial part of their respective properties, (B) makes
an assignment for the benefit of creditors, or (C) admits in writing its
inability to pay its debts generally as they become due, or (v) the Issuer
or the Company or any material Subsidiary of the Company existing on the
date of this Indenture or any material Subsidiary of the Issuer takes any
corporate action in furtherance of any such actions in this clause (g).
Section 502. Acceleration of Maturity; Rescission and
Annulment.
If an Event of Default (other than an Event of Default specified in
Sections 501(f) and (g)) shall occur and be continuing, then and in every such
case the Trustee or the Holders of not less than 25% in aggregate principal
amount of the Securities then Outstanding may, and the Trustee at the request of
such Holders shall, declare all unpaid principal of, and accrued interest on
(and, if applicable, the Tax Redemption Price or Additional Amounts in respect
of), all Securities then Outstanding, to be due and payable immediately, by a
notice in writing to the Issuer (and to the Trustee if given by the Holders of
the Securities) specifying the relevant Event of Default and that it is a
"notice of acceleration", and upon any such declaration, such principal and
interest shall become immediately due and payable. If an Event of Default
specified in Section 501(f) or 501(g) occurs and is continuing, then all the
Securities shall ipso facto become and be due and payable immediately in an
amount equal to the principal amount of the Securities together with accrued and
unpaid interest, if any, to the date the Securities become due and payable,
without any declaration or other act on the part of the Trustee or any Holder.
Thereupon, the Trustee may, at his or her discretion, proceed to protect and
enforce the rights of the Holders of the Securities by appropriate judicial
proceedings.
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After such declaration of acceleration with respect to the Securities
has been made, but before a judgment or decree for payment of the money due has
been obtained by the Trustee as hereinafter in this Article provided, the
Holders of a majority in aggregate principal amount of the Securities
Outstanding by written notice to the Issuer and the Trustee, may rescind and
annul such declaration and its consequences if:
(a) the Issuer has paid or deposited with the
Trustee a sum sufficient to pay
(i) all sums paid or advanced by the Trustee under Section
607 and the reasonable compensation, expenses, disbursements and
advances of the Trustee, its agents and counsel,
(ii) all overdue interest on all Outstanding
Securities,
(iii) the principal of any Outstanding Securities which have
become due otherwise than by such declaration of acceleration and
interest thereon at the rate borne by the Securities, and
(iv) to the extent that payment of such interest is lawful,
interest upon overdue interest at the rate borne by the Securities;
and
(b) all Events of Default, other than the non-payment of
principal of, or interest on (and, if applicable, the Tax Redemption Price
or Additional Amounts in respect of), the Securities which have become due
solely by such declaration of acceleration, have been cured or waived as
provided in Section 513.
No such rescission shall affect any subsequent Default or impair any right
consequent thereon.
Section 503. Collection of Debt and Suits for Enforcement
by Trustee.
The Issuer and the Company covenant that if:
(a) default is made in the payment of any interest on any
Security when such interest becomes due and payable and such default
continues for a period of 30 days, or
(b) default is made in the payment of the
principal of any Security at the Stated Maturity thereof,
then the Issuer and the Company will, upon demand of the Trustee, pay to the
Trustee, for the benefit of the Holders of such Securities, the whole amount
then due and payable on
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such Securities for principal and interest, with interest upon the overdue
principal and, to the extent that payment of such interest shall be legally
enforceable, upon overdue installments of interest, at the rate borne by the
Securities; and, in addition thereto, 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.
If the Issuer or the Company, as the case may be, fails to pay such
amounts forthwith upon such demand, the Trustee, in its own name and as trustee
of an express trust, may institute a judicial proceeding for the collection of
the sums so due and unpaid and may prosecute such proceeding to judgment or
final decree, and may enforce the same against the Issuer or the Company or any
other obligor upon the Securities and collect the moneys adjudged or decreed to
be payable in the manner provided by law out of the property of the Issuer, the
Company or any other obligor upon the Securities, wherever situated.
If an Event of Default occurs and is continuing, the Trustee may in
its discretion proceed to protect and enforce its rights and the rights of the
Holders under this Indenture or the Company Guarantees by such appropriate
private or judicial proceedings as the Trustee shall deem most effectual to
protect and enforce such rights, including, without limitation, seeking recourse
against the Company pursuant to the terms of the Company Guarantees, whether for
the specific enforcement of any covenant or agreement in this Indenture or in
aid of the exercise of any power granted herein or therein, or to enforce any
other proper remedy, subject, however, to Section 512. No recovery of any such
judgment upon any property of the Issuer or the Company shall affect or impair
any rights, powers or remedies of the Trustee or the Holders.
Section 504. Trustee May File Proofs of Claim.
In case of the pendency of any receivership, insolvency, liquidation,
bankruptcy, reorganization, arrangement, adjustment, composition or other
judicial proceeding relative to the Issuer or any other obligor, including the
Company, upon the Securities or the property of the Issuer or of such other
obligor or their creditors, the Trustee (irrespective of whether the principal
of, Tax Redemption Price, if any, or Additional Amounts, if any, of the
Securities shall then be due and payable as therein expressed or by declaration
or otherwise and irrespective of whether the Trustee shall have made any demand
on the Issuer for the payment of any such overdue amounts) shall be entitled and
empowered, by intervention in such proceeding or otherwise:
(a) to file and prove a claim for the whole amount of principal,
Tax Redemption Price if any, or Additional Amounts, if any, and interest
owing and unpaid in respect of the Securities and to file such other papers
or documents
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as may be necessary or advisable in order to have the claims
of the Trustee (including any claim for the reasonable compensation,
expenses, disbursements and advances of the Trustee, its agents and
counsel) and of the Holders allowed in such judicial proceeding, and
(b) to collect and receive moneys or other
property payable or deliverable on any such claims and to
distribute the same; and
any custodian, receiver, assignee, trustee, liquidator, sequestrator or similar
official 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 the
Trustee any amount due 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 607.
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 505. Trustee May Enforce Claims without Possession of Securities.
All rights of action and claims under this Indenture, the Securities
or the Company Guarantees may be prosecuted and enforced by the Trustee without
the possession of any of the Securities or the production thereof in any
proceeding relating thereto, and any such proceeding instituted by the Trustee
shall be brought in its own name and as trustee of an express trust, and any
recovery of judgment shall, after provision for the payment of the reasonable
compensation, expenses, disbursements and advances of the Trustee, its agents
and counsel, be for the ratable benefit of the Holders of the Securities in
respect of which such judgment has been recovered.
Section 506. Application of Money Collected.
Any money collected by the Trustee pursuant to this Article or
otherwise on behalf of the Holders or the Trustee pursuant to this Article or
through any proceeding or any arrangement or restructuring in anticipation or in
lieu of any proceeding contemplated by this Article shall be applied, subject to
applicable law, in the following order, at the date or dates fixed by the
Trustee and, in case of the distribution of such money on account of principal
or interest, upon presentation of the Securities and the notation thereon of the
payment if only partially paid and upon surrender thereof if fully paid:
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FIRST: To the payment of all amounts due the
Trustee under Section 607;
SECOND: To the payment of the amounts then due and unpaid upon
the Securities for principal, Tax Redemption Price, if any, Additional
Amounts, if any, and interest, in respect of which or for the benefit of
which such money has been collected, ratably, without preference or
priority of any kind, according to the amounts due and payable on such
Securities for principal and interest; and
THIRD: The balance, if any, to the Person or Persons entitled
thereto, including the Issuer and the Company, provided that all sums due
and owing to the Holders and the Trustee have been paid in full as required
by this Indenture.
Section 507. Limitation on Suits.
No Holder of any Securities shall have any right to institute any
proceeding, judicial or otherwise, with respect to this Indenture or the
Securities, or for the appointment of a receiver or trustee, or for any other
remedy hereunder, unless:
(a) such Holder has previously given written
notice to the Trustee of a continuing Event of Default;
(b) the Holders of not less than 25% in principal amount of the
then Outstanding Securities shall have made written request to the Trustee
to institute proceedings in respect of such Event of Default in its own
name as trustee hereunder;
(c) such Holder or Holders have offered to the Trustee reasonable
indemnity against the costs, expenses and liabilities to be incurred in
compliance with such request;
(d) the Trustee for 60 days after its receipt of such notice,
request and offer (and if requested, provision) of indemnity has failed to
institute any such proceeding; and
(e) no direction inconsistent with such written request has been
given to the Trustee during such 60-day period by the Holders of a majority
in principal amount of the Outstanding Securities;
it being understood and intended that no one or more Holders shall have any
right in any manner whatever by virtue of, or by availing of, any provision of
this Indenture, any
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Security or the Company Guarantees to affect, disturb or prejudice the rights of
any other Holders, or to obtain or to seek to obtain priority or preference over
any other Holders or to enforce any right under this Indenture, any Security or
the Company Guarantees, except in the manner provided in this Indenture and for
the equal and ratable benefit of all the Holders.
Section 508. Unconditional Right of Holders to Receive
Principal and Interest.
Notwithstanding any other provision in this Indenture, the Holder of
any Security shall have the right based on the terms stated herein, which is
absolute and unconditional, to receive payment of the principal of and (subject
to Section 308) interest on, such Security on the respective Stated Maturities
expressed in such Security and to institute suit for the enforcement of any such
payment, and such rights shall not be impaired without the consent of such
Holder.
Section 509. Restoration of Rights and Remedies.
If the Trustee or any Holder has instituted any proceeding to enforce
any right or remedy under this Indenture or the Company Guarantees and such
proceeding has been discontinued or abandoned for any reason, or has been
determined adversely to the Trustee or to such Holder, then and in every such
case the Issuer, the Company, any other obligor on the Securities, the Trustee
and the Holders shall, subject to any determination in such proceeding, be
restored severally and respectively to their former positions hereunder, and
thereafter all rights and remedies of the Trustee and the Holders shall continue
as though no such proceeding had been instituted.
Section 510. Rights and Remedies Cumulative.
Except as otherwise provided with respect to the replacement of
mutilated, destroyed, lost or stolen Securities in the last paragraph of Section
307, no right or remedy herein conferred upon or reserved to the Trustee or to
the Holders is intended to be exclusive of any other right or remedy, and every
right and remedy shall, to the extent permitted by law, be cumulative and in
addition to every other right and remedy given hereunder or now or hereafter
existing at law or in equity or otherwise. The assertion or employment of any
right or remedy hereunder, or otherwise, shall not prevent the concurrent
assertion or employment of any other appropriate right or remedy.
Section 511. Delay or Omission Not Waiver.
No delay or omission of the Trustee or of any Holder of any Security
to exercise any right or remedy accruing upon any Event of Default shall impair
any such right or remedy or constitute a waiver of any such Event of Default or
an acquiescence therein. Every right and remedy given by this Article or by law
to the Trustee or to the
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Holders may be exercised from time to time, and as often as may be deemed
expedient, by the Trustee or by the Holders, as the case may be.
Section 512. Control by Holders.
The Holders of not less than a majority in aggregate principal amount
of the then Outstanding Securities shall have the right to direct the time,
method and place of conducting any proceeding for exercising any remedy
available to the Trustee, or exercising any trust or power conferred on the
Trustee, provided that:
(a) such direction shall not be (i) in conflict with any rule of
law or with this Indenture (including, without limitation, Section 507), or
(ii) be unduly prejudicial to Holders not joining therein; and
(b) subject to the provisions of Trust Indenture Act Section 315,
the Trustee may take any other action deemed proper by the Trustee which is
not inconsistent with such direction.
Section 513. Waiver of Past Defaults.
The Holders of not less than a majority in aggregate principal amount
of the Outstanding Securities may on behalf of the Holders of all Outstanding
Securities waive any past Default hereunder and its consequences, except a
Default:
(a) in the payment of the principal of, or
interest on, any Security; or
(b) in respect of a covenant or a provision hereof which under
Section 902 cannot be modified or amended without the consent of the Holder
of each Security Outstanding, affected by such modification or amendment.
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 514. Undertaking for Costs.
All parties to this Indenture agree, and each Holder of any Security
by his acceptance thereof shall be deemed to have agreed, that any court may in
its discretion require, 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,
suffered or omitted by it as Trustee, the filing by any party litigant in such
suit of an undertaking to pay the costs of such suit, and that such court may in
its discretion assess reasonable costs, including reasonable
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attorneys' fees and expenses, against any party litigant in such suit, having
due regard to the merits and good faith of the claims or defenses made by such
party litigant, but the provisions of this Section shall not apply to any suit
instituted by the Trustee, to any suit instituted by any Holder, or group of
Holders, holding in the aggregate more than 10% in principal amount of the
Outstanding Securities, or to any suit instituted by any Holder for the
enforcement of the payment of the principal of, or interest on, any Security on
or after the respective Stated Maturities expressed in such Security.
Section 515. Waiver of Stay, Extension or Usury Laws.
Each of the Issuer and the Company covenants (to the extent that it
may lawfully do so) that it 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 or other law wherever enacted, now or at any time
hereafter in force, which would prohibit or forgive the Issuer or the Company
from paying all or any portion of the principal of, or interest on, the
Securities contemplated herein or in the Securities or which may affect the
covenants or the performance of this Indenture; and each of the Issuer and the
Company (to the extent that it may lawfully do so) hereby expressly waives all
benefit or advantage of any such law, and covenants that it will not hinder,
delay or impede the execution of any power herein granted to the Trustee, but
will suffer and permit the execution of every such power as though no such law
had been enacted.
Section 516. Remedies Subject to Applicable Law.
All rights, remedies and powers provided by this Article Five may be
exercised only to the extent that the exercise thereof does not violate any
applicable provision of law in the premises, and all the provisions of this
Indenture are intended to be subject to all applicable mandatory provisions of
law which may be controlling in the premises and to be limited to the extent
necessary so that they will not render this Indenture invalid, unenforceable or
not entitled to be recorded, registered or filed under the provisions of any
applicable law.
ARTICLE SIX
THE TRUSTEE
Section 601. Duties of Trustee.
Subject to the provisions of the Trust Indenture Act Sections 315(a)
through 315(d):
(a) if a Default or an Event of Default has occurred and is
continuing, the Trustee shall exercise such of the rights and powers vested
in it by
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this Indenture and use the same degree of care and skill in its exercise
thereof as a prudent person would exercise or use under the circumstances
in the conduct of his own affairs.
(b) except during the continuance of a Default or
an Event of Default:
(1) the Trustee need perform only those duties as are
specifically set forth in this Indenture and no covenants or
obligations shall be implied in this Indenture that are adverse to the
Trustee; and
(2) in the absence of bad faith or willful misconduct 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, in the case of any such
certificates or opinions which by any provision hereof are
specifically required to be furnished to the Trustee, the Trustee
shall examine the certificates and opinions to determine whether or
not they conform to the requirements of this Indenture.
(c) the Trustee may not be relieved from liability for its own
negligent action, its own negligent failure to act, or its own willful
misconduct, except that:
(1) this subsection (c) does not limit the
effect of subsection (b) of this Section 601;
(2) the Trustee shall not be liable for any error of
judgment made in good faith by a Responsible Officer, unless it is
proved that the Trustee was negligent in ascertaining the pertinent
facts; and
(3) the Trustee shall not be liable with respect to any
action it takes or omits to take in good faith, in accordance with a
direction of the Holders of a majority in principal amount of
Outstanding Securities, relating to the time, method and place of
conducting any proceeding for any remedy available to the Trustee, or
exercising any trust or power confirmed upon the Trustee under this
Indenture.
(d) no provision of this Indenture shall require the Trustee to
expend or risk its own funds or otherwise incur any financial liability in
the performance of any of its duties hereunder or in the exercise of any of
its rights or powers if it shall have reasonable grounds for believing that
repayment of such
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funds or adequate indemnity against such risk or liability is not
reasonably assured to it.
(e) whether or not therein expressly so provided, every provision
of this Indenture that in any way relates to the Trustee is subject to
subsections (a), (b), (c) and (d) of this Section 601.
(f) the Trustee shall not be liable for interest on any money or
assets received by it except as the Trustee may agree in writing with the
Issuer. Assets held in trust by the Trustee need not be segregated from
other assets except to the extent required by law.
Section 602. Notice of Defaults.
Within 90 days after a Responsible Officer of the Trustee receives
notice of the occurrence of any Default, the Trustee shall transmit by mail to
all Holders and any other persons entitled to receive reports pursuant to
Section 313(c) of the Trust Indenture Act, as their names and addresses appear
in the Security Register, notice of such Default hereunder known to the Trustee,
unless such Default shall have been cured or waived; provided, however, that,
except in the case of a Default in the payment of the principal of, or interest
on, any Security, the Trustee shall be protected in withholding such notice if
and so long as a trust committee of Responsible Officers of the Trustee in good
faith determines that the withholding of such notice is in the interest of the
Holders.
Section 603. Certain Rights of Trustee.
Subject to the provisions of Section 601 and Trust Indenture Act
Sections 315(a) through 315(d):
(a) the Trustee may rely and shall be protected in acting or
refraining from acting upon any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent, order,
bond, debenture, note, other evidence of Debt or other paper or document
believed by it to be genuine and to have been signed or presented by the
proper party or parties;
(b) any request or direction of the Issuer mentioned herein shall
be sufficiently evidenced by a Issuer Request or Issuer Order and any
resolution of the Board of Directors may be sufficiently evidenced by a
Board Resolution;
(c) the Trustee may consult with counsel of its selection and any
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
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it hereunder in good faith and in reliance thereon in accordance with such
advice or Opinion of Counsel;
(d) the Trustee shall be under no obligation to exercise any of
the rights or powers vested in it by this Indenture at the request 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 therein or thereby in compliance with such request
or direction;
(e) the Trustee shall not be liable for any action taken or
omitted by it in good faith and believed by it to be authorized or within
the discretion, rights or powers conferred upon it by this Indenture other
than any liabilities arising out of the negligence, bad faith or willful
misconduct of the Trustee;
(f) the Trustee shall not be bound to make any investigation into
the facts or matters stated in any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent, order,
approval, appraisal, bond, debenture, note, coupon, security or other paper
or document unless requested in writing to do so by the Holders of not less
than a majority in aggregate principal amount of the Securities then
Outstanding; provided, however, that, if the payment within a reasonable
time to the Trustee of the costs, expenses or liabilities likely to be
incurred by it in the making of such investigation is, in the opinion of
the Trustee, not reasonably assured to the Trustee by the security afforded
to it by the terms of this Indenture, the Trustee may require reasonable
indemnity against such expenses or liabilities as a condition to
proceeding; the reasonable expenses of every such investigation shall be
paid by the Issuer or, if paid by the Trustee or any predecessor Trustee,
shall be repaid by the Issuer upon demand; provided further, however, the
Trustee in its discretion may make such further inquiry or investigation
into such facts or matters as it may deem 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 Issuer,
personally or by agent or attorney;
(g) whenever in the administration of this Indenture the Trustee
shall deem it desirable that a matter be proved or established prior to
taking, suffering or omitting any action hereunder, the Trustee (unless
other evidence be herein specifically prescribed) may, in the absence of
bad faith on its part, rely upon an Officers' Certificate; and
(h) the Trustee may execute any of the trusts or powers hereunder
or perform any duties hereunder either directly or by or through agents or
attorneys
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and the Trustee shall not be responsible for any misconduct or negligence
on the part of any agent or attorney appointed with due care by it
hereunder.
Section 604. Trustee Not Responsible for Recitals,
Dispositions of Securities or Application of Proceeds Thereof.
The recitals contained herein and in the Securities, except the
Trustee's certificates of authentication, shall be taken as the statements of
the Issuer or the Company, and the Trustee assumes no responsibility for their
correctness. The Trustee makes no representations as to the validity or
sufficiency of this Indenture or of the Securities, except that the Trustee
represents that it is duly authorized to execute and deliver this Indenture,
authenticate the Securities and perform its obligations hereunder and that the
statements made by it in any Statement of Eligibility on Form T-1 supplied to
the Issuer are true and accurate subject to the qualifications set forth
therein. The Trustee shall not be accountable for the use or application by the
Issuer of Securities or the proceeds thereof.
Section 605. Trustee and Agents May Hold Securities;
Collections; etc.
The Trustee, any Paying Agent, Security Registrar or any other agent
of the Issuer, in its individual or any other capacity, may become the owner or
pledgee of Securities, with the same rights it would have if it were not the
Trustee, Paying Agent, Security Registrar or such other agent and, subject to
Sections 608 and 613 and Trust Indenture Act Sections 310 and 311, may otherwise
deal with the Issuer and receive, collect, hold and retain collections from the
Issuer with the same rights it would have if it were not the Trustee, Paying
Agent, Security Registrar or such other agent.
Section 606. Money Held in Trust.
All moneys received by the Trustee shall, until used or applied as
herein provided, be held in trust for the purposes for which they were received,
but need not be segregated from other funds except to the extent required by
mandatory provisions of law. Except for funds or securities deposited with the
Trustee pursuant to Article Twelve, the Trustee shall be required to invest all
moneys received by the Trustee, until used or applied as herein provided, in
Cash Equivalents upon receipt of, and in accordance with, the specific written
directions of the Issuer.
Section 607. Compensation and Indemnification of Trustee
and Its Prior Claim.
The Issuer covenants and agrees to pay to the Trustee from time to
time, and the Trustee shall be entitled to, such compensation as the Issuer and
the Trustee shall, from time to time, agree in writing, for all services
rendered by it hereunder (which compensation shall not be limited by any
provision of law in regard to the compensation
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of a trustee of an express trust) and the Issuer covenants and agrees to pay or
reimburse the Trustee and each predecessor Trustee upon its request for all
reasonable expenses, disbursements and advances incurred or made by or on behalf
of the Trustee in accordance with any of the provisions of this Indenture
(including the reasonable compensation and the expenses and disbursements of its
counsel and of all agents and other persons not regularly in its employ) except
any such expense, disbursement or advance as may arise from its negligence, bad
faith or willful misconduct. The Issuer also covenants and agrees to indemnify
the Trustee and each predecessor Trustee for, and to hold it harmless against,
any and all claim, loss, damage, liability, tax, assessment or other
governmental charge (other than taxes applicable to the Trustee's compensation
hereunder) or expense incurred without negligence, bad faith or willful
misconduct on its part, arising out of or in connection with the acceptance or
administration of this Indenture or the trusts hereunder and its duties
hereunder, including enforcement of this Section and also including any
liability which the Trustee may incur as a result of failure to withhold, pay or
report any tax, assessment or other governmental charge, and the costs and
expenses of defending itself against or investigating any claim or liability in
connection with the exercise or performance of any of its powers or duties
hereunder. The obligations of the Issuer under this Section to compensate and
indemnify the Trustee and each predecessor Trustee and to pay or reimburse the
Trustee and each predecessor Trustee for reasonable expenses, disbursements and
advances shall constitute an additional obligation hereunder and shall survive
the satisfaction and discharge of this Indenture and the resignation or removal
of the Trustee and each predecessor Trustee.
The Trustee shall have a lien prior to the Securities as to all
property and funds held by it hereunder for any amount owing it or any
predecessor Trustee pursuant to this Section 607, except with respect to funds
held in trust for the benefit of the Holders of particular Securities.
When the Trustee incurs expenses or renders services in connection
with an Event of Default specified in Section 501(f) or Section 501(g), the
expenses (including the reasonable charges and expenses of its counsel) and the
compensation for the services are intended to constitute expenses of
administration under any applicable Federal or state bankruptcy, insolvency or
other similar law.
Section 608. Conflicting Interests.
The Trustee shall comply with the provisions of Section 310(b) of the
Trust Indenture Act.
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Section 609. Corporate Trustee Required; Eligibility.
There shall at all times be a Trustee hereunder which shall be a
corporation that is eligible to act as trustee under Trust Indenture Act Section
310(a)(5) and which shall have an office in The City of New York, a combined
capital and surplus of at least $50,000,000, to the extent there is an
institution eligible and willing to serve. If the Trustee does not have an
office in The City of New York, the Trustee shall appoint an agent in The City
of New York reasonably acceptable to the Issuer (which may be an Affiliate of
the Trustee) to conduct any activities which the Trustee may be required under
this Indenture to conduct in The City of New York. If the Trustee publishes
reports of condition at least annually, pursuant to law or to the requirements
of federal, state, territorial or District of Columbia supervising or examining
authority, then for the purposes of this Section, the combined capital and
surplus of the Trustee shall be deemed to be its combined capital and surplus as
set forth in its most recent report of condition so published. If at any time
the Trustee shall cease to be eligible in accordance with the provisions of this
Section, the Trustee shall resign immediately in the manner and with the effect
hereinafter specified in this Article.
Section 610. Resignation and Removal; Appointment of
Successor Trustee.
(a) No resignation or removal of the Trustee and no appointment of a
successor trustee pursuant to this Article shall become effective until the
acceptance of appointment by the successor trustee under Section 611.
(b) The Trustee, or any trustee or trustees hereafter appointed, may
at any time resign by giving written notice thereof to the Issuer. Upon
receiving such notice or resignation, the Issuer shall promptly appoint a
successor trustee by written instrument executed by authority of the Board of
Directors, a copy of which shall be delivered to the resigning Trustee and a
copy to the successor trustee. If an instrument of acceptance by a successor
trustee shall not have been delivered to the Trustee within 30 days after the
giving of such notice of resignation, the resigning Trustee may, or any Holder
who has been a bona fide Holder of a Security for at least six months may, on
behalf of himself and all others similarly situated, petition any court of
competent jurisdiction for the appointment of a successor trustee. Such court
may thereupon, after such notice, if any, as it may deem proper, appoint a
successor trustee.
(c) The Trustee may be removed at any time for any cause or for no
cause by an Act of the Holders of not less than a majority in aggregate
principal amount of the Outstanding Securities, delivered to the Trustee and to
the Issuer. If an instrument of acceptance by a successor trustee shall not have
been delivered to the Trustee within 30 days after the giving of such notice of
resignation, the resigning Trustee may, or any Holder who has been a bona fide
Holder of a Security for at least six months may, on
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behalf of himself and all others similarly situated, petition any court of
competent jurisdiction for the appointment of a successor trustee.
(d) If at any time:
(1) the Trustee shall fail to comply with the provisions of Trust
Indenture Act Section 310(b) after written request therefor by the Issuer
or by any Holder who has been a bona fide Holder of a Security for at least
six months,
(2) the Trustee shall cease to be eligible under Section 609 and
shall fail to resign after written request therefor by the Issuer or by any
Holder who has been a bona fide Holder of a Security for at least six
months, or
(3) the Trustee shall become incapable of acting or shall be
adjudged a bankrupt or insolvent, or a receiver of the Trustee or of its
property shall be appointed or any public officer shall take charge or
control of the Trustee or of its property or affairs for the purpose of
rehabilitation, conservation or liquidation,
then, in any case, (i) the Issuer by a Board Resolution may remove the Trustee,
or (ii) subject to Section 514, the Holder of any Security who has been a bona
fide Holder of a Security for at least six months may, on behalf of himself and
all others similarly situated, petition any court of competent jurisdiction for
the removal of the Trustee and the appointment of a successor trustee. Such
court may thereupon, after such notice, if any, as it may deem proper and
prescribe, remove the Trustee and appoint a successor trustee.
(e) If the Trustee shall resign, be removed or become incapable of
acting, or if a vacancy shall occur in the office of Trustee for any cause, the
Issuer, by a Board Resolution, shall promptly appoint a successor trustee and
shall comply with the applicable requirements of Section 611. If, within one
year after such resignation, removal or incapability, or the occurrence of such
vacancy, the Issuer has not appointed a successor Trustee, a successor trustee
shall be appointed by the Act of the Holders of a majority in principal amount
of the Outstanding Securities delivered to the Issuer and the retiring Trustee.
Such successor trustee so appointed shall forthwith upon its acceptance of such
appointment become the successor trustee and supersede the successor trustee
appointed by the Issuer. If no successor trustee shall have been so appointed by
the Issuer or the Holders of the Securities and accepted appointment in the
manner hereinafter provided, the Holder of any Security who has been a bona fide
Holder for at least six months may, subject to Section 514, on behalf of himself
and all others similarly situated, petition any court of competent jurisdiction
for the appointment of a successor trustee.
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(f) The Issuer shall give notice of each resignation and each removal
of the Trustee and each appointment of a successor trustee by mailing written
notice of such event by first-class mail, postage prepaid, to the Holders of
Securities as their names and addresses appear in the Security Register. Each
notice shall include the name of the successor trustee and the address of its
Corporate Trust Office or agent hereunder.
Section 611. Acceptance of Appointment by Successor.
Every successor trustee appointed hereunder shall execute, acknowledge
and deliver to the Issuer and to the retiring Trustee an instrument accepting
such appointment, and thereupon the resignation or removal of the retiring
Trustee shall become effective and such successor trustee, without any further
act, deed or conveyance, shall become vested with all the rights, powers, trusts
and duties of the retiring Trustee as if originally named as Trustee hereunder;
but, nevertheless, on the written request of the Issuer or the successor
trustee, upon payment of its charges pursuant to Section 607 then unpaid, such
retiring Trustee shall pay over to the successor trustee all moneys at the time
held by it hereunder and shall execute and deliver an instrument transferring to
such successor trustee all such rights, powers, duties and obligations. Upon
request of any such successor trustee, the Issuer shall execute any and all
instruments for more fully and certainly vesting in and confirming to such
successor trustee all such rights and powers.
No successor trustee with respect to the Securities shall accept
appointment as provided in this Section 611 unless at the time of such
acceptance such successor trustee shall be eligible to act as trustee under the
provisions of Trust Indenture Act Section 310(a) and this Article Six and shall
have a combined capital and surplus of at least $50,000,000 and have a Corporate
Trust Office or an agent selected in accordance with Section 609.
Upon acceptance of appointment by any successor trustee as provided in
this Section 611, the Issuer shall give notice thereof to the Holders of the
Securities, by mailing such notice to such Holders at their addresses as they
shall appear on the Security Register. If the acceptance of appointment is
substantially contemporaneous with the resignation, then the notice called for
by the preceding sentence may be combined with the notice called for by Section
610. If the Issuer fails to give such notice within 10 days after acceptance of
appointment by the successor trustee, the successor trustee shall cause such
notice to be given at the expense of the Issuer.
Section 612. Merger, Conversion, Consolidation or
Succession to Business.
Any corporation into which the Trustee may be merged or converted or
with which it may be consolidated, or any corporation resulting from any merger,
conversion or consolidation to which the Trustee shall be a party, or any
corporation
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succeeding to all or substantially all the corporate trust business of the
Trustee (including the trust created by this Indenture) shall be the successor
of the Trustee hereunder, provided such corporation shall be eligible under
Trust Indenture Act Section 310(a) and this Article Six and shall have a
combined capital and surplus of at least $50,000,000 and have a Corporate Trust
Office or an agent selected in accordance with Section 609, without the
execution or filing of any paper or any further act on the part of any of the
parties hereto.
In case at the time such successor to the Trustee shall succeed to the
trusts created by this Indenture any of the Securities shall have been
authenticated but not delivered, any such successor to the Trustee may adopt the
certificate of authentication of any predecessor Trustee and deliver such
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 trustee; and in all such cases such certificate 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; provided that the right to adopt
the certificate of authentication of any predecessor Trustee or to authenticate
Securities in the name of any predecessor Trustee shall apply only to its
successor or successors by merger, conversion or consolidation.
Section 613. Preferential Collection of Claims Against Issuer.
If and when the Trustee shall be or become a creditor of the Issuer
(or other obligor under the Securities), the Trustee shall be subject to the
provisions of the Trust Indenture Act regarding the collection of claims against
the Issuer (or any such other obligor). A Trustee who has resigned or been
removed shall be subject to the Trust Indenture Act Section 311(a) to the extent
indicated therein.
ARTICLE SEVEN
HOLDERS' LISTS AND REPORTS BY TRUSTEE AND ISSUER
Section 701. Issuer to Furnish Trustee Names and Addresses of Holders.
The Issuer will furnish or cause to be furnished to the Trustee:
(a) semiannually, not more than 10 days after each Regular Record
Date, a list, in such form as the Trustee may reasonably require, of the
names and addresses of the Holders as of such Regular Record Date; and
(b) at such other times as the Trustee may reasonably request in
writing, within 30 days after receipt by the Issuer of any such request, a
list of
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similar form and content to that in subsection (a) hereof as of a date not
more than 15 days prior to the time such list is furnished;
provided, however, that if and so long as the Trustee shall be the Security
Registrar, no such list need be furnished.
Section 702. Disclosure of Names and Addresses of Holders.
Holders may communicate pursuant to Trust Indenture Act Section 312(b)
with other Holders with respect to their rights under this Indenture or the
Securities, and the Trustee shall comply with Trust Indenture Act Section
312(b). The Issuer, the Company, Trustee, the Security Registrar and any other
Person shall have the protection of Trust Indenture Act Section 312(c). Further,
every Holder of Securities, by receiving and holding the same, agrees with the
Issuer, the Company and the Trustee that neither the Issuer nor the Trustee or
any agent of either of them shall be held accountable by reason of the
disclosure of any information as to the names and addresses of the Holders in
accordance with Trust Indenture Act Section 312, regardless of the source from
which such information was derived, and that the Trustee shall not be held
accountable by reason of mailing any material pursuant to a request made under
Trust Indenture Act Section 312.
Section 703. Reports by Trustee.
(a) Within 60 days after May 15 of each year commencing with the first
May 15 after the issuance of Securities, the Trustee, if so required under the
Trust Indenture Act, shall transmit by mail to all Holders, in the manner and to
the extent provided in Trust Indenture Act Section 313(c), a brief report dated
as of such May 15 in accordance with and with respect to the matters required by
Trust Indenture Act Section 313(a). The Trustee shall also transmit by mail to
all Holders, in the manner and to the extent provided in Trust Indenture Act
Section 313(c), a brief report in accordance with and with respect to the
matters required by Trust Indenture Act Section 313(b)(2).
(b) A copy of each report transmitted to Holders pursuant to this
Section 703 shall, at the time of such transmission, be mailed to the Issuer and
the Company and filed with each stock exchange, if any, upon which the
Securities are listed and also with the Commission. The Issuer will notify the
Trustee promptly if the Securities are listed on any stock exchange.
Section 704. Reports by Issuer and the Company.
The Issuer and the Company, as the case may be, shall:
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(a) file with the Trustee and the Commission, in accordance with
the rules and regulations prescribed from time to time by the Commission,
such additional information, documents and reports with respect to
compliance by the Issuer or the Company, as the case may be, with the
conditions and covenants of this Indenture as are required from time to
time by such rules and regulations (including such information, documents
and reports referred to in Trust Indenture Act Section 314(a));
(b) within 15 days after the filing thereof with the Trustee,
transmit by mail to all Holders in the manner and to the extent provided in
Trust Indenture Act Section 313(c), such summaries of any information,
documents and reports required to be filed by the Issuer or the Company, as
the case may be, pursuant to Section 1010 hereunder and subsections (a) and
(b) of this Section as are required by rules and regulations prescribed
from time to time by the Commission; and
(c) file with the Trustee and the Commission, and transmit to
Holders such other information, documents and other reports, and such
summaries thereof, as may be required pursuant to the Trust Indenture Act
at the times and in the manner provided pursuant to such Act; provided that
information, documents or reports required to be filed with the Commission
pursuant to Section 13 or Section 15(d) of the Exchange Act shall be filed
with the Trustee within 15 days after the same is so required to be filed
with the Commission.
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 Company's
compliance with any of its covenants hereunder (as to which the Trustee is
entitled to rely exclusively on Officers' Certificates).
ARTICLE EIGHT
CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE
Section 801. Issuer and Company May Consolidate, etc.,
Only on Certain Terms.
(a) The Issuer shall not, in a single transaction or through a series
of related transactions, consolidate with or merge with or into any other Person
or sell, assign, convey, transfer, lease or otherwise dispose of all or
substantially all of its properties and assets to any Person, unless at the time
and after giving effect thereto:
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(1) either (A) in the case of merger or consolidation, the Issuer
will be the surviving Person or (B) in the case of a merger or
consolidation where the Issuer is not the surviving Person and in the case
of a sale, assignment, conveyance, transfer, lease or other disposition,
the Person formed by such consolidation or into which the Issuer is merged
or the Person which acquires by sale, assignment, conveyance, transfer,
lease or disposition all or substantially all of the properties and assets
of the Issuer (the "Surviving Entity") will each be a corporation duly
organized and validly existing under the laws of the United States of
America, any state thereof or the District of Columbia and will expressly
assume, by a supplemental indenture, in a form satisfactory to the Trustee,
the due and punctual payment of the principal of and interest on (and, if
applicable, the Tax Redemption Price or Additional Amounts in respect of)
the Securities and the performance and observance of all the covenants and
conditions of the Indenture to be performed and observed by the Issuer, and
the Securities and this Indenture, as the case may be, will remain in full
force and effect as so supplemented;
(2) immediately before and immediately after giving effect to
such transaction on a pro forma basis, no Default or Event of Default will
have occurred and be continuing; and
(3) at the time of the transaction, the Issuer or the Surviving
Entity will have delivered, or caused to be delivered, to the Trustee, in
form and substance reasonably satisfactory to the Trustee, an Officers'
Certificate and an Opinion of Counsel, each to the effect that such
consolidation, merger, sale, assignment, conveyance, transfer, lease or
other disposition and the supplemental indenture in respect thereof comply
with this Indenture and that all conditions precedent herein provided for
relating to such transaction have been complied with. In delivering any
such Opinion of Counsel, counsel may rely as to factual matters on
certificates of officers of the Issuer.
(b) The Company shall not in a single transaction or through a series
of related transactions, consolidate with or merge with or into any other Person
or sell, assign, convey, transfer, lease or otherwise dispose of all or
substantially all of its properties and assets to any Person, unless at the time
and after giving effect thereto:
(1) either (A) in the case of merger of consolidation, the
Company will be the surviving Person or (B) in the case of a merger or
consolidation where the Company is not the surviving Person and in the case
of a sale, assignment, conveyance, transfer, lease or other disposition,
the Person formed by such consolidation or into which the Company is merged
or the Person or group of affiliated Persons which acquires by sale,
assignment, conveyance, transfer, lease or disposition all or substantially
all of the properties and assets of
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the Company (the "Surviving Guarantor Entity") will each be a corporation
duly organized and validly existing under the laws of the United States of
America, any state thereof or the District of Columbia and will expressly
assume, by a supplemental indenture, in a form satisfactory to the Trustee,
the Company Guarantees and the performance and observance of all the
covenants and conditions of the Indenture to be performed and observed by
the Company, and such Company Guarantees will remain in full force and
effect;
(2) immediately before and immediately after giving effect to
such transaction, on a pro forma basis, no Default or Event of Default
shall have occurred and be continuing; and
(3) at the time of the transaction the Company or the Surviving
Guarantor Entity will have delivered, or caused to be delivered, to the
Trustee, in form and substance reasonably satisfactory to the Trustee, an
Officers' Certificate and an Opinion of Counsel, each to the effect that
such consolidation, merger, sale, assignment, conveyance, transfer, lease
or other disposition and the supplemental indenture in respect thereof
comply with this Indenture and that all conditions precedent therein
provided for relating to such transaction have been complied with, and
thereafter all obligations of the predecessor shall terminate.
Section 802. Successor Substituted.
Upon any consolidation or merger, or any sale, assignment, conveyance,
transfer, lease or disposition of all or substantially all of the properties and
assets of the Issuer or the Company, if any, in accordance with Section 801, the
successor Person formed by such consolidation or into which the Issuer or the
Company, as the case may be, is merged or the successor Person or Persons to
which such sale, assignment, conveyance, transfer, lease or disposition is made
shall succeed to, and be substituted for, and may exercise every right and power
of, the Issuer or the Company, as the case may be, under this Indenture in the
Securities and/or the Company Guarantees, as the case may be, with the same
effect as if such successor had been named as the Issuer or the Company, as the
case may be, herein, in the Securities and/or in the Company Guarantees, as the
case may be. When a successor (other than a successor that is a direct or
indirect Subsidiary of the Company) assumes all the obligations of its
predecessor under this Indenture, the Securities or the Company Guarantees, as
the case may be, the predecessor shall be released from those obligations and
covenants hereof and the Securities. In addition, if the acquiring or successor
Person to or of the Issuer is not a
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direct or indirect Subsidiary of the Company, the obligations of the Company
under the Company Guarantees and this Indenture shall terminate and be of no
further force and effect and all references to the Company shall be deleted.
ARTICLE NINE
SUPPLEMENTAL INDENTURES
Section 901. Supplemental Indentures and Agreements
without Consent of Holders.
Without the consent of any Holders, the Issuer, the Company and any
other obligor upon the Securities when authorized by a Board Resolution, and the
Trustee, at any time and from time to time, may enter into one or more
indentures supplemental hereto or agreements or other instruments with respect
to the Company Guarantees, in form and substance satisfactory to the Trustee,
for any of the following purposes:
(a) to evidence the succession of another Person to the Issuer,
the Company or any other obligor upon the Securities, and the assumption by
any such successor of the covenants of the Issuer or the Company or obligor
herein and in the Securities or in the Company Guarantees in accordance
with Article Eight;
(b) to add to the covenants of the Issuer, the Company or any
other obligor upon the Securities for the benefit of the Holders, or to
surrender any right or power conferred upon the Issuer or the Company or
any other obligor upon the Securities, as applicable, herein, in the
Securities or in the Company Guarantees;
(c) to cure any ambiguity, or to correct or supplement any
provision herein or in any supplemental indenture, the Securities or the
Company Guarantees which may be defective or inconsistent with any other
provision herein or in any supplemental indenture, the Securities or the
Company Guarantees or to make any other provisions with respect to matters
or questions arising under this Indenture or any supplemental indenture,
the Securities or the Company Guarantees; provided that, in each case, such
provisions shall not materially adversely affect the interest of the
Holders;
(d) to comply with the requirements of the Commission in order to
effect or maintain the qualification of this Indenture under the Trust
Indenture Act, as contemplated by Section 905 or otherwise;
(e) provide for the assumption of the Issuer's or
the Company's obligations to the Holders of Securities as
contemplated under Article Eight;
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(f) to evidence and provide the acceptance of the
appointment of a successor trustee hereunder; or
(g) to mortgage, pledge, hypothecate or grant a security interest
in favor of the Trustee for the benefit of the Holders, as additional
security for the payment and performance of the Issuer's or the Company's
obligations hereunder, in any property or assets, including any of which
are required to be mortgaged, pledged or hypothecated, or in which a
security interest or other Lien is required to be granted to the Trustee
pursuant to this Indenture or otherwise.
Section 902. Supplemental Indentures and Agreements with Consent of
Holders.
Except as permitted by Section 901, with the consent of the Holders of
at least a majority in aggregate principal amount of the Outstanding Securities,
by Act of said Holders delivered to the Issuer, the Company and the Trustee, the
Issuer and the Company, when authorized by Board Resolutions, and the Trustee
may (1) enter into an indenture or indentures supplemental hereto in form and
substance satisfactory to the Trustee, for the purpose of adding any provisions
to or amending, modifying or changing in any manner or eliminating any of the
provisions of this Indenture, the Securities or the Company Guarantees
(including, but not limited to, for the purpose of modifying in any manner the
rights of the Holders under this Indenture, the Securities or the Company
Guarantees), or (2) waive compliance with any provision in this Indenture, the
Securities or the Company Guarantees (other than waivers of past Defaults
covered by Section 513 and waivers of covenants which are covered by Section
1012); provided, however, that no such supplemental indenture, agreement or
instrument shall, without the consent of not less than 90% in aggregate
principal amount of the Outstanding Securities affected thereby, release the
Company from its obligations under the Company Guarantees; provided, further,
however, that no such supplemental indenture, agreement or instrument shall,
without the consent of the Holder of each Outstanding Security affected thereby:
(a) change the Stated Maturity of the principal of, or any
installment of interest on, or any Additional Amounts due pursuant to
Section 301 with respect to, any such Security, or reduce the principal
amount thereof or the rate of interest thereon, or change the place or time
of payment where, or the coin or currency in which, the principal of any
Security or the 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;
(b) reduce the percentage in principal amount of the Outstanding
Securities, the consent of whose Holders is required for any such
supplemental indenture, or the consent of whose Holders is required for any
waiver or compliance with certain provisions of this Indenture;
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(c) reduce the Tax Redemption Price of any
Security;
(d) modify any of the provisions of this Section 902 or Section
513 or 1012, except to increase the percentage of such Outstanding
Securities required for any such actions or to provide that certain other
provisions of this Indenture cannot be modified or waived without the
consent of the Holder of each such Security affected thereby; or
(e) except as otherwise permitted under Article Eight, consent to
the assignment or transfer by the Issuer or the Company of any of its
rights and obligations hereunder.
Upon the written request of the Issuer and the Company accompanied by
copies of Board Resolutions authorizing the execution of any such supplemental
indenture and upon the filing with the Trustee of evidence of the consent of
Holders as aforesaid, the Trustee shall join with the Issuer and the Company in
the execution of such supplemental indenture.
It shall not be necessary for any Act of Holders under this Section
902 to approve the particular form of any proposed supplemental indenture or
agreement, but it shall be sufficient if such Act shall approve the substance
thereof.
Section 903. Execution of Supplemental Indentures and Agreements.
In executing, or accepting the additional trusts created by, any
supplemental indenture, agreement, instrument or waiver permitted by this
Article Nine or the modifications thereby of the trusts created by this
Indenture, the Trustee shall be entitled to receive, and (subject to the Trust
Indenture Act Sections 315(a) through 315(d) and Section 602) shall be fully
protected in relying upon, an Opinion of Counsel and an Officers' Certificate
stating that the execution of such supplemental indenture, agreement or
instrument is authorized or permitted by this Indenture. The Trustee may, but
shall not be obligated to, enter into any such supplemental indenture, agreement
or instrument which affects the Trustee's own rights, duties or immunities under
this Indenture or otherwise.
Section 904. Effect of Supplemental Indentures.
Upon the execution of any supplemental indenture under this Article,
this Indenture shall be modified in accordance therewith, and such supplemental
indenture shall form a part of this Indenture for all purposes; and every Holder
of Securities theretofore or thereafter authenticated and delivered hereunder
shall be bound thereby.
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Section 905. Conformity with Trust Indenture Act.
Every supplemental indenture executed pursuant to this Article Nine
shall conform to the requirements of the Trust Indenture Act as then in effect.
Section 906. Reference in Securities to Supplemental Indentures.
Securities authenticated and delivered after the execution of any
supplemental indenture pursuant to this Article Nine may, and shall if required
by the Trustee, bear a notation in form approved by the Trustee as to any matter
provided for in such supplemental indenture. If the Issuer shall so determine,
new Securities so modified as to conform, in the opinion of the Trustee and the
Board of Directors, to any such supplemental indenture may be prepared and
executed by the Issuer and the Company and authenticated and delivered by the
Trustee in exchange for Outstanding Securities.
Section 907. Notice of Supplemental Indentures.
Promptly after the execution by the Issuer, the Company and the
Trustee of any supplemental indenture pursuant to the provisions of Section 902,
the Issuer shall give notice thereof to the Holders of each Outstanding Security
affected, in the manner provided for in Section 106, setting forth in general
terms the substance of such supplemental indenture. Any failure of the Issuer to
mail such notice, or any defect therein, shall not, however, in any way impair
or affect the validity of any such supplemental indenture.
ARTICLE TEN
COVENANTS
Section 1001. Payment of Principal and Interest.
The Issuer shall duly and punctually pay the principal of, and
interest on, the Securities in accordance with the terms of the Securities and
this Indenture.
Section 1002. Maintenance of Office or Agency.
The Issuer shall maintain an office or agency where, subject to the
limitations applicable to Global Securities, Securities may be presented or
surrendered for payment. The Issuer also will maintain in The City of New York
an office or agency where, subject to the limitations applicable to Global
Securities, Securities may be surrendered for registration of transfer or
exchange and where notices and demands to or upon the Issuer or the Company in
respect of the Securities and this Indenture may be served. The Corporate Trust
Office of the Trustee shall be such office or agency of the
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Issuer, unless the Issuer shall designate and maintain some other office or
agency for one or more of such purposes. The Issuer will give prompt written
notice to the Trustee of the location and any change in the location of any such
offices or agencies. If at any time the Issuer shall fail to maintain any such
required offices or agencies, such presentations, surrenders, notices and
demands may be made or served at the office of the Trustee and the Issuer hereby
appoints the Trustee such agent as its agent to receive all such presentations,
surrenders, notices and demands.
The Issuer may from time to time designate one or more other offices
or agencies (in or outside of The City of New York) where, subject to the
limitations applicable to Global Securities, the Securities may be presented or
surrendered for any or all such purposes, and may from time to time rescind such
designation. The Issuer will give prompt written notice to the Trustee of any
such designation or rescission and any change in the location of any such office
or agency.
The Trustee shall initially act as Paying Agent for the Securities.
Section 1003. Money for Security Payments to Be Held in Trust.
If the Issuer or any of its Affiliates shall at any time act as Paying
Agent, it will, on or before each due date of the principal of, or interest on,
any of the Securities, segregate and hold in trust for the benefit of the
Holders entitled thereto a sum sufficient to pay the principal or interest so
becoming due until such sums shall be paid to such Persons or otherwise disposed
of as herein provided, and will promptly notify the Trustee of its action or
failure so to act.
If the Issuer or any of its Affiliates is not acting as Paying Agent,
the Issuer will, on or before each due date of the principal of, or interest on,
any of the Securities, deposit with a Paying Agent a sum in same day funds
sufficient to pay the principal or interest so becoming due, such sum to be held
in trust for the benefit of the Persons entitled to such principal or interest,
and (unless such Paying Agent is the Trustee) the Issuer will promptly notify
the Trustee of such action or any failure so to act.
If the Issuer is not acting as Paying Agent, the Issuer will cause
each Paying Agent other than the Trustee to execute and deliver to the Trustee
an instrument in which such Paying Agent shall agree with the Trustee, subject
to the provisions of this Section, that such Paying Agent will:
(a) hold all sums held by it for the payment of the principal of,
or interest on, the Securities in trust for the benefit of the Persons
entitled thereto until such sums shall be paid to such Persons or otherwise
disposed of as herein provided;
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(b) give the Trustee notice of any Default by the Issuer or the
Company (or any other obligor upon the Securities) in the making of any
payment of principal or interest on the Securities;
(c) at any time during the continuance of any such Default, upon
the written request of the Trustee, forthwith pay to the Trustee all sums
so held in trust by such Paying Agent; and
(d) acknowledge, accept and agree to comply in all aspects with
the provisions of this Indenture relating to the duties, rights and
disabilities of such Paying Agent.
The Issuer may at any time, for the purpose of obtaining the
satisfaction and discharge of this Indenture or for any other purpose, pay, or
by Issuer Order direct any Paying Agent to pay, to the Trustee all sums held in
trust by the Issuer or such Paying Agent, such sums to be held by the Trustee
upon the same trusts as those upon which such sums were held by the Issuer or
such Paying Agent; and, upon such payment by any Paying Agent to the Trustee,
such Paying Agent shall be released from all further liability with respect to
such money.
Any money deposited with the Trustee or any Paying Agent, or then held
by the Issuer, in trust for the payment of the principal of, or interest on, any
Security and remaining unclaimed for two years after such principal or interest
has become due and payable shall promptly be paid to the Issuer on Issuer
Request, or (if then held by the Issuer) shall be discharged from such trust;
and the Holder of such Security shall thereafter, as an unsecured general
creditor, look only to the Issuer for payment thereof, and all liability of the
Trustee or such Paying Agent with respect to such trust money, and all liability
of the Issuer as trustee thereof, shall thereupon cease; provided, however, that
the Trustee or such Paying Agent, before being required to make any such
repayment, may at the expense of the Issuer cause to be published once, in the
New York Times and The Wall Street Journal (national edition), and mail to each
such Holder, notice that such money remains unclaimed and that, after a date
specified therein, which shall not be less than 30 days from the date of such
notification, publication and mailing, any unclaimed balance of such money then
remaining will promptly be repaid to the Issuer.
Section 1004. Corporate Existence.
Subject to Article Eight, the Issuer and the Company shall do or cause
to be done all things necessary to preserve and keep in full force and effect
the corporate existence and related rights and franchises (charter and
statutory) of the Company, the Issuer and the Issuer's Subsidiaries; provided,
however, that the Company, the Issuer and the Issuer's Subsidiaries shall not be
required to preserve any such right or franchise or
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the corporate existence of any such Subsidiary if the Board of Directors of the
Issuer shall determine that the preservation thereof is no longer necessary or
desirable in the conduct of the business of the Company, the Issuer and the
Issuer's Subsidiaries taken as a whole and that the loss thereof would not
reasonably be expected to have a material adverse effect on the ability of the
Issuer or the Company to perform its obligations hereunder.
Section 1005. Payment of Taxes and Other Claims.
The Issuer and the Company shall pay or discharge or cause to be
paid or discharged, on or before the date the same shall become due and payable,
(a) all taxes, assessments and governmental charges levied or imposed upon the
Issuer, the Company or any of the Issuer's Subsidiaries shown to be due on any
return of the Issuer, the Company or any of the Issuer's Subsidiaries or
otherwise assessed or upon the income, profits or property of the Issuer, the
Company or any of the Issuer's Subsidiaries if failure to pay or discharge the
same could reasonably be expected to have a material adverse effect on the
ability of the Issuer or the Company to perform its obligations hereunder and
(b) all lawful claims for labor, materials and supplies, which, if unpaid, would
by law become a Lien upon the property of the Issuer, the Company or any of the
Issuer's Subsidiaries, except for any Lien permitted to be Incurred under
Section 1007, if failure to pay or discharge the same could reasonably be
expected to have a material adverse effect on the ability of the Issuer or the
Company to perform its obligations hereunder; provided, however, that the Issuer
and the Company or any of the Issuer's Subsidiaries shall not be required to pay
or discharge or cause to be paid or discharged any such tax, assessment, charge
or claim whose amount, applicability or validity is being contested in good
faith by appropriate proceedings properly instituted and diligently conducted
and in respect of which appropriate reserves (in the good faith judgment of
management of the Issuer or the Company, as applicable) are being maintained in
accordance with GAAP.
Section 1006. Maintenance of Properties.
The Issuer and the Company shall cause all material properties owned
by the Issuer, the Company or any of the Issuer's Subsidiaries or used or held
for use in the conduct of their respective businesses to be maintained and kept
in good condition, repair and working order (ordinary wear and tear excepted)
and supplied with all necessary equipment and will cause to be made all
necessary repairs, renewals, replacements, betterments and improvements thereof,
all as in the reasonable judgment of the Issuer and the Company may be
consistent with sound business practice and necessary so that the business
carried on in connection therewith may be properly conducted at all times;
provided, however, that nothing in this Section shall prevent the Issuer and the
Company from discontinuing the maintenance of any of such properties if such
discontinuance is, in the reasonable judgment of the Issuer or the Company,
desirable in the conduct of the business of the Company, the Issuer and the
Issuer's Subsidiaries, taken as a whole, and
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not reasonably expected to have a material adverse effect on the ability of
the Issuer or the Company to perform its obligations hereunder.
Section 1007. Limitation on Liens.
The Issuer shall not, and shall not permit any Restricted Subsidiary
to, Incur Debt secured by a Lien upon any Restricted Property ("Secured Debt")
without effectively and concurrently providing that the Securities (and, if the
Issuer shall so determine, any other Debt that is not subordinate in right of
payment to the Securities) shall be secured equally and ratably with (or prior
to) such Debt so long as such Debt shall be so secured. This restriction will
not apply to:
(1) Liens existing on the date of the Indenture;
(2) Liens affecting property of a Person existing at the time it
becomes a Restricted Subsidiary or at the time it is merged into or
consolidated with the Issuer or a Restricted Subsidiary or at the time of a
sale, lease or other disposition of the properties of such Person as an
entirety or substantially as an entirety to the Issuer or a Restricted
Subsidiary;
(3) Liens on property existing at the time of acquisition or
lease 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 185 days after the acquisition for the purpose of financing all or
part of the purchase price;
(4) Liens on property to secure all or part of the cost of
construction or improvements thereon or to secure Debt Incurred prior to,
at the time of, or within 185 days after completion of such construction or
making of such improvements, to provide funds for any such purpose;
(5) Liens securing Debt of the Issuer or any
Restricted Subsidiary owing to the Issuer or to another
Subsidiary of the Issuer;
(6) Liens required by any contract or statute in order to permit
the Issuer or its Subsidiaries to perform any contract or subcontract made
by it with or at the request of the United States, any State of the United
States, another country or any department, agency or instrumentality of the
foregoing;
(7) Liens securing only the Securities and/or the
Company Guarantees;
(8) Liens to secure bids, tenders, contracts (other than
contracts for the repayment of borrowed money), leases, statutory
obligations, surety and
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appeal bonds, performance or return-of-money bonds, progress payments,
customs duties and other obligations of like nature arising in the ordinary
course of business; and
(9) Any extension, renewal, refinancing, refunding or replacement
(or successive extensions, renewals, refinancings, refundings or
replacements) of any Lien or Debt secured by any Lien, in whole or in part,
that is referred to in the foregoing clauses (1) through (8); provided,
however, that the principal amount of Debt so secured pursuant to this
clause (9) shall not exceed the principal amount of Debt so secured (plus
the aggregate amount of premiums, other payments, costs, and expenses
required to be paid or Incurred in connection with such extension, renewal,
refinancing, refunding or replacement) at the time of such extension,
renewal, refinancing, refunding or replacement, and that such extension,
renewal, refinancing, refunding or replacement shall be limited to all or
the part of the property (including improvements, alterations and repairs
on such property) subject to the encumbrance so extended, renewed,
refinanced, refunded or replaced (plus improvements, alterations and
repairs on such property).
In addition, the Issuer and any Restricted Subsidiaries may, without
securing the Securities, Incur Secured Debt in an aggregate principal amount
which, together with (without duplication) (a) the aggregate principal amount of
all other Secured Debt of the Issuer and the Restricted Subsidiaries (other than
Debt permitted to be secured under the provisions described in clauses (1)
through (9) inclusive, above), (b) the aggregate Value of Sale and Lease-Back
Transactions of the Issuer and Restricted Subsidiaries (other than Sale and
Lease-Back Transactions permitted under the provisions described in clauses (1)
and (2) inclusive of Section 1008), and (c) the aggregate principal amount of
all Funded Debt of the Restricted Subsidiaries (other than Funded Debt permitted
to be Incurred under provisions described in clauses (1) through (7) inclusive
of Section 1009), does not at any one time exceed 15% of Consolidated Net
Tangible Assets.
Section 1008. Limitation on Sale and Leaseback Transactions.
The Issuer shall not, and shall not permit any Restricted Subsidiary
to, enter into any arrangement with any Person (other than the Issuer or a
Restricted Subsidiary), providing for the leasing to the Issuer or a Restricted
Subsidiary for a period of more than three years of any Restricted Property
which has been or is to be sold or transferred by the Issuer or such Restricted
Subsidiary to such Person or to any other Person (other than the Issuer or a
Restricted Subsidiary), to which funds have been or are to be advanced by such
Person on the security of the leased property (each such arrangement, a "Sale
and Lease-Back Transaction") unless:
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(1) the Issuer or such Restricted Subsidiary applies or commits to
apply an amount equal to the Value of such Sale and Lease-Back Transaction to
the repayment, redemption or retirement (other than any mandatory repayment,
redemption or retirement or by way of payment at maturity) within 185 days of
the effective date of such Sale and Lease-Back Transaction of Debt of the Issuer
or any Restricted Subsidiary which by its terms (a) matures at (or is extendible
or renewable, at the sole option of the obligor without the consent of the
obligee, to) a date more than 12 months after the date of creation of such Debt,
and (b) is not subordinated to the Securities or the Company Guarantees; or
(2) the Issuer or such Restricted Subsidiary applies the net proceeds
of the sale to investment in another Restricted Property within 185 days prior
or subsequent to such sale.
In addition, the Issuer and any Restricted Subsidiary may enter into a
Sale and Lease-Back Transaction with a Value which, together with (without
duplication) (a) the aggregate Value of all other Sale and Lease-Back
Transactions of the Issuer and the Restricted Subsidiaries (other than Sale and
Lease-Back Transactions permitted under the provisions described in clauses (1)
and (2) above), (b) the aggregate principal amount of all Secured Debt of the
Issuer and the Restricted Subsidiaries (other than Debt permitted to be secured
under the provisions described in clauses (1) through (9) inclusive under
Section 1007), and (c) the aggregate principal amount of all Funded Debt of the
Restricted Subsidiaries (other than Funded Debt permitted to be Incurred under
the provisions described in clause (1) through (7) inclusive under Section
1009), does not at the time of entering into exceed 15% of Consolidated Net
Tangible Assets.
Section 1009. Limitation on Restricted Subsidiary Funded Debt.
The Issuer shall not permit any Restricted Subsidiary to Incur any
Funded Debt. This restriction shall not apply to:
(1) Funded Debt of any Restricted Subsidiary existing on the date of
the Indenture;
(2) Funded Debt of a Person existing at the time it becomes a
Restricted Subsidiary or at the time it is merged into or consolidated with a
Restricted Subsidiary or at the time of a sale, lease or other disposition of
the properties of such Person as an entirety or substantially as an entirety to
a Restricted Subsidiary;
(3) Funded Debt Incurred prior to, at the time of, or within 185 days
after the acquisition of property or assets for the purpose of financing all or
part of the purchase price;
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(4) Funded Debt Incurred prior to, at the time of, or within 185 days
after the construction, improvement or development of property or assets to
provide funds for any such purpose;
(5) Funded Debt owing by a Restricted Subsidiary to the Issuer or
another Subsidiary of the Issuer or, during such time as the Company Guarantees
remain in effect, to the Company or to any other Subsidiary of the Company;
(6) Funded Debt of a Restricted Subsidiary (a) that serves as a cash
management company for the Issuer and its Subsidiaries (or for the Company and
its Subsidiaries during such time as the Company Guarantees remain in effect)
and has no other material operations or business, (b) that, for every transfer
of funds to it, records a corresponding liability on its books and records to
the transferor thereof, and (c) whose assets will not materially exceed its
liabilities; and
(7) Any extension, renewal, refinancing, refunding or replacement (or
successive extensions, renewals, refinancings, refundings or replacements) of
any Funded Debt referred to in any of the foregoing clauses (1) through (6);
provided, however, that the principal amount of the Funded Debt Incurred
pursuant to this clause (7) shall not exceed the principal amount of Funded Debt
so extended, renewed, refinanced, refunded or replaced (plus the aggregate
amount of premiums, other payments, costs and expenses required to be paid or
Incurred in connection with such extension, renewal, refinancing, refunding or
replacement) at the time of such extension, renewal, refinancing, refunding or
replacement.
In addition, a Restricted Subsidiary may issue, incur, create, assume
or guarantee Funded Debt in an aggregate principal amount which, together with
(without duplication) (a) the aggregate principal amount of all other Funded
Debt of the Restricted Subsidiaries (other than Funded Debt permitted to be
Incurred under the provisions described in clauses (1) through (7) inclusive
above), (b) the aggregate principal amount of all Secured Debt of the Issuer and
the Restricted Subsidiaries (other than Debt permitted to be secured under the
provisions described in clauses (1) through (9) inclusive under Section 1007),
and (c) the aggregate Value of Sale and Lease-Back Transactions (other than Sale
and Lease-Back Transactions described in clauses (1) and (2) under Section 1008,
does not at the time of such incurrence exceed 15% of Consolidated Net Tangible
Assets.
Section 1010. Provision of Financial Statements.
Whether or not the Issuer is subject to Section 13(a) or 15(d) of
the Exchange Act (or any successor provision thereto), the Issuer will, to the
extent permitted under the Exchange Act, file with the Commission the annual
reports, quarterly reports
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and other documents which the Issuer would have been required to file with the
Commission pursuant to such Section 13(a) or 15(d) (or any successor provision
thereto) if the Issuer were so subject, such documents to be filed with the
Commission on or prior to the respective dates (the "Required Filing Dates") by
which the Issuer would have been required so to file such documents if the
Issuer were so subject. The Issuer also will: (1) within 15 days of each
Required Filing Date file with the Trustee copies of the annual reports,
quarterly reports and other documents (excluding exhibits) which the Issuer
would have been required to file with the Commission pursuant to Section 13(a)
or 15(d) of the Exchange Act if the Issuer were subject to such Sections; and
(2) if filing such documents by the Issuer with the Commission is not permitted
under the Exchange Act, promptly upon written request supply copies of such
documents to any Holder. The Issuer will be deemed to have satisfied the
requirements set forth above if (i) the Company prepares, files, mails and
supplies reports and other documents prepared on a Consolidated basis of the
types required above, in each case within the applicable time periods and (ii)
the Issuer is not required to file such reports and other documents separately
under the applicable rules and regulations of the Commission (after giving
effect to any exemptive relief) because of the filings by the Company.
Section 1011. Statement by Officers as to Default.
(a) The Issuer shall deliver to the Trustee, on or before a date not
more than 120 days after the end of each fiscal year of the Issuer ending after
the date hereof, a written statement signed by two executive officers of the
Issuer, one of whom shall be the principal executive officer, principal
financial officer or principal accounting officer of the Issuer, as to
compliance herewith, including whether or not, after a review of the activities
of the Issuer during such year and of the Issuer's and the Company's performance
under this Indenture, to the best knowledge, based on such review, of the
signers thereof, the Issuer and the Company have fulfilled all of their
respective obligations and are in compliance with all conditions and covenants
under this Indenture throughout such year, as the case may be, and, if there has
been a Default specifying each Default and the nature and status thereof and any
actions being taken by the Issuer with respect thereto.
(b) When any Default or Event of Default has occurred and is
continuing, or if the Trustee or any Holder or the trustee for or the holder of
any other evidence of Debt of the Issuer or any Subsidiary gives any notice or
takes any other action with respect to a claimed default relating to Debt in an
amount aggregating in excess of $20,000,000, the Issuer shall deliver to the
Trustee by registered or certified mail or facsimile transmission followed by
hard copy an Officers' Certificate specifying such Default, Event of Default,
notice or other action, the status thereof and what actions the Issuer is taking
or proposes to take with respect thereto, within five Business Days of becoming
aware of its occurrence.
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Section 1012. Waiver of Certain Covenants.
The Issuer may omit in any particular instance to comply with any
covenant or provision set forth in Sections 1006 through 1010 inclusive, if,
before or after the time for such compliance, the Holders of not less than a
majority in aggregate principal amount of the Securities at the time Outstanding
shall, by Act of such Holders, waive such compliance in such instance with such
covenant or provision, but no such waiver shall extend to or affect such
covenant or condition except to the extent so expressly waived, and, until such
waiver shall become effective, the obligations of the Issuer and the duties of
the Trustee in respect of any such covenant or condition shall remain in full
force and effect.
ARTICLE ELEVEN
COMPANY GUARANTEES OF SECURITIES
Section 1101. Unconditional Company Guarantees.
The Company hereby irrevocably and unconditionally guarantees to each
Holder of a Security authenticated and delivered by the Trustee, and to the
Trustee, the performance under, and the due and punctual payment of the
principal of, and interest on (and, if applicable, the Tax Redemption Price or
Additional Amounts in respect of) such Security, when and as the same shall
become due and payable, whether upon maturity, acceleration, call for redemption
or otherwise in accordance with the terms of such Security and of this
Indenture.
The Company hereby agrees that its obligations hereunder shall be
absolute and unconditional and as if it were principal debtor and not merely
surety, irrespective of, and shall be unaffected by, any invalidity,
irregularity or unenforceability of any such Security or this Indenture, any
failure to enforce the provisions of any such Security or this Indenture, any
waiver, modification, or indulgence granted to the Issuer with respect thereto,
by the Holder of such Security or the Trustee, or any other circumstances which
may otherwise constitute a legal or equitable discharge of a surety or
guarantor; provided, however, that, notwithstanding the foregoing, no such
waiver, modification, indulgence or circumstance shall without the consent of
the Company increase the principal amount of a Security or the interest rate
thereon except as provided in said Security. The Company hereby agrees that
these Company Guarantees shall be enforceable without any demand, suit or
proceeding first against the Issuer. The Company hereby agrees to pay any and
all expenses (including reasonable counsel fees and expenses) incurred by the
Trustee in enforcing rights under the Company Guarantees. The Company hereby
waives diligence, presentment, demand of payment, filing of claims with a court
in the event of merger or bankruptcy of the Issuer, any right to require a
proceeding first against the
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Issuer, protest or notice with respect to any such Security or the indebtedness
evidenced thereby and all demands whatsoever and covenants that the Company
Guarantees will not be discharged as to any such Security except by payment in
full of the principal thereof and interest thereon or as set forth below.
The Company Guarantees set forth in this Section 1101 shall not be
valid or become obligatory for any purpose with respect to a Security until the
certificate of authentication on such Security shall have been signed by the
Trustee.
If the obligations of the Issuer under this Indenture are assumed by
an acquiring or successor Person (other than a direct or indirect Subsidiary of
the Company) pursuant to Section 801, or upon the release of the Company
Guarantees in accordance with the provisions of Section 902, the Company
Guarantees shall terminate (without any action or consent required by the
Holders or the Trustee) and be of no further force and effect, the obligations
of the Company thereunder and under the Indenture shall be released, and the
Company shall cease to be a party to, or have rights or obligations under, this
Indenture and all references to the Company shall be deleted.
Section 1102. Execution of Company Guarantees.
Subject to Section 201, the Company hereby agrees to execute the
Company Guarantees in substantially the form set forth in Section 1103 to be
endorsed on each Security authenticated and delivered by the Trustee. The
Company Guarantees shall be executed and the corporate seal of the Company shall
be affixed, prior to the authentication of the Security on which it is endorsed,
and the delivery of such Security by the Trustee, after the authentication
thereof hereunder, shall constitute due delivery of the Company Guarantees on
behalf of the Company. Such signature may be a manual or facsimile signature and
may be imprinted or otherwise reproduced on the Company Guarantees, and for that
purpose the Company may adopt and use the facsimile signature of any such
officer, and in case any such officer who shall have signed the Company
Guarantees shall cease to be a duly authorized officer of the Company before the
Security on which the Company Guarantee is endorsed shall have been
authenticated and delivered by the Trustee or disposed of by the Issuer, such
Security nevertheless may be authenticated and delivered or disposed of as
though the officer who signed the Company Guarantees had not ceased to be a duly
authorized director or attorney of the Company.
Section 1103. Form of Company Guarantees.
The Company Guarantees to be endorsed on the Securities shall, subject
to Section 201, be in substantially the form set forth below:
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[FORM OF COMPANY GUARANTEES]
GUARANTEE OF MILLENNIUM CHEMICALS INC.
For value received, Millennium Chemicals Inc., a Delaware corporation
(the "Company"), hereby irrevocably and unconditionally guarantees to the Holder
of the Security upon which this Company Guarantee is endorsed the performance
under, and the due and punctual payment of the principal of, Tax Redemption
Price and Additional Amounts with respect to, and interest, if any, on, said
Security, when and as the same shall become due and payable, whether upon
maturity, acceleration, call for redemption thereof or otherwise, according to
the terms thereof and of the Indenture referred to therein.
The Company hereby agrees that its obligations hereunder shall be
absolute and unconditional, irrespective of, and shall be unaffected by, any
invalidity, irregularity or unenforceability of said Security or said Indenture,
any failure to enforce the provisions of said Security or said Indenture, any
waiver, modification or indulgence granted to the Issuer with respect thereto by
the Holder of said Security or said Trustee, or any other circumstances which
may otherwise constitute a legal or equitable discharge of a surety or
guarantor; provided, however, that, notwithstanding the foregoing, no such
waiver, modification, indulgence or circumstance shall, without the consent of
the Company, increase the principal amount of said Security or increase the
interest rate thereon except as provided in said Security. The Company hereby
agrees that this Company Guarantee shall be enforceable without any demand, suit
or proceeding first against the Issuer. The Company hereby waives diligence,
presentment, demand of payment, filing of claims with a court in the event of
merger or bankruptcy of the Issuer, any right to require a proceeding first
against the Issuer, protest or notice with respect to said Security or the
indebtedness evidenced thereby and all demands whatsoever, and covenants that
this Company Guarantee will not be discharged except by payment in full of the
principal of and interest on said Security or pursuant to the provisions of
Article Eleven of the Indenture providing for release of this Company Guarantee
under the conditions provided for therein.
This Company Guarantee shall not be valid or become obligatory for any
purpose until the certificate of authentication on said Security shall have been
signed manually by the Trustee under the Indenture referred to in said Security.
Terms used herein which are defined in such Indenture shall have the respective
meanings assigned thereto in the Indenture.
THIS COMPANY GUARANTEE SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD TO CONFLICTS
OF LAWS PRINCIPLES THEREOF.
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IN WITNESS WHEREOF, the Company has caused this instrument to be duly
executed by the manual or facsimile signature of its authorized officers and its
corporate seal to be affixed or reproduced hereon.
Dated: [ ] MILLENNIUM CHEMICALS INC.
By:______________________________________
Name:
Title:
[SEAL]
Attest:
_______________________________________
Authorized Officer
ARTICLE TWELVE
DEFEASANCE AND COVENANT DEFEASANCE
Section 1201. Issuer's Option to Effect Defeasance or Covenant Defeasance.
The Issuer may, at its option by Board Resolution, at any time
following the 91st day after the applicable conditions set forth below in this
Article Twelve have been satisfied, with respect to the Securities, elect to
have either Section 1202 or Section 1203 be applied to all of the Outstanding
Securities (the "Defeased Securities").
Section 1202. Defeasance and Discharge.
Upon the Issuer's exercise under Section 1201 of the option applicable
to this Section 1202, the Issuer, the Company and any other obligor upon the
Securities, if any, shall be deemed to have been discharged from its obligations
with respect to the Defeased Securities on the date the conditions set forth in
Section 1204 below are satisfied (hereinafter, "defeasance"). For this purpose,
such defeasance means that the Issuer, the Company and any other obligor upon
the Securities shall be deemed to have paid and discharged the entire Debt
represented by the Defeased Securities, which shall thereafter be deemed to be
"Outstanding" only for the purposes of Section 1205 and the other Sections of
this Indenture referred to in clauses (a) and (b) below, and to have satisfied
all its other obligations under such Securities and this Indenture insofar as
such Securities are concerned (and the Trustee, at the expense of the Issuer and
upon Issuer Request, shall execute proper instruments acknowledging the same),
except for the following which shall survive until otherwise terminated or
discharged hereunder: (a) the
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rights of Holders of Defeased Securities to receive, solely from the trust fund
described in Section 1204 and as more fully set forth in such Section, payments
in respect of the principal of, and interest on, such Securities, when such
payments are due from the trust referred to below, (b) the Issuer's obligations
with respect to such Defeased Securities under Sections 304, 305, 308, 1002 and
1003, (c) the rights, powers, trusts, duties and immunities of the Trustee
hereunder, and (d) the defeasance provisions under this Article Twelve. Subject
to compliance with this Article Twelve, the Issuer may exercise its option under
this Section 1202 notwithstanding the prior exercise of its option under Section
1203 with respect to the Securities.
Section 1203. Covenant Defeasance.
Upon the Issuer's exercise under Section 1201 of the option applicable
to this Section 1203, the Issuer and the Company shall be released from its
obligations under any covenant or provision contained or referred to in Sections
1005 through 1011 inclusive, and the provisions of clause (3) of Section 801(a),
with respect to the Defeased Securities on and after the date the conditions set
forth in Section 1204 below are satisfied (hereinafter, "covenant defeasance"),
and the Defeased Securities shall thereafter be deemed to be not Outstanding for
the purposes of any direction, waiver, consent or declaration or Act of Holders
(and the consequences of any thereof) in connection with such covenants, but
shall continue to be deemed Outstanding for all other purposes hereunder. For
this purpose, such covenant defeasance means that, with respect to the Defeased
Securities, the Issuer and the Company may omit to comply with and shall have no
liability in respect of any term, condition or limitation set forth in any such
Section or Article, whether directly or indirectly, by reason of any reference
elsewhere herein to any such Section or Article or by reason of any reference in
any such Section or Article to any other provision herein or in any other
document and such omission to comply shall not constitute a Default or an Event
of Default under Section 501(c), but, except as specified above, the remainder
of this Indenture and such Defeased Securities shall be unaffected thereby.
Section 1204. Conditions to Defeasance or Covenant Defeasance.
The following shall be the conditions to application of either Section
1202 or Section 1203 to the Defeased Securities:
(1) The Issuer irrevocably deposits with the Trustee as trust
funds in trust, specifically pledged as security for, and dedicated solely
to, the benefit of the holders of the Securities (a) money or (b) U.S.
Government Obligations, which through the payment of interest and principal
in respect thereof in accordance with their terms will provide (without any
reinvestment of such interest or principal), not later than one day before
the due date of any payment,
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money, in an amount, in the opinion of a nationally recognized firm of
independent public accountants expressed in a written certification thereof
delivered to the Trustee at or prior to the time of such deposit,
sufficient to pay and discharge each installment of principal and interest
on the outstanding Securities on the dates such installments of principal
and interest are or may become due;
(2) No Default or Event of Default with respect to the Indenture
or the Securities shall have occurred and be continuing on the date of such
deposit, as evidenced to the Trustee in an Officers' Certificate from the
Issuer delivered to the Trustee concurrently with such deposit;
(3) The Issuer delivers to the Trustee an Opinion of Counsel who
shall be acceptable to the Trustee to the effect that the trust arising
from such deposit shall not constitute an "investment company" under the
Investment Company Act of 1940, or such trust shall be qualified under such
Act or exempt from regulation thereunder;
(4) In the case of the defeasance under Section 1202, the Issuer
delivers to the Trustee an Opinion of Counsel stating that (a) the Issuer
has received a ruling from the Internal Revenue Service, or (b) since the
date of the Indenture there has been a change in the applicable Federal
income tax law, in either case, to the effect that, and based thereon such
Opinion of Counsel shall confirm that, the Holders of the Securities will
not recognize income, gain or loss for Federal income tax purposes as a
result of such defeasance and will be subject to Federal income tax on the
same amounts, in the same manner and at the same times as would have been
the case if such defeasance had not occurred;
(5) In the case of the covenant defeasance, the Issuer delivers
to the Trustee an Opinion of Counsel to the effect that the Holders of the
Securities will not recognize income, gain or loss for Federal income tax
purposes as a result of such covenant defeasance and will be subject to
Federal income tax on the same amounts, in the same manner and at the same
times as would have been the case if such covenant defeasance had not
occurred;
(6) The Issuer has paid or duly provided for payment of all
amounts then due to the Trustee pursuant to the terms of the Indenture; and
(7) The Issuer has delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that all conditions
precedent to the defeasance of the Securities have been complied with as
required by the Indenture.
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Opinions of Counsel or Opinions of Independent Counsel required to be
delivered under this Section shall be in form and substance reasonably
satisfactory to the Trustee and may have qualifications customary for opinions
of the type required and counsel delivering such opinions may rely on
certificates of the Issuer or government or other officials customary for
opinions of the type required, which certificates shall be limited as to matters
of fact, including that various financial covenants have been complied with.
Section 1205. Deposited Money and U.S. Government Obligations to be Held in
Trust; Other Miscellaneous Provisions.
Subject to the provisions of the last paragraph of Section 1003, all
United States dollars and U.S. Government Obligations (including the proceeds
thereof) deposited with the Trustee pursuant to Section 1204 in respect of the
Defeased Securities shall be held in trust and applied by the Trustee, in
accordance with the provisions of such Securities and this Indenture, to the
payment, either directly or through any Paying Agent (excluding the Issuer or
any of its Affiliates acting as Paying Agent), as the Trustee may determine, to
the Holders of such Securities of all sums due and to become due thereon in
respect of principal and interest, but such money need not be segregated from
other funds except to the extent required by law.
The Issuer 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 1204 or the principal and interest received in
respect thereof other than any such tax, fee or other charge which by law is
imposed, assessed or for the account of the Holders of the Defeased Securities.
Anything in this Article Twelve to the contrary notwithstanding, the
Trustee shall deliver or pay to the Issuer from time to time upon Issuer Request
any United States dollars or U.S. Government Obligations held by it as provided
in Section 1204 which, in the opinion of a nationally recognized firm of
independent public accountants expressed in a written certification thereof
delivered to the Trustee, are in excess of the amount thereof which would then
be required to be deposited to effect defeasance or covenant defeasance.
Section 1206. Reinstatement.
If the Trustee or Paying Agent is unable to apply any United States
dollars or U.S. Government Obligations in accordance with Section 1202 or 1203,
as the case may be, by reason of any order or judgment of any court or
governmental authority enjoining, restraining or otherwise prohibiting such
application, then the Issuer's obligations under this Indenture and the
Securities and the Company's obligations under
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the Company Guarantees shall be revived and reinstated, with present and
prospective effect, as though no deposit had occurred pursuant to Section 1202
or 1203, as the case may be, until such time as the Trustee or Paying Agent is
permitted to apply all such United States dollars or U.S. Government Obligations
in accordance with Section 1202 or 1203, as the case may be; provided, however,
that if the Issuer makes any payment to the Trustee or Paying Agent of principal
or interest on any Security following the reinstatement of its obligations, the
Trustee or Paying Agent shall promptly pay any such amount to the Holders of the
Securities and the Issuer shall be subrogated to the rights of the Holders of
such Securities to receive such payment from the United States dollars and U.S.
Government Obligations held by the Trustee or Paying Agent.
ARTICLE THIRTEEN
REDEMPTION OF SECURITIES
Section 1301. Tax Redemption.
(a) Upon the occurrence of a "Tax Event," the Issuer may, at its
option and subject to the procedures set forth below, redeem (a "Tax
Redemption") the Securities, in whole only, at any time (the "Tax Redemption
Date") at a redemption price (the "Tax Redemption Price") of 100% of the
principal amount thereof plus accrued interest to the date fixed for redemption.
(b) A Tax Event occurs if, as the result of any change in or any
amendment to the laws, including any applicable double taxation treaty or
convention, of the United Kingdom (or any Other Jurisdiction) or of any
political subdivision or taxing authority thereof, affecting taxation, or any
change in the application or interpretation of such laws, double taxation treaty
or convention, which change or amendment becomes effective on or after the
original issuance date of any series of the Securities (or such later date on
which any assignee of the Issuer, the Company or any successor corporation to
the Issuer or the Company becomes such), it is determined by the Issuer, the
Company or such assignee (which terms, for purposes of the remainder of this
paragraph, include any successor thereto) that (i) the Issuer, the Company or an
assignee would be required to make additional payments in respect of principal
and interest on the next succeeding date for the payment thereof, or (ii) based
upon an Opinion of Independent Counsel to the Issuer, the Company or an
assignee, as a result of any action taken by any taxing authority of, or any
action brought in a court of competent jurisdiction in, the United Kingdom (or
an Other Jurisdiction) or any political subdivision or taxing authority thereof
or therein (whether or not such action was taken or brought with respect to the
Issuer, the Company or its assignee), which action is taken or brought on or
after the original issuance date of such series (or, in certain circumstances,
such later date on which a corporation becomes an assignee), the circumstances
described in clause (i) would exist.
-73-
(c) A Tax Redemption shall be for not less than all of
the Securities.
Section 1302. Applicability of Article.
Redemption of Securities at the election of the Issuer, the Company or
otherwise, as permitted or required by any provision of this Indenture, shall be
made in accordance with such provision and this Article Thirteen.
Section 1303. Election to Redeem; Notice to Trustee.
The election of the Issuer to redeem Securities pursuant to Section
1301 shall be evidenced by an Issuer Order and an Officers' Certificate. In case
of any redemption at the election of the Issuer, the Issuer shall, not less than
45 nor more than 60 days prior to the Tax Redemption Date fixed by the Issuer
(unless a shorter notice period shall be satisfactory to the Trustee), notify
the Trustee in writing of such Tax Redemption Date.
Section 1304. Notice of Redemption.
In order to redeem the Securities, notice of redemption must be given
by first-class mail, postage prepaid, mailed not less than 30 nor more than 60
days prior to the Tax Redemption Date, to each Holder of Securities to be
redeemed, at his address appearing in the Security Register.
All notices of redemption shall state:
(a) the Tax Redemption Date;
(b) the Tax Redemption Price;
(c) that Securities called for redemption must be surrendered to the
Paying Agent to collect the Tax Redemption Price;
(d) that on the Tax Redemption Date the Tax Redemption Price will
become due and payable upon each such Security, and that (unless the Issuer
shall default in payment of the Tax Redemption Price) interest thereon shall
cease to accrue on and after said date;
(e) subject to procedures with respect to Global Securities, the place
or places where such Securities are to be surrendered for payment of the Tax
Redemption Price; and
(f) the CUSIP number, if any, relating to such
Securities.
Notice of redemption of Securities to be redeemed at the election of
the Issuer shall be given by the Issuer or, at the Issuer's written request, by
the Trustee in the
-74-
name and at the expense of the Issuer. If the Issuer elects to give notice of
redemption, it shall provide the Trustee with a certificate stating that such
notice has been given in compliance with the requirements of this Section 1304.
The notice, if mailed in the manner herein provided, shall be
conclusively presumed to have been given, whether or not the Holder receives
such notice. In any case, failure to give such notice by mail or any defect in
the notice to the Holder of any Security designated for repurchase as a whole
shall not affect the validity of the proceedings for the redemption of any other
Security.
Section 1306. Deposit of Tax Redemption Price.
On or prior to any Tax Redemption Date, the Issuer shall deposit with
the Trustee or with a Paying Agent (or, if the Issuer or any of its Affiliates
is acting as Paying Agent, segregate and hold in trust as provided in Section
1003) an amount of money in same day funds sufficient to pay the Tax Redemption
Price of, and (except if the Tax Redemption Date shall be an Interest Payment
Date or Special Payment Date) accrued interest on, all of the Securities which
are to be redeemed on that date. All money earned on funds held in trust by the
Trustee or any Paying Agent shall be remitted to the Issuer.
Section 1307. Securities Payable on Redemption Date.
Notice of redemption having been given as aforesaid, the Securities so
to be redeemed shall, on the Tax Redemption Date, become due and payable at the
Tax Redemption Price therein specified and from and after such date (unless the
Issuer shall default in the payment of the Tax Redemption Price and accrued
interest) such Securities shall cease to bear interest. Upon surrender of any
such Security for redemption in accordance with said notice, such Security shall
be paid by the Issuer at the Tax Redemption Price together with accrued interest
to the Tax Redemption Date; provided, however, that installments of interest
whose Stated Maturity is on or prior to the Tax Redemption Date shall be payable
to the Holders of such Securities, or one or more Predecessor Securities,
registered as such on the relevant Regular Record Dates and Special Record Dates
according to the terms and the provisions of Section 308.
If any Security called for redemption shall not be so paid upon
surrender thereof for redemption, the principal shall, until paid, bear interest
from the Tax Redemption Date at the rate borne by such Security.
-75-
IN WITNESS WHEREOF, the parties hereto have caused this Indenture to
be duly executed, all as of the day and year first above written.
MILLENNIUM AMERICA INC.
By: _____________________________________
Name:
Title:
MILLENNIUM CHEMICALS INC.
By: _____________________________________
Name:
Title:
THE BANK OF NEW YORK, AS TRUSTEE
By: _____________________________________
Name:
Title:
-76-
MILLENNIUM AMERICA INC.
[---]% SENIOR NOTE DUE NOVEMBER __, 2006
GUARANTEED AS TO PAYMENT OF PRINCIPAL
AND INTEREST BY MILLENNIUM CHEMICALS INC.
CUSIP NO. ______________
No. __________ $_______________________
[If the Security is a Global Security, then insert --THIS SECURITY IS
A GLOBAL SECURITY WITHIN THE MEANING OF THE INDENTURE HEREINAFTER REFERRED TO
AND IS REGISTERED IN THE NAME OF A DEPOSITARY OR A NOMINEE THEREOF. THIS
SECURITY MAY NOT BE EXCHANGED IN WHOLE OR IN PART FOR A SECURITY REGISTERED, AND
NO TRANSFER OF THIS SECURITY IN WHOLE OR IN PART MAY BE REGISTERED, IN THE NAME
OF ANY PERSON OTHER THAN SUCH DEPOSITARY OR A NOMINEE THEREOF, EXCEPT IN THE
LIMITED CIRCUMSTANCES DESCRIBED IN THE INDENTURE.]
[If the Security is a Global Security and DTC is to be the Depositary
therefor, then insert -- UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED
REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"),
TO THE ISSUER OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT,
AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH
OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY
PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN
AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR
VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED
OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.]
Millennium America Inc., a Delaware corporation (the "Issuer", which
term includes any successor corporation under the Indenture hereinafter referred
to), for value received, hereby promises to pay to ________________ or
registered assigns, the principal sum of ______________________ United States
dollars, [If the Security is a Global Security, then insert -- or such other
principal amount (which, when taken together with the principal amounts of all
other Outstanding Securities, shall not exceed $[ ] in the aggregate at any
one time) as may be set forth in the records of the Trustee hereinafter referred
to in accordance with
A-1
the Indenture,] on [ ], 2006, at the office or agency of the Issuer
referred to below, and to pay interest thereon from [ ], or from the
most recent Interest Payment Date to which interest has been paid or duly
provided for, semiannually on [ ] and [ ] in each year,
commencing [ ] at the rate of [ ]% per annum, in United States
dollars, until the principal hereof is paid or duly provided for. Interest shall
be computed on the basis of a 360- day year comprised of twelve 30-day months.
Any amount of interest on this Security which is overdue shall bear
interest (to the extent that payment thereof shall be legally enforceable) at
the rate per annum borne by this Security from the date such amount is due to
the day it is paid or made available for payment, and such overdue interest
shall be payable on demand.
The interest so payable, and punctually paid or duly provided for, on
any Interest Payment Date will, as provided in such Indenture, be paid to the
Person in whose name this Security (or any Predecessor Securities) is registered
at the close of business on the Regular Record Date for such interest, which
shall be the [ ] or [ ] (whether or not a Business Day), as the case may be,
next preceding such Interest Payment Date. Any such interest not so punctually
paid or duly provided for shall forthwith cease to be payable to the Holder on
the relevant Regular Record Date, and may either be paid to the Person in whose
name this Security (or any Predecessor Securities) is registered at the close of
business on a Special Record Date for the payment of such Defaulted Interest to
be fixed by the Trustee, notice whereof shall be given to Holders of Securities
not less than 10 days prior to such Special Record Date, or be paid at any time
in any other lawful manner not inconsistent with the requirements of any
securities exchange on which the Securities may be listed, and upon such notice
as may be required by such exchange, all as more fully provided in said
Indenture.
Payment of the principal of, Tax Redemption Price and Additional
Amounts with respect to, and interest on, this Security, and exchange or
transfer of this Security, will be made at the office or agency of the Issuer in
The City of New York maintained for that purpose (which initially will be the
Corporate Trust Office of the Trustee), or at such other office or agency as may
be maintained for such purpose, in such coin or currency of the United States of
America as at the time of payment is legal tender for payment of public and
private debts; provided, however, that payment of interest may be made at the
option of the Issuer by check mailed to the address of the Person entitled
thereto as such address shall appear on the Security Register.
Additional Amounts in respect of principal and interest, if any, may
be made by the Company under circumstances relating to tax withholding by
certain foreign jurisdictions, such circumstances set forth in Section 301 of
the Indenture.
Except with respect to a Tax Redemption pursuant to Article Thirteen
of the Indenture, the Securities shall not be subject to redemption prior to
Maturity and shall not have the benefit of any sinking fund obligations.
A-2
Reference is hereby made to the further provisions of this Security
set forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
This Security is entitled to the benefits of the Company Guarantees of
the punctual payment when due of the Indenture Obligations made in favor of the
Trustee for the benefit of the Holders, which Company Guarantees are subject to
release. Reference is hereby made to Article Eleven of the Indenture for a
statement of the respective rights, limitations of rights, duties and
obligations under the Company Guarantees. Each Holder, by holding this Security,
agrees to all terms and provisions of the Company Guarantees.
Unless the certificate of authentication hereon has been duly executed
by the Trustee referred to on the reverse hereof or by the authenticating agent
appointed as provided in the Indenture by manual signature of an authorized
signer, this Security shall not be entitled to any benefit under the Indenture,
or be valid or obligatory for any purpose.
IN WITNESS WHEREOF, the Issuer has caused this instrument to be duly
executed by the manual or facsimile signature of its authorized officers and its
corporate seal to be affixed or reproduced hereon.
MILLENNIUM AMERICA INC.
By:______________________________________
[SEAL] Name:
Title:
Attest:
_______________________________________
Authorized Officer
A-3
FORM OF REVERSE OF SECURITIES
MILLENNIUM AMERICA INC.
[ ]% SENIOR NOTE DUE NOVEMBER __, 2006
This Security is one of a duly authorized issue of Securities of the
Issuer designated as its [ ]% Senior Notes Due November __, 2006 (the
"Securities"), limited (except as otherwise provided in the Indenture referred
to below) in aggregate principal amount to $[ ], issued under and
subject to the terms of an indenture (the "Indenture") dated as of [ ],
among the Issuer, Millennium Chemicals Inc. (the "Company", which term includes
any successor corporation under the Indenture) and The Bank of New York, as
trustee (the "Trustee", which term includes any successor trustee under the
Indenture), to which Indenture and all indentures supplemental thereto reference
is hereby made for a statement of the respective rights, limitations of rights,
duties, obligations and immunities thereunder of the Issuer, the Company, the
Trustee and the Holders of the Securities, and of the terms upon which the
Securities, with the Company Guarantees endorsed thereon, are, and are to be,
authenticated and delivered.
The Indenture contains provisions for defeasance at any time of (a)
the entire Debt on the Securities, and (b) certain restrictive covenants, in
each case upon compliance with certain conditions set forth therein.
If an Event of Default shall occur and be continuing, the principal
amount of all the Securities may be declared due and payable in the manner and
with the effect provided in the Indenture.
The Indenture permits, with certain exceptions (including certain
amendments permitted without the consent of any Holders) as therein provided,
the amendment thereof and the modification of the rights and obligations of the
Issuer and the Company and the rights of the Holders of the Securities under the
Indenture at any time by the Issuer, the Company and the Trustee with the
consent of the Holders of a majority in aggregate principal amount of the
Securities at the time Outstanding. The Indenture also contains provisions
permitting the Holders of specified percentages in aggregate principal amount of
the Securities at the time Outstanding, on behalf of the Holders of all the
Securities, to waive compliance by the Issuer and the Company with certain
provisions of the Indenture and certain past Defaults under the Indenture and
their consequences. Any such consent or waiver by or on behalf of the Holder of
this Security shall be conclusive and binding upon such Holder and upon all
future Holders of this Security and of any Security issued upon the registration
of transfer hereof or in exchange herefor or in lieu hereof, whether or not
notation of such consent or waiver is made upon this Security.
A-4
No reference herein to the Indenture and no provision of this Security
or of the Indenture shall alter or impair the obligation of the Issuer, the
Company or any other obligor on the Securities (if the Company or such other
obligor is obligated to make payments in respect of the Securities), which is
absolute and unconditional, to pay the principal of, Tax Redemption Price and
Additional Amounts with respect to, and interest on, this Security at the times,
place and rate, and in the coin or currency, herein prescribed.
As provided in and subject to the provisions of the Indenture, the
Holder of this Security shall not have the right to institute any proceeding
with respect to the Indenture or for the appointment of a receiver or trustee or
for any other remedy thereunder, unless such Holder shall have previously given
the Trustee written notice of a continuing Event of Default with respect to the
Securities, the Holders of not less than 25% in principal amount of the
Securities at the time Outstanding shall have made written request to the
Trustee to institute proceedings in respect of such Event of Default as Trustee
and offered the Trustee reasonable indemnity and the Trustee shall not have
received from the Holders of a majority in principal amount of Securities at the
time Outstanding a direction inconsistent with such request and shall have
failed to institute any such proceeding for 30 days after receipt of such
notice, request and offer of indemnity. The foregoing shall not apply to certain
suits described in the Indenture, including any suit instituted by the Holder of
this Security for the enforcement of any payment of principal hereof or interest
hereon on or after the respective due dates expressed herein.
No service charge shall be made for any registration of transfer or
exchange of Securities, but the Issuer may require payment of a sum sufficient
to cover any tax or other governmental charge payable in connection therewith.
As provided in the Indenture and subject to certain limitations
therein set forth, the transfer of this Security is registrable in the Security
Register, upon surrender of this Security for registration of transfer at the
office or agency of the Issuer in The City of New York, duly endorsed by, or
accompanied by a written instrument of transfer in form satisfactory to the
Issuer and the Security Registrar duly executed by, the Holder hereof or his
attorney duly authorized in writing, and thereupon one or more new Securities,
of authorized denominations and for the same aggregate principal amount, will be
issued to the designated transferee or transferees.
The Securities are issuable only in registered form without coupons in
denominations of $1,000 and any integral multiple thereof. As provided in the
Indenture and subject to certain limitations therein set forth, Securities are
exchangeable for a like aggregate principal amount of Securities of a different
authorized denomination, as requested by the Holder surrendering the same.
A-5
Prior to due presentment of this Security for registration of
transfer, the Issuer, the Company, the Trustee and any agent of the Issuer, the
Company or the Trustee may treat the Person in whose name this Security is
registered as the owner hereof for all purposes, whether or not this Security is
overdue, and neither the Issuer, the Company, the Trustee nor any such agent
shall be affected by notice to the contrary.
THIS SECURITY SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH
THE LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD TO CONFLICTS OF LAWS
PRINCIPLES THEREOF.
All terms used in this Security which are defined in the Indenture and
not otherwise defined herein shall have the meanings assigned to them in the
Indenture.
Dated: ____________________
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the [ ]% Senior Notes Due November __, 2006 referred to
in the within-mentioned Indenture.
THE BANK OF NEW YORK,
as Trustee
By: _____________________________________
Authorized Signatory
A-6
FORM OF [ ]% SENIOR DEBENTURES DUE NOVEMBER __, 2026
MILLENNIUM AMERICA INC.
[ ]% SENIOR DEBENTURE DUE NOVEMBER __, 2026
GUARANTEED AS TO PAYMENT OF PRINCIPAL
AND INTEREST BY MILLENNIUM CHEMICALS INC.
CUSIP NO. ______________
No. __________ $_______________________
[If the Security is a Global Security, then insert --THIS SECURITY IS
A GLOBAL SECURITY WITHIN THE MEANING OF THE INDENTURE HEREINAFTER REFERRED TO
AND IS REGISTERED IN THE NAME OF A DEPOSITARY OR A NOMINEE THEREOF. THIS
SECURITY MAY NOT BE EXCHANGED IN WHOLE OR IN PART FOR A SECURITY REGISTERED, AND
NO TRANSFER OF THIS SECURITY IN WHOLE OR IN PART MAY BE REGISTERED, IN THE NAME
OF ANY PERSON OTHER THAN SUCH DEPOSITARY OR A NOMINEE THEREOF, EXCEPT IN THE
LIMITED CIRCUMSTANCES DESCRIBED IN THE INDENTURE.]
[If the Security is a Global Security and DTC is to be the Depositary
therefor, then insert -- UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED
REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"),
TO THE ISSUER OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT,
AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH
OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY
PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN
AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR
VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED
OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.]
Millennium America Inc., a Delaware corporation (the "Issuer", which
term includes any successor corporation under the Indenture hereinafter referred
to), for value received, hereby promises to pay __________ to or registered
assigns, the principal sum of ________________ United States dollars, [If the
Security is a Global Security, then insert -- or such other principal amount
(which, when taken together with the principal amounts of all other Outstanding
Securities, shall not exceed $[-------] in the aggregate at any one time) as
B-1
may be set forth in the records of the Trustee hereinafter referred to in
accordance with the Indenture,] on [ ], 2026, at the office or agency
of the Issuer referred to below, and to pay interest thereon from [ ], or
from the most recent Interest Payment Date to which interest has been paid or
duly provided for, semiannually on [ ] and [ ] in each year,
commencing [ ] at the rate of [ ]% per annum, in United States dollars,
until the principal hereof is paid or duly provided for. Interest shall be
computed on the basis of a 360-day year comprised of twelve 30-day months.
Any amount of interest on this Security which is overdue shall bear
interest (to the extent that payment thereof shall be legally enforceable) at
the rate per annum borne by this Security from the date such amount is due to
the day it is paid or made available for payment, and such overdue interest
shall be payable on demand.
The interest so payable, and punctually paid or duly provided for, on
any Interest Payment Date will, as provided in such Indenture, be paid to the
Person in whose name this Security (or any Predecessor Securities) is registered
at the close of business on the Regular Record Date for such interest, which
shall be the [ ] or [ ] (whether or not a Business Day), as the case may be,
next preceding such Interest Payment Date. Any such interest not so punctually
paid or duly provided for shall forthwith cease to be payable to the Holder on
the relevant Regular Record Date, and may either be paid to the Person in whose
name this Security (or any Predecessor Securities) is registered at the close of
business on a Special Record Date for the payment of such Defaulted Interest to
be fixed by the Trustee, notice whereof shall be given to Holders of Securities
not less than 10 days prior to such Special Record Date, or be paid at any time
in any other lawful manner not inconsistent with the requirements of any
securities exchange on which the Securities may be listed, and upon such notice
as may be required by such exchange, all as more fully provided in said
Indenture.
Payment of the principal of, Tax Redemption Price and Additional
Amounts with respect to, and interest on, this Security, and exchange or
transfer of this Security, will be made at the office or agency of the Issuer in
The City of New York maintained for that purpose (which initially will be the
Corporate Trust Office of the Trustee), or at such other office or agency as may
be maintained for such purpose, in such coin or currency of the United States of
America as at the time of payment is legal tender for payment of public and
private debts; provided, however, that payment of interest may be made at the
option of the Issuer by check mailed to the address of the Person entitled
thereto as such address shall appear on the Security Register.
Additional Amounts in respect of principal and interest, if any, may
be made by the Company under circumstances relating to tax withholding by
certain foreign jurisdictions, such circumstances set forth in Section 301 of
the Indenture.
B-2
Except with respect to a Tax Redemption pursuant to Article Thirteen
of the Indenture, the Securities shall not be subject to redemption prior to
Maturity and shall not have the benefit of any sinking fund obligations.
Reference is hereby made to the further provisions of this Security
set forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
This Security is entitled to the benefits of the Company Guarantees of
the punctual payment when due of the Indenture Obligations made in favor of the
Trustee for the benefit of the Holders, which Company Guarantees are subject to
release. Reference is hereby made to Article Eleven of the Indenture for a
statement of the respective rights, limitations of rights, duties and
obligations under the Company Guarantees. Each Holder, by holding this Security,
agrees to all terms and provisions of the Company Guarantees.
Unless the certificate of authentication hereon has been duly executed
by the Trustee referred to on the reverse hereof or by the authenticating agent
appointed as provided in the Indenture by manual signature of an authorized
signer, this Security shall not be entitled to any benefit under the Indenture,
or be valid or obligatory for any purpose.
IN WITNESS WHEREOF, the Issuer has caused this instrument to be duly
executed by the manual or facsimile signature of its authorized officers and its
corporate seal to be affixed or reproduced hereon.
MILLENNIUM AMERICA INC.
By: _____________________________________
[SEAL] Name:
Title:
Attest:
_______________________________________
Authorized Officer
B-3
FORM OF REVERSE OF SECURITIES
MILLENNIUM AMERICA INC.
[ ]% SENIOR DEBENTURE DUE NOVEMBER __, 2026
This Security is one of a duly authorized issue of Securities of the
Issuer designated as its [ ]% Senior Debentures Due November __, 2026 (the
"Securities"), limited (except as otherwise provided in the Indenture referred
to below) in aggregate principal amount to $[ ], issued under and
subject to the terms of an indenture (the "Indenture") dated as of
[ ], among the Issuer, Millennium Chemicals Inc. (the "Company",
which term includes any successor corporation under the Indenture) and The Bank
of New York, as trustee (the "Trustee", which term includes any successor
trustee under the Indenture), to which Indenture and all indentures supplemental
thereto reference is hereby made for a statement of the respective rights,
limitations of rights, duties, obligations and immunities thereunder of the
Issuer, the Company, the Trustee and the Holders of the Securities, and of the
terms upon which the Securities, with the Company Guarantees endorsed thereon,
are, and are to be, authenticated and delivered.
The Indenture contains provisions for defeasance at any time of (a)
the entire Debt on the Securities, and (b) certain restrictive covenants, in
each case upon compliance with certain conditions set forth therein.
If an Event of Default shall occur and be continuing, the principal
amount of all the Securities may be declared due and payable in the manner and
with the effect provided in the Indenture.
The Indenture permits, with certain exceptions (including certain
amendments permitted without the consent of any Holders) as therein provided,
the amendment thereof and the modification of the rights and obligations of the
Issuer and the Company and the rights of the Holders of the Securities under the
Indenture at any time by the Issuer, the Company and the Trustee with the
consent of the Holders of a majority in aggregate principal amount of the
Securities at the time Outstanding. The Indenture also contains provisions
permitting the Holders of specified percentages in aggregate principal amount of
the Securities at the time Outstanding, on behalf of the Holders of all the
Securities, to waive compliance by the Issuer and the Company with certain
provisions of the Indenture and certain past Defaults under the Indenture and
their consequences. Any such consent or waiver by or on behalf of the Holder of
this Security shall be conclusive and binding upon such Holder and upon all
future Holders of this Security and of any Security issued upon the registration
of transfer hereof or in exchange herefor or in lieu hereof, whether or not
notation of such consent or waiver is made upon this Security.
B-4
No reference herein to the Indenture and no provision of this Security
or of the Indenture shall alter or impair the obligation of the Issuer, the
Company or any other obligor on the Securities (if the Company or such other
obligor is obligated to make payments in respect of the Securities), which is
absolute and unconditional, to pay the principal of, Tax Redemption Price and
Additional Amounts with respect to, and interest on, this Security at the times,
place and rate, and in the coin or currency, herein prescribed.
As provided in and subject to the provisions of the Indenture, the
Holder of this Security shall not have the right to institute any proceeding
with respect to the Indenture or for the appointment of a receiver or trustee or
for any other remedy thereunder, unless such Holder shall have previously given
the Trustee written notice of a continuing Event of Default with respect to the
Securities, the Holders of not less than 25% in principal amount of the
Securities at the time Outstanding shall have made written request to the
Trustee to institute proceedings in respect of such Event of Default as Trustee
and offered the Trustee reasonable indemnity and the Trustee shall not have
received from the Holders of a majority in principal amount of Securities at the
time Outstanding a direction inconsistent with such request and shall have
failed to institute any such proceeding for 30 days after receipt of such
notice, request and offer of indemnity. The foregoing shall not apply to certain
suits described in the Indenture, including any suit instituted by the Holder of
this Security for the enforcement of any payment of principal hereof or interest
hereon on or after the respective due dates expressed herein.
No service charge shall be made for any registration of transfer or
exchange of Securities, but the Issuer may require payment of a sum sufficient
to cover any tax or other governmental charge payable in connection therewith.
As provided in the Indenture and subject to certain limitations
therein set forth, the transfer of this Security is registrable in the Security
Register, upon surrender of this Security for registration of transfer at the
office or agency of the Issuer in The City of New York, duly endorsed by, or
accompanied by a written instrument of transfer in form satisfactory to the
Issuer and the Security Registrar duly executed by, the Holder hereof or his
attorney duly authorized in writing, and thereupon one or more new Securities,
of authorized denominations and for the same aggregate principal amount, will be
issued to the designated transferee or transferees.
The Securities are issuable only in registered form without coupons in
denominations of $1,000 and any integral multiple thereof. As provided in the
Indenture and subject to certain limitations therein set forth, Securities are
exchangeable for a like aggregate principal amount of Securities of a different
authorized denomination, as requested by the Holder surrendering the same.
B-5
Prior to due presentment of this Security for registration of
transfer, the Issuer, the Company, the Trustee and any agent of the Issuer, the
Company or the Trustee may treat the Person in whose name this Security is
registered as the owner hereof for all purposes, whether or not this Security is
overdue, and neither the Issuer, the Company, the Trustee nor any such agent
shall be affected by notice to the contrary.
THIS SECURITY SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH
THE LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD TO CONFLICTS OF LAWS
PRINCIPLES THEREOF.
All terms used in this Security which are defined in the Indenture and
not otherwise defined herein shall have the meanings assigned to them in the
Indenture.
Dated: ____________________
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the [ ]% Senior Debentures Due November __, 2026
referred to in the within-mentioned Indenture.
THE BANK OF NEW YORK,
as Trustee
By: _____________________________________
Authorized Signatory
B-6