EXHIBIT 4.8
____________________
FEDERAL-MOGUL CORPORATION,
THE GUARANTORS PARTY HERETO FROM TIME TO TIME,
AND
THE BANK OF NEW YORK,
AS TRUSTEE
_______________
INDENTURE
Dated as of January 20, 1999
_______________
________________________________
TABLE OF CONTENTS
Page
----
ARTICLE I Definitions and Incorporation by Reference.............................................................1
SECTION 1.1. Definitions.........................................................................1
SECTION 1.2. Other Definitions...................................................................9
SECTION 1.3. Incorporation by Reference of Trust Indenture Act...................................9
SECTION 1.4. Rules of Construction..............................................................10
ARTICLE II The Securities.......................................................................................10
SECTION 2.1. Form, Dating and Terms.............................................................10
SECTION 2.2. Execution and Authentication.......................................................19
SECTION 2.3. Registrar and Paying Agent.........................................................20
SECTION 2.4. Paying Agent To Hold Money in Trust................................................20
SECTION 2.5. Securityholder Lists...............................................................21
SECTION 2.6. Transfer and Exchange..............................................................21
SECTION 2.7. Form of Certificate to be Delivered in Connection with Transfers to Institutional
Accredited Investors..............................................................24
SECTION 2.8. Form of Transfers Pursuant to be Delivered in Connection with Transfers Pursuant
to Regulation S...................................................................27
SECTION 2.9. Mutilated, Destroyed, Lost or Stolen Securities....................................29
SECTION 2.10. Temporary Securities...............................................................29
SECTION 2.11. Cancellation.......................................................................30
SECTION 2.12. Payment of Interest; Defaulted Interest............................................30
SECTION 2.13. Computation of Interest............................................................31
SECTION 2.14. CUSIP Numbers......................................................................31
ARTICLE III Covenants...........................................................................................31
SECTION 3.1. Payment of Principal, Premium, if any, and Interest, if any........................31
SECTION 3.2. Maintenance of Office or Agency....................................................32
SECTION 3.3. Money for Securities Payments to be Held in Trust; Unclaimed Money.................32
SECTION 3.4. Corporate Existence................................................................33
SECTION 3.5. Reports by the Company.............................................................33
SECTION 3.6. Annual Review Certificate; Notice of Defaults or Events of Default.................34
SECTION 3.7. Books of Record and Account........................................................34
SECTION 3.8. Limitation on Liens................................................................35
SECTION 3.9. Limitation on Sale and Lease-Back Transactions.....................................36
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ARTICLE IV Consolidation, Merger or Sale by the Company.........................................................37
SECTION 4.1. Consolidation, Merger or Sale of Assets Permitted..................................37
ARTICLE V Redemption of Securities..............................................................................38
SECTION 5.1. Applicability of Article...........................................................38
SECTION 5.2. Election to Redeem; Notice to Trustee..............................................38
SECTION 5.3. Selection of Securities to be Redeemed.............................................38
SECTION 5.4. Notice of Redemption...............................................................39
SECTION 5.5. Deposit of Redemption Price........................................................40
SECTION 5.6. Securities Payable on Redemption Date..............................................40
SECTION 5.7. Securities Redeemed in Part........................................................40
ARTICLE VI Defaults and Remedies................................................................................41
SECTION 6.1. Events of Default..................................................................41
SECTION 6.2. Acceleration; Rescission and Annulment.............................................42
SECTION 6.3. Collection of Indebtedness and Suits for Enforcement by Trustee....................43
SECTION 6.4. Trustee May File Proofs of Claim...................................................43
SECTION 6.5. Trustee May Enforce Claims Without Possession of Securities........................43
SECTION 6.6. Delay or Omission Not Waiver.......................................................44
SECTION 6.7. Waiver of Past Defaults............................................................44
SECTION 6.8. Control by Majority................................................................44
SECTION 6.9. Limitation on Suits by Holders.....................................................44
SECTION 6.10. Rights of Holders to Receive Payment...............................................45
SECTION 6.11. Application of Money Collected.....................................................45
SECTION 6.12. Restoration of Rights and Remedies.................................................46
SECTION 6.13. Rights and Remedies Cumulative.....................................................46
SECTION 6.14. Waiver of Usury, Stay or Extension Laws............................................46
SECTION 6.15. Undertaking for Costs..............................................................47
ARTICLE VII Trustee.............................................................................................47
SECTION 7.1. Certain Duties and Responsibilities of the Trustee.................................47
SECTION 7.2. Rights of Trustee..................................................................47
SECTION 7.3. Trustee May Hold Securities........................................................48
SECTION 7.4. Money Held in Trust................................................................48
SECTION 7.5. Trustee's Disclaimer...............................................................49
SECTION 7.6. Notice of Defaults.................................................................49
SECTION 7.7. Reports by Trustee to Holders......................................................49
SECTION 7.8. Securityholder Lists...............................................................49
SECTION 7.9. Compensation and Indemnity.........................................................49
SECTION 7.10. Replacement of Trustee.............................................................50
SECTION 7.11. Acceptance of Appointment by Successor.............................................52
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SECTION 7.12. Eligibility; Disqualification......................................................53
SECTION 7.13. Merger, Conversion, Consolidation or Succession to Business........................53
SECTION 7.14. Appointment of Authenticating Agent................................................53
ARTICLE VIII Discharge of Indenture; Defeasance.................................................................55
SECTION 8.1. Termination of Company's and Guarantors' Obligations Under this Indenture...........55
SECTION 8.2. Application of Trust Funds.........................................................56
SECTION 8.3. Applicability of Defeasance Provisions; Company's Option to Effect Defeasance
or Covenant Defeasance............................................................56
SECTION 8.4. Defeasance and Discharge...........................................................56
SECTION 8.5. Covenant Defeasance................................................................57
SECTION 8.6. Conditions to Defeasance or Covenant Defeasance....................................57
SECTION 8.7. Deposited Money and Government Obligations to be Held in Trust.....................59
SECTION 8.8. Repayment to Company................................................................59
SECTION 8.9. Indemnity for Government Obligations...............................................59
ARTICLE IX Supplemental Indentures..............................................................................59
SECTION 9.1. Supplemental Indentures Without Consent of Holders.................................59
SECTION 9.2. Supplemental Indentures with Consent of Holders....................................60
SECTION 9.3. Compliance With Trust Indenture Act................................................62
SECTION 9.4. Execution of Supplemental Indentures...............................................62
SECTION 9.5. Effect of Supplemental Indentures..................................................62
SECTION 9.6. Reference in Securities to Supplemental Indentures.................................62
ARTICLE X Guarantees............................................................................................62
SECTION 10.1. Guarantees.........................................................................62
SECTION 10.2 Obligations of Guarantors Unconditional............................................64
SECTION 10.3. Limitation on Guarantors' Liability.................................................64
SECTION 10.4. Releases of Guarantees.............................................................65
SECTION 10.5. Application of Certain Terms and Provisions to Guarantors..........................65
SECTION 10.6. Additional Guarantors..............................................................66
ARTICLE XI Miscellaneous........................................................................................66
SECTION 11.1. Trust Indenture Act Controls.......................................................66
SECTION 11.2. Notices............................................................................66
SECTION 11.3. Communication by Holders with other Holders........................................67
SECTION 11.4. Certificate and Opinion as to Conditions Precedent.................................67
SECTION 11.5. Statements Required in Certificate or Opinion......................................67
SECTION 11.6. When Securities Disregarded........................................................68
SECTION 11.7. Rules by Trustee, Paying Agent and Registrar.......................................68
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SECTION 11.8. Legal Holidays.....................................................................68
SECTION 11.9. GOVERNING LAW......................................................................68
SECTION 11.10. No Recourse Against Others.........................................................68
SECTION 11.11. Successors.........................................................................68
SECTION 11.12. Multiple Originals.................................................................69
SECTION 11.13. Variable Provisions................................................................69
SECTION 11.14. Qualification of Indenture.........................................................69
SECTION 11.15. Table of Contents; Headings........................................................69
SECTION 11.16. Separability.......................................................................69
SECTION 11.17. Benefits of Indenture..............................................................69
EXHIBIT A Form of the Initial Security
EXHIBIT B Form of the Exchange Security
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CROSS-REFERENCE TABLE
---------------------
TIA Section Indenture Section
- - ----------- -----------------
310(a)(1).............................................................................. 7.12
(a)(2............................................................................... 7.12
(a)(3).............................................................................. 1.3
(a)(4).............................................................................. 1.3
(b)................................................................................. 7.10; 7.12
311(a)................................................................................. 1.3
(b)................................................................................. 1.3
312(a)................................................................................. 7.8
(b)................................................................................. 11.3
(c)................................................................................. 11.3
313(a)................................................................................. 7.7
(b)................................................................................. 7.7
(c)................................................................................. 7.7
(d)................................................................................. 7.7
314(a)................................................................................. 3.5; 3.6
(b)................................................................................. 3.5
(c)................................................................................. 11.4
(d)................................................................................. 3.5
(e)................................................................................. 11.5
315(a)................................................................................. 7.1
(b)................................................................................. 7.6
(c)................................................................................. 7.1
(d)................................................................................. 7.1
(e)................................................................................. 6.15
316(a)(last............................................................................ 11.6
sentence)
(a)(1)(A)........................................................................... 6.2; 6.8
(a)(1)(B)........................................................................... 6.7
(a)(2).............................................................................. 1.3
(b)................................................................................. 6.9; 6.10
317(a)(1).............................................................................. 6.3
(a)(2).............................................................................. 6.4
(b)................................................................................. 3.3
318(a)................................................................................. 11.1
Note: This Cross-Reference Table shall not, for any purpose, be deemed to be
part of this Indenture.
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INDENTURE dated as of January 20, 1999, among Federal-Mogul
Corporation, a Michigan corporation (the "Company"), the companies listed on the
signature pages hereto that are subsidiaries of the Company (the "Guarantors")
and The Bank Of New York, a New York banking corporation, as trustee (the
"Trustee").
Each party agrees as follows for the benefit of the other parties and
for the equal and ratable benefit of the Holders of (i) the Company's 7 3/8%
Notes due 2006 and the Company's 7 1/2% Notes due 2009 (together, the "Initial
Securities"), (ii) if and when issued in exchange for Initial Securities as
provided in the Registration Rights Agreement (as hereinafter defined), the
Company's 7 3/8% Notes due 2006 and the Company's 7 1/2% Notes due 2009
(together, the "Exchange Securities") and (iii) if and when issued as provided
in the Registration Rights Agreement, the Private Exchange Securities (as
defined in the Registration Rights Agreement; together with Initial Securities
and Exchange Securities, the "Securities").
ARTICLE I
Definitions and Incorporation by Reference
------------------------------------------
SECTION 1.1. Definitions.
-----------
"1997 Credit Agreement" means the Second Amended and Restated Credit
Agreement among the Company, The Chase Manhattan Bank as Administrative Agent
and the lenders thereunder, dated as of December 18, 1997, as amended from time
to time.
"1998 Credit Agreements" means (i) the Loan Agreement among the
Company, The Chase Manhattan Bank as Administrative Agent and the lenders
thereunder, dated as of September 30, 1998, as amended from time to time, and
(ii) the 364-Day Revolving Credit Agreement among the Company, The Chase
Manhattan Bank as Administrative Agent and the lenders thereunder, dated as of
September 30, 1998, as amended from time to time.
"Affiliate" of any specified Person means any other Person directly or
indirectly controlling or controlled by or under direct or indirect common
control with such specified Person. For the purposes of this definition,
"control" when used with respect to any specified Person means the power to
direct the management and policies of such Person, directly or indirectly,
whether through the ownership of voting securities, by contract or otherwise;
and the terms "controlling" and "controlled" have meanings correlative to the
foregoing.
"Attributable Debt," when used in connection with a Sale and Lease-
Back Transaction, shall mean, as of any particular time, the lesser of (i) the
fair value (as determined by the Board of Directors) of the property subject to
such arrangement and (ii) the then present value (computed by discounting at the
Composite Rate) of the obligation of a lessee for net rental payments during the
remaining term of any lease in respect of such property (including any period
for which such lease has been extended or may, at the option of the lessor, be
extended). The terms "net rental payments" under any lease for any period shall
mean the sum of the rental
payments required to be paid in such period by the lessee thereunder, not
including, however, any amounts required to be paid by such lessee (whether or
not designated as rental or additional rental) on account of maintenance and
repairs, insurance, taxes, assessments, water rates or similar charges required
to be paid by such lessee thereunder or any amounts required to be paid by such
lessee thereunder contingent upon the amount of sales, maintenance and repairs,
insurance, taxes, assessments, water rates or similar charges.
"Authenticating Agent" means any authenticating agent appointed by the
Trustee pursuant to Section 7.14.
"Authorized Newspaper" means a newspaper in the official language of
the country of publication or in the English language, customarily published on
each Business Day whether or not published on Saturdays, Sundays or holidays,
and of general circulation in the place in connection with which the term is
used or in the financial community of such place. Whenever successive
publications in an Authorized Newspaper are required hereunder they may be made
on any Business Day and in the same or different Authorized Newspapers.
"Board" or "Board of Directors" means the Board of Directors of the
Company, the Executive Committee or any other duly authorized committee thereof.
"Board Resolution" means a copy of a resolution of the Board of
Directors or the equivalent body of any Guarantor, as applicable, certified by
the Secretary or an Assistant Secretary of the Company, or the equivalent
officer of any Guarantor, as applicable, to have been duly adopted by the Board
of Directors or the equivalent body of any Guarantor, as applicable, and to be
in full force and effect on the date of the certificate, and delivered to the
Trustee.
"Business Day", when used with respect to any Place of Payment or any
other particular location referred to in this Indenture or in the Securities,
means each Monday, Tuesday, Wednesday, Thursday and Friday which is not a day on
which banking institutions in that Place of Payment or particular location are
authorized or obligated by law or executive order to close.
"Closing Date" means the date on which the Initial Securities are
issued.
"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.
"Company" means Federal-Mogul Corporation or a successor corporation.
"Company Order" and "Company Request" mean, respectively, a written
order or request signed in the name of the Company by two Officers, one of whom
must be the Chairman of the Board, the President, the Chief Financial Officer,
any Executive Vice President, Senior Vice President or Vice President, the
Treasurer, any Assistant Treasurer or the Controller of the Company.
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"Composite Rate" means, as of any particular time, the rate of
interest, per annum, compounded semiannually, equal to the sum of the rates of
interest borne by each of the Securities Outstanding under this Indenture, as
specified on the face of each of the Securities.
"Consolidated Assets" means the Company's assets, determined in
accordance with GAAP and consolidated for financial reporting purposes in
accordance with GAAP, such assets to be valued at book value.
"Corporate Trust Office" means the office of the Trustee in which at
any particular time its corporate trust business shall be principally
administered, which office at the date hereof is located at 101 Barclay Street,
New York, New York 10286, Attention: Corporate Trust Administration.
"Credit Agreements" means the 1997 Credit Agreement and the 1998
Credit Agreements.
"Debt" means indebtedness for money borrowed.
"Default" means any event which is, or after notice or passage of time
or both would be, an Event of Default.
"Defaulted Interest" shall have the meaning set forth in Section 2.12.
"Definitive Securities" means certificated Securities, including
Institutional Accredited Investor Notes.
"DTC" means The Depository Trust Company, its nominees and their
respective successors and assigns, or such other depository institution
hereinafter appointed by the Company.
"Exchange Act" means the Securities Exchange Act of 1934, as amended.
"Exchange Offer" shall have the meaning set forth in the Registration
Rights Agreement.
"Exchange Securities" has the meaning ascribed to it in the second
introductory paragraph of this Indenture.
"Funded Indebtedness" means all Indebtedness of the Company and its
Restricted Subsidiaries maturing by its terms more than one year after, or which
is renewable or extendable at the option of the Company for a period ending more
than one year after, the date as of which Funded Indebtedness is being
determined.
"GAAP" means such accounting principles as are generally accepted in
the United States at the date of this Indenture.
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"Government Obligations" means securities which are (i) direct
obligations of the United States, for the 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, the payment of
which is unconditionally guaranteed as a full faith and credit obligation by the
United States, which are not callable or redeemable at the option of the issuer
thereof, and shall also include a depositary receipt issued by a bank or trust
company as custodian with respect to any such Government Obligation or a
specific payment of interest on or principal of any such Government Obligation
held by such custodian for the account of the holder of a depositary 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 depositary
receipt from any amount received by the custodian in respect of the Government
Obligation evidenced by such depositary receipt.
"Guarantee" means the guarantee of the Securities by each Guarantor
under Article X hereof.
"Guarantors" means (i) the Subsidiaries of the Company which have
executed this Indenture as a Guarantor as of the date hereof, and (ii) each of
the Company's Subsidiaries, whether formed, created or acquired after the
Closing Date, which become a guarantor of Securities pursuant to the provisions
of this Indenture.
"Holder" or "Securityholder" means the Person in whose name a Security
is registered in the Note Register.
"Indebtedness" means, without duplication, (i) all obligations in
respect of borrowed money or for the deferred purchase or acquisition price of
property (including all types of real, personal, tangible, intangible or mixed
property) or services (excluding trade accounts payable, deferred taxes and
accrued liabilities which arise in the ordinary course of business) which are,
in accordance with GAAP, includible as a liability on a balance sheet
consolidated for financial reporting purposes in accordance with GAAP, (ii) all
amounts representing the capitalization of rental obligations in accordance with
GAAP, and (iii) all Contingent Obligations with respect to the foregoing; for
purposes of clause (iii), "Contingent Obligation" means, as to any Person, any
obligation of such Person guaranteeing or in effect guaranteeing any
Indebtedness, leases, dividends or other obligations ("primary obligations") of
any other Person (the "primary obligor") in any manner, whether directly or
indirectly, including, without limitation, any obligation of such Person,
whether or not contingent, (a) to purchase any such primary obligation or any
property constituting direct or indirect security therefor, (b) to advance or
supply funds (1) for the purchase or payment of any such primary obligation or
(2) to maintain working capital or equity capital of the primary obligor or
otherwise to maintain the net worth or solvency of the primary obligor, (c) to
purchase property, securities or services primarily for the purpose of assuring
the beneficiary of any such primary obligation of the ability of the primary
obligor to make payment of such primary obligation or (d) otherwise to assure or
hold harmless the beneficiary of such primary obligation against loss in respect
thereof; provided, however, that the term "Contingent Obligation" shall not
-------- -------
include the endorsement of instruments for deposit or collection in the ordinary
course of business. The term "Contingent Obligation" shall also
4
include the liability of a general partner in respect of the primary obligations
of a partnership in which it is a general partner. The amount of any Contingent
Obligation of a Person shall be deemed to be an amount equal to the principal
amount of the primary obligation in respect to which such Contingent Obligation
is made.
"Indenture" means this Indenture as originally executed or as amended
or supplemented from time to time and shall include the forms and terms of each
series of Securities established as contemplated hereunder.
"Initial Securities" means the Company's 7 3/8% Notes due 2006 and the
Company's 7 1/2% Notes due 2009, each issued on the Closing Date.
"Legal Holiday" has the meaning ascribed to it in Section 11.8.
"Maturity", when used with respect to any Security, means the date on
which the principal of such Security becomes due and payable as therein or
herein provided, whether at the Stated Maturity or by declaration of
acceleration, call for redemption or otherwise.
"Non-U.S. Person" means a person who is not a U.S. person, as defined
in Regulation S.
"Note Register" means the register of Securities, maintained by the
Registrar, pursuant to Section 2.3.
"Obligations" means any principal, premiums, interest, penalties,
fees, indemnifications, reimbursements, damages and other liabilities payable
under the documentation governing any indebtedness.
"Officer" means the Chairman of the Board, the President, the Chief
Financial Officer, any Executive Vice President, Senior Vice President or Vice
President, the Treasurer, any Assistant Treasurer, the Controller, the Secretary
or any Assistant Secretary.
"Officers' Certificate", when used with respect to the Company, means
a certificate signed by two Officers, one of whom must be the Chairman of the
Board, the President, the Chief Financial Officer, any Executive Vice President,
Senior Vice President or Vice President, the Treasurer, any Assistant Treasurer
or the Controller of the Company.
"Opinion of Counsel" means a written opinion from the General Counsel
or the Associate General Counsel of the Company or other legal counsel who is
reasonably acceptable to the Trustee. Such other counsel may be an employee of
or counsel to the Company.
"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;
5
(b) Securities, or portions thereof, for whose payment or redemption money or
Government Obligations in the necessary amount has been theretofore
deposited with the Trustee or any Paying Agent (other than the Company) in
trust or set aside and segregated in trust (if the Company shall act as
its own Paying Agent) for the Holders of such Securities; provided that,
if such Securities are to be redeemed, notice of such redemption has been
duly given pursuant to this Indenture or provisions therefor satisfactory
to the Trustee have been made;
(c) Securities, except to the extent provided in Sections 8.4 and 8.5, with
respect to which the Company has effected defeasance and/or covenant
defeasance as provided in Article VIII; and
(d) Securities which have been paid pursuant to Section 2.9 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 proof satisfactory to
it that such Securities are held by a bona fide purchaser in whose hands
such Securities are valid obligations of the Company;
provided, however, that in determining whether the Holders of the requisite
- - -------- -------
principal amount of the Outstanding Securities have given any request, demand,
authorization, direction, notice, consent or waiver hereunder, or whether
sufficient funds are available for redemption or for any other purpose and for
the purpose of making the calculations required by Section 313 of the Trust
Indenture Act, Securities owned by the Company or any other obligor upon the
Securities or any Affiliate of the Company or of such other obligor shall be
disregarded and deemed not to be Outstanding, except that, in determining
whether the Trustee shall be protected in making such calculation or in relying
upon any such request, demand, authorization, direction, notice, consent or
waiver, only Securities which the Trustee 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 satisfaction of the
Trustee the pledgee's right so to act with respect to such Securities and that
the pledgee is not the Company or any other obligor upon the Securities or any
Affiliate of the Company or of such other obligor.
"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.
"Place of Payment", when used with respect to the Securities of or
within any series, means the place or places where the principal of, premium, if
any, and interest, if any, and any other payments on such Securities are payable
as specified as contemplated by Section 2.3.
"Preferred Stock" means any and all shares of series and classes of
stock of the Company designated as preferred stock, whether voting or non-
voting, and whether now outstanding or issued after the date of this Indenture.
"Principal Property" means the principal manufacturing facilities
owned by the Company or a Restricted Subsidiary located in the United States,
except such as the Board of
6
Directors, in its good faith opinion, reasonably determines is not significant
to the business, financial condition and earnings of the Company and its
consolidated Subsidiaries taken as a whole, as evidenced by a Board Resolution,
and except for: (i) any and all personal property including, without limitation,
(a) motor vehicles and other rolling stock, and (b) office furnishings and
equipment and information and electronic data processing equipment, (ii) any
property financed through obligations issued by state, territory or possession
of the United States, or any political subdivision or instrumentality of the
foregoing, or (iii) any real property held for development or sale.
"Private Exchange Securities" shall have the meaning set forth in the
Registration Rights Agreement relating to the Initial Securities.
"QIB" means any "qualified institutional buyer" (as defined in Rule
144A under the Securities Act).
"Redemption Date", when used with respect to any Security to be
redeemed, means the date fixed for such redemption by or pursuant to this
Indenture.
"Redemption Price", when used with respect to any Security to be
redeemed, in whole or in part, means the price at which it is to be redeemed
pursuant to this Indenture.
"Registration Rights Agreement" means the Registration Rights
Agreement, dated as of January 20, 1999, as amended from time to time, among the
Company, Merrill, Lynch, Pierce, Fenner & Smith Incorporated and Chase
Securities Inc.
"Responsible Officer", when used with respect to the Trustee, shall
mean any officer within the corporate trust department of the Trustee, including
any vice president, any assistant vice president, any assistant secretary, any
assistant treasurer, any trust officer, or any other officer of the Trustee
customarily performing functions similar to those performed by the persons who
at the time shall be such officers, respectively, or to whom any corporate trust
matter is referred because of such officer's knowledge of and familiarity with a
particular subject and who shall have direct responsibility for the
administration of this Indenture.
"Restricted Period" means the 40 consecutive days beginning on and
including the later of (A) the day on which the Initial Securities are offered
to persons other than distributors (as defined in Regulation S under the
Securities Act) and (B) the Closing Date.
"Restricted Securities Legend" means the Private Placement Legend set
forth in clause (A) of Section 2.1(c) or the Regulation S Legend set forth in
clause (B) of Section 2.1(c), as applicable.
"Restricted Subsidiary" means any consolidated Subsidiary that owns
any Principal Property.
"Securities" means the collective reference to the Initial Securities,
Exchange Securities and Private Exchange Securities.
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"Securities Act" means the Securities Act of 1933, as amended
"Securities Custodian" means the custodian with respect to the Global
Security (as appointed by DTC), or any successor Person thereto and shall
initially be the Trustee.
"Series", when used with respect to the Securities, means each of (i)
the Initial Securities due 2006, the Exchange Securities due 2006 and the
Private Exchange Securities due 2006, collectively; and (ii) the Initial
Securities due 2009, the Exchange Securities due 2009 and the Private Exchange
Securities due 2009, collectively.
"Stated Maturity", when used with respect to any Security, means the
date specified in such Security as the fixed date on which the principal of such
Security is due and payable.
"Subsidiary" means a corporation more than 50% of the outstanding
voting stock of which is owned, directly or indirectly, by the Company or by one
or more other Subsidiaries, or by the Company and one or more other
Subsidiaries. For the purposes of this definition, "voting stock" means stock
which ordinarily has voting power for the election of directors, whether at all
times or only so long as no senior class of stock has such voting power by
reason of any contingency.
"TIA" or "Trust Indenture Act" means the Trust Indenture Act of 1939
as in effect on the date of this Indenture, except as provided in Section 9.3.
"Total Assets" means, at any date, the total assets appearing on the
most recently prepared consolidated balance sheet of the Company and its
consolidated Subsidiaries as at the end of a fiscal quarter of the Company,
prepared in accordance with generally accepted accounting principles.
"Trustee" means the party named as such in the first paragraph of this
Indenture until a successor Trustee replaces it pursuant to the applicable
provisions of this Indenture, and thereafter means such successor Trustee and
if, at any time, there is more than one Trustee, "Trustee" as used with respect
to the Securities of any series shall mean the Trustee with respect to the
Securities of that series.
"United States" means the United States of America (including the
States and the District of Columbia), its territories, its possessions and other
areas subject to its jurisdiction.
"Western Europe" means Austria, Belgium, Denmark, France, Germany,
Ireland, Italy, Luxembourg, the Netherlands, Norway, Portugal, Spain, Sweden,
Switzerland and the United Kingdom and Northern Ireland.
8
SECTION 1.2. Other Definitions.
-----------------
Term Defined in
---- Section
-------
"Agent Member"...................................... 2.1(d)
"Bankruptcy Law".................................... 6.1
"Custodian"......................................... 6.1
"Definitive Securities"............................. 2.1(e)
"Event of Default".................................. 6.1
"Exchange Global Note".............................. 2.1(a)
"Global Securities"................................. 2.1(a)
"IAIs".............................................. 2.1(a)
"Institutional Accredited Investor Note"............ 2.1(a)
"Notice of Default"................................. 6.1(c)
"Paying Agent"...................................... 2.3
"Private Placement Legend".......................... 2.1(c)
"Registrar"......................................... 2.3
"Regulation S"...................................... 2.1(a)
"Regulation S Certificate".......................... 2.1(a)
"Regulation S Global Note".......................... 2.1(a)
"Regulation S Legend"............................... 2.1(c)
"Regulation S Note"................................. 2.1(a)
"Regulation S Permanent Global Note"................ 2.1(a)
"Regulation S Temporary Global Note"................ 2.1(a)
"Release Date"...................................... 2.1(a)
"Resale Restriction Termination Date"............... 2.6
"Rule 144A"......................................... 2.1(a)
"Rule 144A Global Note"............................. 2.1(a)
"Rule 144A Note".................................... 2.1(a)
"Sale and Lease-back Transaction"................... 3.9
"Special Record Date"............................... 2.12
SECTION 1.3. Incorporation by Reference of Trust Indenture Act. This
Indenture is subject to the mandatory provisions of the TIA which are
incorporated by reference in and made a part of this Indenture. The following
TIA terms have the following meanings:
"indenture securities" means the Securities.
"indenture security holder" means a Securityholder.
"indenture to be qualified" means this Indenture.
"indenture trustee" or "institutional trustee" means the Trustee.
9
"obligor" on the indenture securities means the Company and any other
obligor on the indenture securities.
All other TIA terms used in this Indenture that are defined by the
TIA, defined in the TIA by reference to another statute or defined by the
Commission rules have the meanings assigned to them by such definitions.
SECTION 1.4 Rules of Construction. For all purposes of this
---------------------
Indenture, except as otherwise expressly provided or unless the context
otherwise requires:
(a) a term has the meaning assigned to it;
(b) an accounting term not otherwise defined has the meaning assigned to
it in accordance with GAAP;
(c) "or" is not exclusive;
(d) "including" means including without limitation;
(e) words in the singular include the plural and words in the plural
include the singular; and
(f) 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.
ARTICLE II
The Securities
--------------
SECTION 2.1. Form, Dating and Terms. (a) The Initial Securities
----------------------
are being offered and sold by the Company pursuant to a Purchase Agreement,
dated January 14, 1999, among the Company, the Guarantors, Merrill Lynch,
Pierce, Fenner & Smith Incorporated and Chase Securities Inc. The Initial
Securities will be resold initially only to (A) qualified institutional buyers
(as defined in Rule 144A under the Securities Act ("Rule 144A")) in reliance on
Rule 144A ("QIBs") (B) institutional "accredited investors" (as defined in Rules
501(a)(1), (2), (3) and (7) under the Securities Act) who are not QIBs
("IAIs")and (C) Persons other than U.S. Persons (as defined in Regulation S
under the Securities Act ("Regulation S")) in reliance on Regulation S. Such
Initial Securities may thereafter be transferred to among others, QIBs,
purchasers in reliance on Regulation S and IAIs in accordance with Rule 501 of
the Securities Act in accordance with the procedure described herein.
Initial Securities of each series offered and sold to QIBs in the
United States of America in reliance on Rule 144A (each, a "Rule 144A Note")
will be issued on the Closing Date in the form of a permanent global Security,
without interest coupons, substantially in the form of Exhibit A, which is
hereby incorporated by reference and made a part of this Indenture,
10
including appropriate legends as set forth in Section 2.1(c) (each, a "Rule 144A
Global Note"), deposited with the Trustee, as custodian for DTC, duly executed
by the Company and authenticated by the Trustee as hereinafter provided. The
Rule 144A Global Note for each series may be represented by more than one
certificate, if so required by DTC's rules regarding the maximum principal
amount to be represented by a single certificate. The aggregate principal amount
of the Rule 144A Global Note for each series may from time to time be increased
or decreased by adjustments made on the records of the Trustee, as custodian for
DTC or its nominee, as hereinafter provided.
Initial Securities of each series offered and sold outside the United
States of America (each, a "Regulation S Note") in reliance on Regulation S will
be issued on the Closing Date in the form of a temporary global Security,
without interest coupons, substantially in the form set forth in Exhibit A which
is hereby incorporated by reference and made a part of this Indenture, including
appropriate legends as set forth in Section 2.1(c) (each, a "Regulation S
Temporary Global Note"). Beneficial interests in the Regulation S Temporary
Global Note of each series will be exchangeable for beneficial interests in a
single permanent global security for such series (each, a "Regulation S
Permanent Global Note", together with the applicable Regulation S Temporary
Global Note for such series, the "Regulation S Global Note" for such series) on
or within a reasonable period after the expiration of the Restricted Period (the
"Release Date") upon the receipt by the Trustee or its agent of a certificate (a
"Regulation S Certificate") certifying that the Holder of the beneficial
interest in the Regulation S Temporary Global Note of such series is a non-
United States Person within the meaning of Regulation S. Upon receipt by the
Trustee or Paying Agent of a Regulation S Certificate for any series, (i) with
respect to the first such Regulation S Certificate, the Company shall execute
and upon receipt of a Company Order for authentication, the Authenticating Agent
shall authenticate and deliver to the custodian, the applicable Regulation S
Permanent Global Note for such series and (ii) with respect to the first and all
subsequent Regulation S Certificates, the custodian shall exchange on behalf of
the applicable beneficial owners the portion of the applicable Regulation S
Temporary Global Note of such series covered by such Regulation S Certificates
for a comparable portion of the applicable Regulation S Permanent Global Note
for such series. Upon any exchange of a portion of a Regulation S Temporary
Global Note of any series for a comparable portion of a Regulation S Permanent
Global Note for such series, the custodian shall endorse on the schedules
affixed to each of such Regulation S Global Note (or on continuations of such
schedules affixed to each of such Regulation S Global Note and made parts
thereof) appropriate notations evidencing the date of transfer and (x) with
respect to the applicable Regulation S Temporary Global Note for such series, a
decrease in the principal amount thereof equal to the amount covered by the
applicable certification and (y) with respect to the applicable Regulation S
Permanent Global Note for such series, an increase in the principal amount
thereof equal to the principal amount of the decrease in the applicable
Regulation S Temporary Global Note pursuant to clause (x) above.
The Regulation S Global Note of each series will be deposited with the
Trustee, as custodian for DTC, duly executed by the Company and authenticated by
the Trustee as hereinafter provided. The Regulation S Global Note of each
series may be represented by more than one certificate, if so required by DTC's
rules regarding the maximum principal amount to be represented by a single
certificate. The aggregate principal amount of the Regulation S Global
11
Note of each series may from time to time be increased or decreased by
adjustments made on the records of the Trustee, as custodian for DTC or its
nominee, as hereinafter provided.
Initial Securities of each series offered and sold to IAIs in the
United States of America will be issued on the Closing Date in non-global, fully
registered form, without interest coupons, substantially in the form set forth
in Exhibit A, which is hereby incorporated by reference and made a part of this
Indenture, including appropriate legends as set forth in Section 2.1(c), duly
executed by the Company and authenticated by the Trustee as hereinafter provided
(each, an "Institutional Accredited Investor Note"). Upon such issuance, the
Trustee shall register any such Institutional Accredited Investor Note in the
name of the beneficial owner or owners of such note (or the nominee of such
beneficial owner or owners) and deliver the certificates for such Institutional
Accredited Investor Notes to the respective beneficial owner or owners. Upon
transfer of such Institutional Accredited Investor Notes of any series to a QIB
or to a Non-U.S. Person, such Institutional Accredited Investor Notes of such
series will, unless the Rule 144A Global Note for such series, in the case of a
transfer to a QIB, or the Regulation S Global Note for such series, in the case
of a transfer to a Non-U.S. Person, has previously been exchanged for Definitive
Securities of such series pursuant to Section 2.1(e), be exchanged for an
interest in a Global Security of such series pursuant to the provisions of
Section 2.6.
Exchange Securities of each series exchanged for interests in the Rule
144A Note of such series, the Regulation S Note of such series and the
Institutional Accredited Investor Notes of such series will be issued in the
form of a permanent global Security substantially in the form of Exhibit B,
which is hereby incorporated by reference and made a part of this Indenture,
deposited with the Trustee as hereinafter provided, including the appropriate
legend set forth in Section 2.1(c) (each, a "Exchange Global Note"). The
Exchange Global Note for each series may be represented by more than one
certificate, if so required by DTC's rules regarding the maximum principal
amount to be represented by a single certificate.
Each Rule 144A Global Note for any series, each Regulation S Global
Note for any series and each Exchange Global Note for any series are sometimes
collectively herein referred to as the "Global Securities" for such series.
The principal of (and premium, if any) and interest on the Securities
shall be payable at the office or agency of the Company maintained for such
purpose in the Borough of Manhattan in the City of New York, or at such other
office or agency of the Company as may be maintained for such purpose pursuant
to Section 2.3; provided, however, that, at the option of the Company, each
-------- -------
installment of interest may be paid by check mailed to addresses of the Persons
entitled thereto as such addresses shall appear on the Note Register and;
provided, further, that all payments with respect to the Securities, the Holders
- - -------- -------
of which have given wire transfer instructions to the Company and the Paying
Agent prior to the applicable record date for such payment, will be required to
be made by wire transfer of immediately available funds to the accounts
specified by the Holders thereof. Payments in respect of Securities represented
by a Global Security (including principal, premium and interest) will be made by
wire transfer of immediately available funds to the accounts specified by DTC.
12
The Private Exchange Securities of each series shall be in the form of
Exhibit A. The Securities of each series may have notations, legends or
endorsements required by law, stock exchange rule or usage, in addition to those
set forth on Exhibits A and B and in Section 2.1(c). The Company and the
Trustee shall approve the forms of the Securities and any notation, endorsement
or legend on them. Each Security shall be dated the date of its authentication.
The terms of the Securities set forth in Exhibit A and Exhibit B are part of the
terms of this Indenture and, to the extent applicable, the Company and the
Trustee, by their execution and delivery of this Indenture, expressly agree to
be bound by such terms.
(b) Denominations. The Securities of each series shall be issuable only
-------------
in fully registered form, without interest coupons, and in denominations of
$1,000 and any integral multiple thereof, provided, that each Institutional
--------
Accredited Investor Note shall be in a minimum denomination of $250,000.
(c) Restrictive Legends. Unless and until (i) an Initial Security of any
-------------------
series is sold under an effective registration statement or (ii) an Initial
Security of any series is exchanged for an Exchange Security of such series in
connection with an effective registration statement, in each case pursuant to
the Registration Rights Agreement or a similar agreement,
(A) the Rule 144A Global Note of such series and the Institutional
Accredited Investor Notes of such series shall bear the following legend (the
"Private Placement Legend") on the face thereof:
"THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF
1933, AS AMENDED (THE "SECURITIES ACT"), OR ANY STATE OR OTHER
SECURITIES LAWS. NEITHER THIS SECURITY NOR ANY INTEREST OR
PARTICIPATION HEREIN MAY BE REOFFERED, SOLD, ASSIGNED, TRANSFERRED,
PLEDGED, ENCUMBERED OR OTHERWISE DISPOSED OF IN THE ABSENCE OF SUCH
REGISTRATION OR UNLESS THE TRANSACTION IS EXEMPT FROM, OR NOT SUBJECT
TO, SUCH REGISTRATION. THE HOLDER OF THIS SECURITY BY ITS ACCEPTANCE
HEREOF (1) REPRESENTS THAT (A) IT IS A "QUALIFIED INSTITUTIONAL BUYER"
(AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT) OR (B) IT IS AN
INSTITUTIONAL ACCREDITED INVESTOR (AS DEFINED IN RULE 501(a)(1), (2),
(3) OR (7) UNDER THE SECURITIES ACT) (AN "ACCREDITED INVESTOR") THAT
IS ACQUIRING THE SECURITIES FOR ITS OWN ACCOUNT, OR FOR THE ACCOUNT OF
SUCH INSTITUTIONAL ACCREDITED INVESTOR, FOR INVESTMENT PURPOSES AND
NOT WITH A VIEW TO, OR FOR OFFER OR SALE IN CONNECTION WITH, ANY
DISTRIBUTION IN VIOLATION OF THE SECURITIES ACT, (2) AGREES THAT IT
WILL NOT PRIOR TO (X) THE DATE WHICH IS TWO YEARS AFTER THE LATER OF
THE ORIGINAL ISSUE DATE HEREOF (OR
13
OF ANY PREDECESSOR OF THIS SECURITY) OR THE LAST DAY ON WHICH THE
COMPANY OR ANY AFFILIATE OF THE COMPANY WAS THE OWNER OF THIS SECURITY
OR ANY PREDECESSOR OF THIS SECURITY AND (Y) SUCH LATER DATE, IF ANY,
AS MAY BE REQUIRED BY APPLICABLE LAWS (THE "RESALE RESTRICTION
TERMINATION DATE"), OFFER, SELL OR OTHERWISE TRANSFER THIS SECURITY
EXCEPT (A) TO THE COMPANY OR ANY SUBSIDIARY THEREOF, (B) PURSUANT TO A
REGISTRATION STATEMENT WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE
SECURITIES ACT, (C) FOR SO LONG AS THE SECURITIES ARE ELIGIBLE FOR
RESALE PURSUANT TO RULE 144A, TO A PERSON IT REASONABLY BELIEVES IS A
"QUALIFIED INSTITUTIONAL BUYER" AS DEFINED IN RULE 144A UNDER THE
SECURITIES ACT THAT PURCHASES FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT
OF A QUALIFIED INSTITUTIONAL BUYER TO WHOM NOTICE IS GIVEN THAT THE
TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A, (D) PURSUANT TO
OFFERS AND SALES TO NON-U.S. PERSONS THAT OCCUR OUTSIDE THE UNITED
STATES, PURSUANT TO RULE 904 OF REGULATION S, (E) TO AN ACCREDITED
INVESTOR THAT IS ACQUIRING THE SECURITIES FOR ITS OWN ACCOUNT, OR FOR
THE ACCOUNT OF SUCH INSTITUTIONAL ACCREDITED INVESTOR, FOR INVESTMENT
PURPOSES AND NOT WITH A VIEW TO, OR FOR OFFER OR SALE IN CONNECTION
WITH, ANY DISTRIBUTION IN VIOLATION OF THE SECURITIES ACT, IN EACH
CASE IN A MINIMUM PRINCIPAL AMOUNT OF $250,000 OR (F) PURSUANT TO
ANOTHER AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE
SECURITIES ACT, SUBJECT TO THE RIGHT OF THE COMPANY AND THE TRUSTEE TO
REQUIRE THE DELIVERY OF AN OPINION OF COUNSEL, CERTIFICATIONS AND/OR
INFORMATION SATISFACTORY TO EACH OF THEM PRIOR TO ANY SUCH OFFER, SALE
OR TRANSFER PURSUANT TO CLAUSE (D), (E) OR (F) AND (3) AGREES THAT IT
WILL GIVE TO EACH PERSON TO WHOM THIS SECURITY IS TRANSFERRED A NOTICE
SUBSTANTIALLY TO THE EFFECT OF THIS LEGEND. THIS LEGEND WILL BE
REMOVED UPON THE REQUEST OF THE HOLDER AFTER THE RESALE TRANSACTION
TERMINATION DATE. AS USED HEREIN, THE TERMS "OFFSHORE TRANSACTION",
"UNITED STATES" AND "U.S. PERSON" HAVE THE RESPECTIVE MEANINGS GIVEN
TO THEM BY REGULATION S UNDER THE SECURITIES ACT"; and
(B) the Regulation S Global Note of each series shall bear the
following legend (the "Regulation S Legend") on the face thereof:
14
"THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF
1933, AS AMENDED (THE "SECURITIES ACT"), OR ANY STATE OR OTHER
SECURITIES LAWS. NEITHER THIS SECURITY NOR ANY INTEREST OR
PARTICIPATION HEREIN MAY BE REOFFERED, SOLD, ASSIGNED, TRANSFERRED,
PLEDGED, ENCUMBERED OR OTHERWISE DISPOSED OF IN THE ABSENCE OF SUCH
REGISTRATION OR UNLESS THE TRANSACTION IS EXEMPT FROM, OR NOT SUBJECT
TO, SUCH REGISTRATION. THE HOLDER OF THIS SECURITY BY ITS ACCEPTANCE
HEREOF (1) REPRESENTS THAT IT IS NOT A U.S. PERSON OR PURCHASING FOR
THE ACCOUNT OF A U.S. PERSON AND IS ACQUIRING THIS SECURITY IN AN
"OFFSHORE TRANSACTION" PURSUANT TO RULE 903 OR 904 OF REGULATION S
UNDER THE SECURITIES ACT, (2) AGREES THAT IT WILL NOT PRIOR TO (X) THE
DATE WHICH IS TWO YEARS AFTER THE LATER OF THE ORIGINAL ISSUE DATE
HEREOF (OR OF ANY PREDECESSOR OF THIS SECURITY) OR THE LAST DAY ON
WHICH THE COMPANY OR ANY AFFILIATE OF THE COMPANY WAS THE OWNER OF
THIS SECURITY OR ANY PREDECESSOR OF THIS SECURITY AND (Y) SUCH LATER
DATE, IF ANY, AS MAY BE REQUIRED BY APPLICABLE LAWS, OFFER, SELL OR
OTHERWISE TRANSFER THIS SECURITY EXCEPT (A) TO THE COMPANY OR ANY
SUBSIDIARY THEREOF, (B) PURSUANT TO A REGISTRATION STATEMENT WHICH HAS
BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT, (C) FOR SO LONG AS
THE SECURITIES ARE ELIGIBLE FOR RESALE PURSUANT TO RULE 144A, TO A
PERSON IT REASONABLY BELIEVES IS A "QUALIFIED INSTITUTIONAL BUYER" AS
DEFINED IN RULE 144A UNDER THE SECURITIES ACT THAT PURCHASES FOR ITS
OWN ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER TO
WHOM NOTICE IS GIVEN THAT THE TRANSFER IS BEING MADE IN RELIANCE ON
RULE 144A, (D) PURSUANT TO OFFERS AND SALES TO NON-U.S. PERSONS THAT
OCCUR OUTSIDE THE UNITED STATES, PURSUANT TO RULE 904 OF REGULATION S,
(E) TO AN INSTITUTIONAL ACCREDITED INVESTOR (AS DEFINED IN RULE
501(a)(1), (2), (3) OR (7) UNDER THE SECURITIES ACT) (AN "ACCREDITED
INVESTOR") THAT IS ACQUIRING THE SECURITIES FOR ITS OWN ACCOUNT, OR
FOR THE ACCOUNT OF SUCH INSTITUTIONAL ACCREDITED INVESTOR, FOR
INVESTMENT PURPOSES AND NOT WITH A VIEW TO, OR FOR OFFER OR SALE IN
CONNECTION WITH, ANY DISTRIBUTION IN VIOLATION OF THE SECURITIES ACT,
IN EACH CASE IN A MINIMUM PRINCIPAL AMOUNT OF $250,000 OR (F) PURSUANT
TO ANOTHER AVAILABLE EXEMPTION FROM THE
15
REGISTRATION REQUIREMENTS OF THE SECURITIES ACT, SUBJECT TO THE RIGHT
OF THE COMPANY AND THE TRUSTEE TO REQUIRE THE DELIVERY OF AN OPINION
OF COUNSEL, CERTIFICATIONS AND/OR INFORMATION SATISFACTORY TO EACH OF
THEM PRIOR TO ANY SUCH OFFER, SALE OR TRANSFER PURSUANT TO CLAUSE (D),
(E) OR (F) AND (3) AGREES THAT IT WILL GIVE TO EACH PERSON TO WHOM
THIS SECURITY IS TRANSFERRED A NOTICE SUBSTANTIALLY TO THE EFFECT OF
THIS LEGEND. THIS LEGEND WILL BE REMOVED AFTER 40 CONSECUTIVE DAYS
BEGINNING ON AND INCLUDING THE LATER OF (A) THE DAY ON WHICH THE
SECURITIES ARE OFFERED TO PERSONS OTHER THAN DISTRIBUTORS (AS DEFINED
IN REGULATION S) AND (B) THE DATE OF THE CLOSING OF THE ORIGINAL
OFFERING. AS USED HEREIN, THE TERMS "OFFSHORE TRANSACTION", "UNITED
STATES" AND "U.S. PERSON" HAVE THE RESPECTIVE MEANINGS GIVEN TO THEM
BY REGULATION S UNDER THE SECURITIES ACT."
(C) The Global Securities of each series, whether or not an Initial
Security, shall bear the following legend on the face thereof:
"UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE
OF THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), NEW
YORK, NEW YORK, TO THE COMPANY OR ITS AGENT FOR REGISTRATION OF
TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS
REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS
REQUESTED BY AN AUTHORIZED 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.
TRANSFERS OF THIS GLOBAL SECURITY SHALL BE LIMITED TO TRANSFERS IN
WHOLE, BUT NOT IN PART, TO NOMINEES OF DTC OR TO A SUCCESSOR THEREOF
OR SUCH SUCCESSOR'S NOMINEE AND TRANSFERS OF PORTIONS OF THIS GLOBAL
SECURITY SHALL BE LIMITED TO TRANSFERS MADE IN ACCORDANCE WITH THE
RESTRICTIONS SET FORTH IN THE INDENTURE REFERRED TO ON THE REVERSE
HEREOF."
16
(D) The Regulation S Temporary Global Note of each series shall also
bear the following legend on the face thereof:
THIS GLOBAL NOTE IS A TEMPORARY GLOBAL NOTE FOR PURPOSES OF REGULATION S
UNDER THE UNITED STATES SECURITIES ACT OF 1933, AS AMENDED (THE "1933
ACT"). NEITHER THIS TEMPORARY GLOBAL NOTE NOR ANY INTEREST HEREIN MAY BE
OFFERED, SOLD OR DELIVERED, EXCEPT AS PERMITTED UNDER THE INDENTURE
REFERRED TO BELOW.
NO BENEFICIAL OWNERS OF THIS TEMPORARY GLOBAL NOTE SHALL BE ENTITLED TO
RECEIVE PAYMENT OF PRINCIPAL OR INTEREST HEREON UNLESS THE REQUIRED
CERTIFICATIONS HAVE BEEN DELIVERED PURSUANT TO THE TERMS OF THE INDENTURE.
(E) Each Institutional Accredited Investor Note shall also bear the
following additional legend on the face thereof:
IN CONNECTION WITH ANY TRANSFER, THE HOLDER WILL DELIVER TO THE REGISTRAR
AND TRANSFER AGENT SUCH CERTIFICATES AND OTHER INFORMATION AS SUCH TRANSFER
AGENT MAY REASONABLY REQUIRE TO CONFIRM THAT THE TRANSFER COMPLIED WITH THE
FOREGOING RESTRICTIONS.
(d) Book-Entry Provisions. (i) This Section 2.1(d) shall apply only to
---------------------
Global Securities of each series deposited with the Trustee, as custodian for
DTC.
(ii) Each Global Security for any series initially shall (x) be
registered in the name of DTC or the nominee of DTC, (y) be delivered to
the Trustee as custodian for DTC and (z) bear legends as set forth in
Section 2.1(c).
(iii) Members of, or participants in, DTC ("Agent Members") shall
have no rights under this Indenture with respect to any Global Security
held on their behalf by DTC or by the Trustee as the custodian of DTC or
under such Global Security, and DTC may be treated by the Company, the
Trustee and any agent of the Company or the Trustee as the absolute owner
of such Global Security for all purposes whatsoever. Notwithstanding the
foregoing, nothing herein shall prevent the Company, the Trustee or any
agent of the Company or the Trustee from giving effect to any written
certification, proxy or other authorization furnished by DTC or impair, as
between DTC and its Agent Members, the operation of customary practices of
DTC governing the exercise of the rights of a holder of a beneficial
interest in any Global Security.
(iv) In connection with any transfer of a portion of the beneficial
interest in a Global Security of any series pursuant to subsection (e) of
this Section to beneficial
17
owners who are required to hold Definitive Securities or to IAIs who shall
hold certificated Institutional Accredited Investor Notes pursuant to
Section 2.1(a), the Securities Custodian shall reflect on its books and
records the date and a decrease in the principal amount of such Global
Security in an amount equal to the principal amount of the beneficial
interest in the Global Security to be transferred, and the Company shall
execute, and the Trustee shall authenticate and deliver, one or more
Definitive Securities of like series, tenor and amount.
(v) In connection with the transfer of an entire Global Security of
any series to beneficial owners pursuant to subsection (e) of this Section,
such Global Security shall be deemed to be surrendered to the Trustee for
cancellation, and the Company shall execute, and the Trustee shall
authenticate and deliver, to each beneficial owner identified by DTC in
exchange for its beneficial interest in such Global Security, an equal
aggregate principal amount of Definitive Securities of such series of
authorized denominations.
(vi) The registered holder of a Global Security of any series may
grant proxies and otherwise authorize any person, including Agent Members
and persons that may hold interests through Agent Members, to take any
action which a Holder is entitled to take under this Indenture or the
Securities of such series.
(e) Definitive Securities. (i) Except as provided below, owners of
---------------------
beneficial interests in Global Securities of any series will not be
entitled to receive Definitive Securities of such series. Definitive
Securities of any series shall be transferred to all beneficial owners in
exchange for their beneficial interests in a Global Security of such series
if (a) DTC notifies the Company that it is unwilling or unable to continue
as depositary for such Global Security or DTC ceases to be a clearing
agency registered under the Exchange Act, at a time when DTC is required to
be so registered in order to act as depositary, and in each case a
successor depositary is not appointed by the Company within 90 days of such
notice or (b) the Company executes and delivers to the Trustee and
Registrar an Officers' Certificate stating that such Global Security shall
be so exchangeable or (c) an Event of Default has occurred and is
continuing and the Registrar has received a request from DTC.
(ii) Any Definitive Security of any series delivered in exchange for
an interest in a Global Security of such series pursuant to Section 2.1
(d)(iv) or (v) shall, except as otherwise provided by Section 2.6(c), bear
the applicable legend regarding transfer restrictions applicable to the
Definitive Security set forth in Section 2.1(c).
(iii) In connection with the exchange of a Definitive Security of any
series for a beneficial interest in a Global Security of such series
pursuant to a transfer of an Institutional Accredited Investor Note of such
series to a QIB or a Non-U.S. Person, upon receipt by the Trustee of such
Institutional Accredited Investor Note, duly endorsed or accompanied by
appropriate instruments of transfer in accordance with Section 2.6(a), the
Trustee shall cancel such Institutional Accredited Investor Note and cause,
or direct the Securities Custodian to cause, in accordance with the
standing instructions and
18
procedures existing between DTC and the Securities Custodian, the aggregate
principal amount of Securities of such series represented by the Global
Security of such series to be increased accordingly. If no Global
Securities of such series are then Outstanding, the Company shall issue and
the Trustee shall authenticate, upon written order of the Company in the
form of an Officers' Certificate, a new Global Security for such series in
the appropriate principal amount. The Trustee shall deliver copies of each
certification and instruction received by it to DTC and, upon receipt
thereof, the Securities Custodian shall reflect on its books and records
the date and an increase in the principal amount of such Global Security of
such series in an amount equal to the principal amount of the Institutional
Accredited Investor Note of such series so transferred to reflect the
exchange of such Institutional Accredited Investor Note for an interest in
the Global Security.
(iv) In connection with the exchange of a portion of a Definitive
Security of any series for a beneficial interest in a Global Security of
such series, the Trustee shall cancel such Definitive Security, and the
Company shall execute, and the Trustee shall authenticate and deliver, to
the transferring Holder a new Definitive Security representing the
principal amount not so transferred.
SECTION 2.2. Execution and Authentication. One Officer shall sign
----------------------------
the Securities for the Company by manual or facsimile signature. If an Officer
whose signature is on a Security no longer holds that office at the time the
Trustee authenticates the Security, the Security shall be valid nevertheless,
after giving effect to any exchange of Initial Securities for Exchange
Securities.
A Security shall not be valid until an authorized signatory of the
Trustee manually authenticates the Security. The signature of the Trustee on a
Security shall be conclusive evidence that such Security has been duly and
validly authenticated and issued under this Indenture.
At any time and from time to time after the execution and delivery of
this Indenture, the Trustee shall authenticate and make available for delivery:
(1) the Initial Securities for issue on the Closing Date in an aggregate
principal amount of $1,000,000,000, and (2) Exchange Securities for issue only
in an Exchange Offer pursuant to the Registration Rights Agreement, and only in
exchange for the applicable Initial Securities of the same series of an equal
principal amount, in each case upon a Company Order. Such Company Order shall
specify the amount of the Securities of each series to be authenticated and the
date on which the original issue of Securities of such series are to be
authenticated and whether the Securities of such series are to be Initial
Securities or Exchange Securities. The aggregate principal amount of Securities
which may be authenticated and delivered under this Indenture is limited to
$1,000,000,000 outstanding, except for Securities authenticated and delivered
upon registration or transfer of, or in exchange for, or in lieu of, other
Securities of the same class pursuant to Section 2.6, Section 2.9, Section 2.10,
Section 5.7, Section 9.6 and except for transactions similar to the Exchange
Offer.
19
In case the Company, pursuant to Article IV, shall be consolidated or
merged with or into any other Person or shall transfer or lease all or
substantially all of its assets to any Person, and the successor Person formed
by or surviving any such consolidation or any such merger, or to which such
transfer or lease shall have been made, shall have executed an indenture
supplemental hereto with the Trustee pursuant to Article IV, any of the
Securities of any series authenticated or delivered prior to such consolidation,
merger, conveyance, transfer or lease may, from time to time, at the request of
the successor Person, be exchanged for other Securities of such series 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 Company Order of the successor Person, shall authenticate and deliver
Securities as specified in such order for the purpose of such exchange. If
Securities of any series shall at any time be authenticated and delivered in any
new name of a successor Person pursuant to this Section 2.2 in exchange or
substitution for or upon registration of transfer of any Securities of such
series, such successor Person, at the option of the Holders but without expense
to them, shall provide for the exchange of all Securities of such series at the
time Outstanding for Securities of such series authenticated and delivered in
such new name.
SECTION 2.3. Registrar and Paying Agent. The Company shall
--------------------------
maintain an office or agency where Securities of each series may be presented
for registration of transfer or for exchange (the "Registrar") and an office or
agency where Securities of each series may be presented for payment (the "Paying
Agent"). The Corporate Trust Office of the Trustee shall be such office or
agency of the Company, unless the Company shall designate and maintain some
other office or agency for one or more such purposes; provided, however, that
-------- -------
the Company will maintain such an office or agency in a city in Western Europe
so long as the Securities of any series are listed on the Luxembourg Stock
Exchange and the rules of such Exchange so require. The Company initially
appoints the Trustee as Registrar and Paying Agent for the Securities of each
series.
The Company shall cause each of the Registrar and the Paying Agent to
maintain an office or agency in the Borough of Manhattan, The City of New York.
The Registrar shall keep a register of the Securities of each series and of
their transfer and exchange (the "Note Register"). The Company may have one or
more co-registrars and one or more additional paying agents. The term "Paying
Agent" includes any additional paying agent.
The Company shall enter into an appropriate agency agreement with any
Registrar, Paying Agent or co-registrar not a party to this Indenture, which
shall incorporate the terms of the TIA. The agreement shall implement the
provisions of this Indenture that relate to such agent. The Company shall
notify the Trustee of the name and address of each such agent. If the Company
fails to maintain a Registrar or Paying Agent, the Trustee shall act as such and
shall be entitled to appropriate compensation therefor pursuant to Section 7.9.
The Company may act as Paying Agent, Registrar, co-registrar or transfer agent.
SECTION 2.4. Paying Agent To Hold Money in Trust. By at least
-----------------------------------
10:00 a.m. (New York City time) on the date on which any principal of or
interest on any Security is due
20
and payable, the Company shall deposit with the Paying Agent a sum sufficient to
pay such principal or interest when due. The Company shall require each Paying
Agent (other than the Trustee) to agree in writing that such Paying Agent shall
hold in trust for the benefit of Securityholders or the Trustee all money held
by such Paying Agent for the payment of principal of or interest on the
Securities of each series and shall notify the Trustee in writing of any default
by the Company or any Guarantor in making any such payment. If the Company acts
as Paying Agent, it shall segregate the money held by it as Paying Agent and
hold it as a separate trust fund. The Company at any time may require a Paying
Agent (other than the Trustee) to pay all money held by it to the Trustee and to
account for any funds disbursed by such Paying Agent. Upon complying with this
Section, the Paying Agent (if other than the Company) shall have no further
liability for the money delivered to the Trustee. Upon any bankruptcy,
reorganization or similar proceeding with respect to the Company, the Trustee
shall serve as Paying Agent for the Securities of each series.
SECTION 2.5. Securityholder Lists. The Trustee shall preserve in as
--------------------
current a form as is reasonably practicable the most recent list available to it
of the names and addresses of Securityholders of each series of Securities. If
the Trustee is not the Registrar, or to the extent otherwise required under the
TIA, the Company shall furnish to the Trustee, in writing at least seven
Business Days before each interest payment date and at such other times as the
Trustee may request in writing, a list in such form and as of such date as the
Trustee may reasonably require of the names and addresses of Securityholders of
each series of Securities.
SECTION 2.6. Transfer and Exchange.
---------------------
(a) The following provisions shall apply with respect to any proposed
transfer of a Rule 144A Note of any series or an Institutional Accredited
Investor Note of any series prior to the date which is two years after the later
of the date of its original issue and the last date on which the Company or any
affiliate of the Company was the owner of such Securities (or any predecessor
thereto) (the "Resale Restriction Termination Date"):
(i) a transfer of a Rule 144A Note of any series or an Institutional
Accredited Investor Note of any series or a beneficial interest therein to
a QIB shall be made upon the representation of the transferee in the form
of an assignment on the reverse of the certificate that it is purchasing
the Security of such series for its own account or an account with respect
to which it exercises sole investment discretion and that it and any such
account is a "qualified institutional buyer" within the meaning of Rule
144A, and is aware that the sale to it is being made in reliance on Rule
144A and acknowledges that it has received such information regarding the
Company as the undersigned has requested pursuant to Rule 144A or has
determined not to request such information and that it is aware that the
transferor is relying upon its foregoing representations in order to claim
the exemption from registration provided by Rule 144A;
(ii) a transfer of a Rule 144A Note of any series or an Institutional
Accredited Investor Note of any series or a beneficial interest therein to
an IAI shall be made upon receipt by the Trustee or its agent of a
certificate substantially in the form set forth in
21
Section 2.7 from the proposed transferee and, if requested by the Company
or the Trustee, the delivery of an opinion of counsel, certification and/or
other information satisfactory to each of them; and
(iii) a transfer of a Rule 144A Note of any series or an
Institutional Accredited Investor Note of any series or a beneficial
interest therein to a Non-U.S. Person shall be made upon receipt by the
Trustee or its agent of a certificate from the proposed transferee either
(x) substantially in the form set forth in Section 2.8, or (y) certifying
that such transfer is being made in compliance with Rule 144 under the
Securities Act and, in either case, if requested by the Company or the
Trustee, the delivery of an opinion of counsel, certification and/or other
information satisfactory to each of them.
(b) The following provisions shall apply with respect to any proposed
transfer of a Regulation S Note of any series prior to the expiration of the
Restricted Period:
(i) a transfer of a Regulation S Note of any series or a beneficial
interest therein to a QIB shall be made upon the representation of the
transferee, in the form of assignment on the reverse of the certificate,
that it is purchasing the Security of such series for its own account or an
account with respect to which it exercises sole investment discretion and
that it and any such account is a "qualified institutional buyer" within
the meaning of Rule 144A, and is aware that the sale to it is being made in
reliance on Rule 144A and acknowledges that it has received such
information regarding the Company as the undersigned has requested pursuant
to Rule 144A or has determined not to request such information and that it
is aware that the transferor is relying upon its foregoing representations
in order to claim the exemption from registration provided by Rule 144A;
(ii) a transfer of a Regulation S Note of any series or a beneficial
interest therein to an IAI shall be made upon receipt by the Trustee or its
agent of a certificate substantially in the form set forth in Section 2.7
from the proposed transferee and, if requested by the Company or the
Trustee, the delivery of an opinion of counsel, certification and/or other
information satisfactory to each of them; and
(iii) a transfer of a Regulation S Note of any series or a beneficial
interest therein to a Non-U.S. Person shall be made upon receipt by the
Trustee or its agent of a certificate substantially in the form set forth
in Section 2.8 hereof from the proposed transferee and, if requested by the
Company or the Trustee, receipt by the Trustee or its agent of an opinion
of counsel, certification and/or other information satisfactory to each of
them.
After the expiration of the Restricted Period, interests in the
Regulation S Note of any series may be transferred without requiring
certification set forth in Section 2.7, Section 2.8 or any additional
certification.
(c) Restricted Securities Legend. Upon the transfer, exchange or
----------------------------
replacement of Securities of any series not bearing a Restricted Securities
Legend, the Registrar shall deliver Securities of any series that do not bear a
Restricted Securities Legend. Upon the transfer,
22
exchange or replacement of Securities of any series bearing a Restricted
Securities Legend, the Registrar shall deliver only Securities of any series
that bear a Restricted Securities Legend unless there is delivered to the
Registrar an Opinion of Counsel to the effect that neither such legend nor the
related restrictions on transfer are required in order to maintain compliance
with the provisions of the Securities Act.
(d) The Company shall deliver to the Trustee an Officers' Certificate
setting forth the Resale Restriction Termination Date and the Restricted Period.
The Registrar shall retain copies of all letters, notices and other
written communications received pursuant to Section 2.1 or this Section 2.6.
The Company shall have the right to inspect and make copies of all such letters,
notices or other written communications at any reasonable time upon the giving
of reasonable written notice to the Registrar.
(e) Obligations with Respect to Transfers and Exchanges of Securities.
-----------------------------------------------------------------
(i) To permit registrations of transfers and exchanges, the Company
shall, subject to the other terms and conditions of this Article II,
execute and the Trustee shall authenticate Definitive Securities and Global
Securities at the Registrar's or co-registrar's request.
(ii) No service charge shall be made to a Holder for any registration
of transfer or exchange, but the Company may require payment of a sum
sufficient to cover any transfer tax, assessments, or similar governmental
charge payable in connection therewith (other than any such transfer taxes,
assessments or similar governmental charges payable upon exchange or
transfer pursuant to Sections 2.10, 5.7 or 9.6).
(iii) The Registrar or co-registrar shall not be required to register
the transfer of or exchange of any Security for a period being: (1) 15 days
before the mailing of a notice of an offer to repurchase or redeem
Securities and ending at the close of business on the day of such mailing
or (2) 15 days before an interest payment date and ending on such interest
payment date.
(iv) Prior to the due presentation for registration of transfer of
any Security, the Company, the Trustee, the Paying Agent, the Registrar or
any co-registrar may deem and treat the person in whose name a Security is
registered as the absolute owner of such Security for the purpose of
receiving payment of principal of and interest on such Security and for all
other purposes whatsoever, whether or not such Security is overdue, and
none of the Company, the Trustee, the Paying Agent, the Registrar or any
co-registrar shall be affected by notice to the contrary.
(v) Any Definitive Security of any series (including any
Institutional Accredited Investor Note) delivered in exchange for an
interest in a Global Security of such series pursuant to Section 2.1(d)
shall, except as otherwise provided by Section 2.6(c), bear the applicable
legend regarding transfer restrictions applicable to the Definitive
Security set forth in Section 2.1(c).
23
(vi) All Securities of any series issued upon any transfer or
exchange pursuant to the terms of this Indenture shall evidence the same
debt and shall be entitled to the same benefits under this Indenture as the
Securities of such series surrendered upon such transfer or exchange.
(f) No Obligation of the Trustee. (i) The Trustee shall have no
----------------------------
responsibility or obligation to any beneficial owner of a Global Security
of any series, a member of, or a participant in, DTC or other Person with
respect to the accuracy of the records of DTC or its nominee or of any
participant or member thereof, with respect to any ownership interest in
the Securities of any series or with respect to the delivery to any
participant, member, beneficial owner or other Person (other than DTC) of
any notice (including any notice of redemption) or the payment of any
amount or delivery of any Securities of any series (or other security or
property) under or with respect to such Securities of such series. All
notices and communications to be given to the Holders and all payments to
be made to Holders in respect of the Securities of any series shall be
given or made only to or upon the order of the registered Holders of the
Securities of such series (which shall be DTC or its nominee in the case of
a Global Security). The rights of beneficial owners in any Global Security
shall be exercised only through DTC subject to the applicable rules and
procedures of DTC. The Trustee may rely and shall be fully protected in
relying upon information furnished by DTC with respect to its members,
participants and any beneficial owners.
(ii) The Trustee shall have no obligation or duty to monitor,
determine or inquire as to compliance with any restrictions on transfer
imposed under this Indenture or under applicable law with respect to any
transfer of any interest in any Security of any series (including any
transfers between or among DTC participants, members or beneficial owners
in any Global Security of any series) other than to require delivery of
such certificates and other documentation or evidence as are expressly
required by, and to do so if and when expressly required by, the terms of
this Indenture, and to examine the same to determine substantial compliance
as to form with the express requirements hereof.
SECTION 2.7. Form of Certificate to be Delivered in Connection with
------------------------------------------------------
Transfers to Institutional Accredited Investors.
- - --------- -------------------------------------
[Date]
Federal-Mogul Corporation
c/o The Bank of New York, as Trustee
101 Barclay Street, Floor 21 West
New York, New York 10286
Dear Sirs:
24
In connection with our proposed purchase of % Notes due
(the "Securities") of Federal-Mogul Corporation, a Michigan corporation (the
"Company"), we confirm that:
l. We are an institutional "accredited investor" (as defined in Rule
50l(a)(l), (2), (3) or (7) of Regulation D under the Securities Act of 1933, as
amended (the "Securities Act")), purchasing for our own account or for the
account of such an institutional "accredited investor" in each case in a minimum
principal amount of Securities of $250,000 and we are acquiring the Securities
for investment purposes and not with a view to, or for offer or sale in
connection with, any distribution in violation of the Securities Act or other
applicable securities laws and we have such knowledge and experience in
financial and business matters as to be capable of evaluating the merits and
risk of our investment in the Securities, and we and any accounts for which we
are acting are each able to bear the economic risk of our or its investment.
2. We understand and acknowledge that the Securities have not been
registered under the Securities Act, or any other applicable securities law and
may not be offered, sold or otherwise transferred except in compliance with the
registration requirements of the Securities Act or any other applicable
securities law, or pursuant to an exemption therefrom, and in each case in
compliance with the conditions for transfer set forth below. We agree on our
own behalf and on behalf of any investor account for which we are purchasing
Securities to offer, sell or otherwise transfer such Securities prior to the
date which is two years after the later of the date of original issue and the
last date on which the Company or any affiliate of the Company was the owner of
such Securities (or any predecessor thereto) (the "Resale Restriction
Termination Date") only (a) to the Company, (b) pursuant to a registration
statement which has been declared effective under the Securities Act, (c) for so
long as the Securities are eligible for resale pursuant to Rule 144A under the
Securities Act, to a person we reasonably believe is a "Qualified Institutional
Buyer" within the meaning of Rule 144A (a "QIB") that purchases for its own
account or for the account of a QIB and to whom notice is given that the
transfer is being made in reliance on Rule 144A (d) pursuant to offers and sales
to non-U.S. persons that occur outside the United States within the meaning of
Regulation S under the Securities Act, (e) to an institutional "accredited
investor" within the meaning of subparagraphs (a)(1), (a)(2), (a)(3) or (a)(7)
of Rule 501 under the Securities Act that is acquiring the Securities for its
own account or for the account of such institutional "accredited investor," for
investment purposes and not with a view to, or for offer or sale in connection
with, any distribution in violation of the Securities Act, and in each case, in
a minimum principal amount of Securities of $250,000 or (f) pursuant to any
other available exemption from the registration requirements of the Securities
Act, subject in each of the foregoing cases to any requirement of law that the
disposition of our property or the property of such investor account or accounts
be at all times within our or their control and in compliance with any
applicable state securities laws. The foregoing restrictions on resale will not
apply subsequent to the Resale Restriction Termination Date. If any resale or
other transfer of the Securities is proposed to be made pursuant to clause (e)
above prior to the Resale Restriction Termination Date, the transferor shall
deliver to the trustee (the "Trustee") under this Indenture pursuant to which
the Securities are issued and to the Company a letter from the transferee
substantially in the form of this letter, which shall provide, among other
things, that the transferee is a person or entity defined in paragraph 1 of this
letter and that it is acquiring
25
such notes for investment purposes and not for distribution in violation of the
Securities Act. We acknowledges that the Company and the Trustee reserve the
right prior to any offer, sale or other transfer of the Securities pursuant to
clauses (d), (e) and (f) above prior to the Resale Restriction Termination Date
to require the delivery of an opinion of counsel, certifications and/or other
information satisfactory to the Company and the Trustee.
3. We are acquiring the notes purchased by us for our own account or
for one or more accounts as to each of which we exercise sole investment
discretion.
4. You are entitled to rely upon this letter and you are irrevocably
authorized to produce this letter or a copy hereof to any interested party in
any administrative or legal proceeding or official inquiry with respect to the
matters covered hereby.
Very truly yours,
By: (Name of Purchaser)
Date:
Upon transfer, the Securities would be registered in the name of the new
beneficial owner as follows:
Name Address Taxpayer ID Number
---- ------- ------------------
26
SECTION 2.8. Form of Transfers Pursuant to be Delivered in Connection
--------------------------------------------------------
with Transfers Pursuant to Regulation S.
- - ---------------------------------------
[Date]
Federal-Mogul Corporation
c/o The Bank of New York, as Trustee
101 Barclay Street, Floor 21 West
New York, New York 10286
Re: Federal-Mogul Corporation
% Notes due (the "Securities")
-------------------------------------------
Ladies and Gentlemen:
In connection with our proposed sale of $_________ aggregate principal
amount of the Securities, we confirm that such sale has been effected pursuant
to and in accordance with Regulation S under the United States Securities Act of
1933, as amended (the "Securities Act"), and, accordingly, we represent that:
(a) the offer of the Securities was not made to a person in the United
States;
(b) either (i) at the time the buy order was originated, the transferee was
outside the United States or we and any person acting on our behalf reasonably
believed that the transferee was outside the United States or (ii) the
transaction was executed in, on or through the facilities of a designated off-
shore securities market and neither we nor any person acting on our behalf knows
that the transaction has been pre-arranged with a buyer in the United States;
(c) no directed selling efforts have been made in the United States in
contravention of the requirements of Rule 903(b) or Rule 904(b) of Regulation S,
as applicable; and
(d) the transaction is not part of a plan or scheme to evade the
registration requirements of the Securities Act.
In addition, if the sale is made during a restricted period and the
provisions of Rule 903(c)(3) or Rule 904(c)(l) of Regulation S are applicable
thereto, we confirm that such sale has been made in accordance with the
applicable provisions of Rule 903(c)(3) or Rule 904(c)(l), as the case may be.
27
You and the Company are entitled to rely upon this letter and are
irrevocably authorized to produce this letter or a copy hereof to any interested
party in any administrative or legal proceedings or official inquiry with
respect to the matters covered hereby. Terms used in this certificate have the
meanings set forth in Regulation S.
Very truly yours,
[Name of Transferor]
By:_________________________________
____________________________________
Authorized Signature
28
SECTION 2.9. Mutilated, Destroyed, Lost or Stolen Securities. If a
-----------------------------------------------
mutilated Security of any series is surrendered to the Registrar or if the
Holder of a Security of any series claims that such Security has been lost,
destroyed or wrongfully taken, the Company shall issue and the Trustee shall
authenticate a replacement Security of such series if the requirements of
Section 8-405 of the Uniform Commercial Code are met and the Holder satisfies
any other reasonable requirements of the Trustee. If required by the Trustee or
the Company, such Holder shall furnish an indemnity bond sufficient in the
judgment of the Company and the Trustee to protect the Company, the Trustee, the
Paying Agent, the Registrar and any co-registrar from any loss which any of them
may suffer if a Security is replaced, and, in the absence of notice to the
Company or the Trustee that such Security has been acquired by a bona fide
purchaser, the Company shall execute and upon Company Order the Trustee shall
authenticate and make available for delivery, in exchange for any such mutilated
Security of any series or in lieu of any such destroyed, lost or stolen Security
of any series, a new Security of like series, tenor and principal amount,
bearing a number not contemporaneously outstanding.
In case any such mutilated, destroyed, lost or stolen Security of any
series has become or is about to become due and payable, the Company in its
discretion may, instead of issuing a new Security, pay such Security of such
series.
Upon the issuance of any new Security under this Section, the Company
may require the payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in relation thereto and any other
expenses (including the fees and expenses of the Trustee) in connection
therewith.
Every new Security of any series issued pursuant to this Section in
lieu of any mutilated, destroyed, lost or stolen Security of such series shall
constitute an original additional contractual obligation of the Company, any
Guarantor (if applicable) and any other obligor upon the Securities of such
series, whether or not the mutilated, 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 of
such series 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 of any series.
SECTION 2.10. Temporary Securities. Until Definitive Securities of
--------------------
any series are ready for delivery, the Company may prepare and the Trustee shall
authenticate temporary Securities for such series. Temporary Securities shall
be substantially in the form of Definitive Securities but may have variations
that the Company considers appropriate for temporary Securities. Without
unreasonable delay, the Company shall prepare and the Trustee shall authenticate
Definitive Securities. After the preparation of Definitive Securities of any
series, the temporary Securities for such series shall be exchangeable such
Definitive Securities upon surrender of such temporary Securities at any office
or agency maintained by the Company for that purpose and such exchange shall be
without charge to the Holder. Upon surrender for
29
cancellation of any one or more temporary Securities for any series, the Company
shall execute, and the Trustee shall authenticate and make available for
delivery in exchange therefor, one or more Definitive Securities for such series
representing an equal principal amount of Securities of such series. Until so
exchanged, the Holder of temporary Securities of any series shall in all
respects be entitled to the same benefits under this Indenture as a holder of
Definitive Securities of such series. At the end of the Restricted Period, the
Regulation S Temporary Global Note for any series will be exchangeable for the
Regulation S Permanent Global Note for such series as set forth in Section
2.1(a).
SECTION 2.11. Cancellation. The Company at any time may deliver
------------
Securities to the Trustee for cancellation. The Registrar and the Paying Agent
shall forward to the Trustee any Securities surrendered to them for registration
of transfer exchange or payment. The Trustee and no one else shall cancel and
return to the Company all Securities surrendered for registration of transfer,
exchange, payment or cancellation. The Company may not issue new Securities to
replace Securities it has paid or delivered to the Trustee for cancellation for
any reason other than in connection with a transfer or exchange.
SECTION 2.12. Payment of Interest; Defaulted Interest. Interest on
---------------------------------------
any Security of any series which is payable, and is punctually paid or duly
provided for, on any interest payment date shall be paid to the Person in whose
name such Security (or one or more predecessor Securities) is registered at the
close of business on the regular record date for such interest at the office or
agency of the Company maintained for such purpose pursuant to Section 2.3.
Any interest on any Security of any series which is payable, but is
not punctually paid or duly provided for when the same becomes due and payable,
shall forthwith cease to be payable to the Holder on the relevant regular record
date by virtue of having been such a Holder, and such defaulted interest and (to
the extent lawful) interest on such defaulted interest at the rate borne by the
Securities of such series (such defaulted interest and interest thereon herein
collectively called "Defaulted Interest") shall be paid by the Company, at its
election in each case, as provided in clause (a) or (b) below:
(a) The Company may elect to make payment of any Defaulted Interest to the
Persons in whose names the Securities of such series (or their respective
predecessor Securities) are registered at the close of business on a Special
Record Date (as defined below) for the payment of such Defaulted Interest, which
shall be fixed in the following manner. The Company 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 date of the proposed payment, such
money when deposited to be held in trust for the benefit of the Persons entitled
to such Defaulted Interest as in this clause (a) provided. Thereupon the
Trustee shall fix a record 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 proposed payment 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 Company of such Special Record Date, and in
the name and at the expense of the Company, shall cause
30
notice of the proposed payment of such Defaulted Interest and the Special Record
Date therefor to be given in the manner provided for in Section 11.2, 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 therefor having been so
given, such Defaulted Interest shall be paid to the Persons in whose names the
Securities (or their respective predecessor Securities) are registered at the
close of business on such Special Record Date and shall no longer be payable
pursuant to the following clause (b).
(b) The Company may make payment of such Defaulted Interest to the Persons
in whose names such Securities are registered at the close of business on a
specified date 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 notice given by the
Company to the Trustee of the proposed payment pursuant to this clause, such
manner of payment shall be deemed practicable by the Trustee.
(c) Subject to the foregoing provisions of this Section, each Security of
any series delivered under this Indenture upon registration of, transfer of or
in exchange for or in lieu of any other Security of such series shall carry the
rights to interest accrued and unpaid, and to accrue, which were carried by such
other Security of such series.
SECTION 2.13. Computation of Interest. Interest on the Securities of
-----------------------
each series shall be computed on the basis of a 360-day year of twelve 30-day
months.
SECTION 2.14. CUSIP Numbers. The Company in issuing the Securities
-------------
of each series may use "CUSIP" numbers and, if so, the Trustee shall use "CUSIP"
numbers in notices of redemption as a convenience to Holders; provided, however,
-------- -------
that any such notice may state that no representation is made as to the
correctness of such numbers either as printed on the Securities of each series
or as contained in any notice of a redemption and that reliance may be placed
only on the other identification numbers printed on the Securities of each
series, and any such redemption shall not be affected by any defect in or
omission of such CUSIP numbers.
ARTICLE III
Covenants
---------
SECTION 3.1. Payment of Principal, Premium, if any, and Interest, if
-------------------------------------------------------
any. The Company covenants and agrees for the benefit of the Holders of each
- - ---
series of Outstanding Securities that it will duly and punctually pay the
principal of, premium, if any, and interest, if any, on the Securities of that
series in accordance with the terms of the Securities of such series and this
Indenture. An installment of principal, premium, if any, or interest, if any,
shall be considered paid on the date it is due if the Trustee or Paying Agent
holds on that date money designated for and sufficient to pay the installment.
31
SECTION 3.2. Maintenance of Office or Agency.
-------------------------------
The Company will maintain in each Place of Payment for any series of
Securities an office or agency where the Securities of that series may be
presented or surrendered for payment, where the Securities of that series may be
surrendered for registration of transfer or exchange and where notices and
demands to or upon the Company in respect of the Securities of that series and
this Indenture may be served. The Corporate Trust Office of the Trustee shall
be such an office or agency of the Company, unless the Company may designate and
maintain some other office or agency for one or more of such purposes; provided,
--------
however, that the Company will maintain such an office or agency in a city in
- - -------
Western Europe so long as the Securities of any series are listed on the
Luxembourg Stock Exchange and the rules of such Exchange so require. The
Company will give prompt written notice to the Trustee of any change in the
location of any such office or agency. If at any time the Company shall fail to
maintain any such required office or agency or shall fail to furnish the Trustee
with the address thereof, such presentations, surrenders, notices and demands
may be made or served at the Corporate Trust Office of the Trustee, and the
Company hereby appoints the Trustee as its agent to receive all such
presentations, surrenders, notices and demands.
The Company may also from time to time designate one or more other
offices or agencies where the Securities of any series may be presented or
surrendered for any or all such purposes and may from time to time rescind any
such designation; provided, however, that no such designation or rescission
-------- -------
shall in any manner relieve the Company of its obligation to maintain an office
or agency in each Place of Payment for Securities of any series for such
purposes. The Company will give prompt written notice to the Trustee of any
such designation or rescission and any change in the location of any such other
office or agency.
SECTION 3.3. Money for Securities Payments to be Held in Trust;
--------------------------------------------------
Unclaimed Money. If the Company shall at any time act as its own Paying Agent
- - --------- -----
with respect to any series of Securities, it will, on or before each due date of
the principal of, premium, if any, or interest, if any, on the Securities of
that series, segregate and hold in trust for the benefit of the Persons entitled
thereto a sum sufficient to pay the principal, premium, if any, 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 in writing of its
action or failure so to act.
The Company will cause each Paying Agent for any series 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, premium,
if any, or interest, if any, on the Securities of that series 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;
(b) give the Trustee notice of any default by the Company or any Guarantor
(or any other obligor upon the Securities of that series) in the making of any
payment of principal, premium, if any, or interest, if any, on the Securities;
and
32
(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.
The Company may at any time, for the purpose of obtaining the
satisfaction and discharge or defeasance of this Indenture or for any other
purpose, pay, or by Company Order direct any Paying Agent to pay, to the Trustee
all sums held in trust by the Company or such Paying Agent, such sums to be held
by the Trustee upon the same terms as those upon which such sums were held by
the Company 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 Company, in trust for the payment of any principal, premium or interest
on any Security of any series and remaining unclaimed for two years after such
principal, premium, if any, or interest, if any, has become due and payable
shall be paid to the Company on Company Request or (if then held by the Company)
shall be discharged from such trust, unless otherwise required by certain
provisions of applicable law; and the Holder of such Security shall thereafter,
as an unsecured general creditor, look only to the Company for payment thereof,
and all liability of the Trustee or such Paying Agent with respect to such trust
money, and all liability of the Company as trustee thereof, shall thereupon
cease; provided, however, that the Trustee or such Paying Agent, before being
-------- -------
required to make any such repayment, may at the expense of the Company cause to
be published once, in a newspaper published in the English language, customarily
published on each Business Day and of general circulation in The City of New
York, or cause to be mailed to 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 publication, any unclaimed balance of such money
then remaining will be repaid to the Company.
SECTION 3.4. Corporate Existence. Subject to Article IV, the
-------------------
Company will at all times do or cause to be done all things necessary to
preserve and keep in full force and effect its corporate existence and its
rights and franchises; provided, that nothing in this Section 3.4 shall prevent
--------
the abandonment or termination of any right or franchise of the Company if, in
the opinion of the Company, such abandonment or termination is in the best
interests of the Company and does not materially adversely affect the ability of
the Company to fulfill its obligations hereunder.
SECTION 3.5. Reports by the Company. The Company covenants:
----------------------
(a) to file with the Trustee, within 30 days after the Company is required
to file the same with the Commission, copies of the annual reports and of the
information, documents and other reports (or copies of such portions of any of
the foregoing as the Commission may from time to time by rules and regulations
prescribe) which the Company may be required to file with the Commission
pursuant to Section 13 or Section 15(d) of the Exchange Act; or, if the Company
is not required to file information, documents or reports pursuant to either of
such Sections, then to file with the Trustee and the Commission, in accordance
with rules and regulations prescribed from time to time by the Commission, such
of the supplementary and periodic information,
33
documents and reports which may be required pursuant to Section 13 of the
Exchange Act in respect of a security listed and registered on a national
securities exchange as may be prescribed from time to time in such rules and
regulations;
(b) to 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
Company with the conditions and covenants provided for in this Indenture, as may
be required from time to time by such rules and regulations;
(c) to transmit to all Holders of Securities, within 30 days after the
filing thereof with the Trustee, in the manner and to the extent provided in
Section 313(c) of the Trust Indenture Act, such summaries of any information,
documents and reports required to be filed by the Company pursuant to
subsections (a) and (b) of this Section 3.5, as may be required by rules and
regulations prescribed from time to time by the Commission; and
(e) to comply with Sections 313(b) and 313(d) of the Trust Indenture Act,
to the extent applicable.
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 information
concerning the Company's compliance with any of its covenants hereunder,
provided that the foregoing shall not relieve the Trustee of any of its
responsibilities hereunder.
SECTION 3.6. Annual Review Certificate; Notice of Defaults or Events
-------------------------------------------------------
of Default. (a) The Company covenants and agrees to deliver to the Trustee,
- - ----------
within 120 days after the end of each fiscal year of the Company (beginning with
the fiscal year next following the Closing Date), a certificate from the
principal executive officer, principal financial officer or principal accounting
officer as to his or her knowledge of the Company's compliance with all
conditions and covenants under this Indenture. For purposes of this Section
3.6, such compliance shall be determined without regard to any period of grace
or requirement of notice provided under this Indenture.
(b) The Company covenants and agrees to deliver to the Trustee, within a
reasonable time after the Company becomes aware of the occurrence of a Default
or an Event of Default of the character specified in Section 6.1(d) hereof,
written notice of the occurrence of such Default or Event of Default.
SECTION 3.7. Books of Record and Account . The Company will keep
---------------------------
proper books of record and account, either on a consolidated or individual
basis. The Company shall cause its books of record and account to be examined
either on a consolidated or individual basis, by one or more firms of
independent public accountants not less frequently than annually. The Company
shall prepare its financial statements in accordance with generally accepted
accounting principles.
34
SECTION 3.8. Limitation on Liens. (a) So long as the Securities
-------------------
shall be Outstanding, the Company will not create or assume, and will not permit
any Restricted Subsidiary to create or assume, any notes, bonds, debentures or
other similar evidences of Indebtedness secured by any mortgage, pledge,
security interest or lien (any such mortgage, pledge, security interest or lien
being referred to herein as a "Mortgage" or "Mortgages") of or upon any
Principal Property owned by the Company or by any Restricted Subsidiary or on
shares of capital stock or evidence of Indebtedness of any Restricted
Subsidiary, whether owned at the date of this Indenture or hereafter acquired,
without making effective provision, and the Company in such case will make or
cause to be made effective provision, whereby all Securities (together with, if
the Company shall so determine, any other Indebtedness of the Company or such
Restricted Subsidiary, whether then existing or thereafter created which is not
subordinated to the Securities) shall be secured by such a Mortgage equally and
ratably with (or prior to) any and all other Indebtedness thereby secured, so
long as such Indebtedness shall be so secured; provided, however, that the
-------- -------
foregoing shall not apply to any of the following:
(i) Mortgages on any Principal Property, shares of stock of
Indebtedness of any corporation existing at the time such corporation
becomes a Subsidiary;
(ii) Mortgages on any Principal Property, shares of stock or
Indebtedness acquired, constructed or improved by the Company or any
Restricted Subsidiary after the date of this Indenture which are created or
assumed prior to, or contemporaneously with, such acquisition, construction
or improvement or within 365 days after the acquisition, completion of
construction or improvement or commencement of commercial operation of such
property, to secure or provide for the payment of all or any part of the
purchase price or the cost of such construction or improvement thereof;
(iii) Mortgages on any Principal Property, shares of stock or
Indebtedness existing at the time of acquisition thereof (including
acquisition through merger or consolidation);
(iv) Mortgages on any Principal Property or shares of stock or
Indebtedness acquired from a corporation which is merged with or into the
Company or a Restricted Subsidiary;
(v) Mortgages on any Principal Property, shares of stock or
Indebtedness to secure Indebtedness to the Company or to a Restricted
Subsidiary;
(vi) Mortgages on any Principal Property, shares of stock or
Indebtedness in favor of the United States of America or any State thereof
or The Commonwealth of Puerto Rico, or any department, agency or
instrumentality or political subdivision of the United States of America or
any State thereof or The Commonwealth of Puerto Rico, to secure partial,
progress, advance or other payments, or to secure any Indebtedness incurred
for the purpose of financing all or any part of the cost of acquiring,
constructing or improving any Principal Property, shares of stock or
Indebtedness subject to such Mortgages (including Mortgages incurred in
connection with pollution control, industrial
35
revenue, Title XI maritime financings or similar financings), or other
Mortgages in connection with the issuance of tax-exempt industrial revenue
bonds;
(vii) Mortgages existing as of the date of this Indenture;
(viii) Mortgages for taxes, assessments or other government charges,
the validity of which is being contested in good faith by appropriate
proceedings and materialmen's, mechanics' and other like Mortgages, or
deposits to obtain the release of such Mortgages;
(ix) Mortgages created or deposits made to secure the payment of
workers' compensation claims or the performance of, or in connection with,
tenders, bids, leases, public or statutory obligations, surety and appeal
bonds, contracts, performance and return-of-money bonds or to secure (or in
lieu of) surety or appeal bonds and Mortgages made in the ordinary course
of business for similar purposes; and
(x) any extension, renewal or replacement (or successive
extensions, renewals or replacements), in whole or in part, of any Mortgage
referred to in the foregoing clauses (i) to (ix), inclusive; provided,
---------
however, that such extension, renewal or replacement shall be limited to
-------
all or a part of the property, shares of stock or Indebtedness which
secured the Mortgage so extended, renewed or replaced (plus improvements on
such property).
Notwithstanding the foregoing, the Company or any Restricted
Subsidiary may create or assume Mortgages in addition to those permitted by the
immediately preceding paragraph, and renew, extend or create such Mortgages,
provided, that at the time of such creation, assumption, renewal or replacement,
- - --------
and after giving effect thereto, the aggregate amount of all Indebtedness so
secured by such a Mortgage as provided above (not including Indebtedness
excluded as provided in clauses (i) through (x) of the immediately preceding
paragraph), plus all Attributable Debt of the Company and its Restricted
Subsidiaries in respect of Sale and Lease-Back Transactions (defined in Section
3.9 below) which would not be permitted by either clause (i) or (ii) of the
first paragraph under Section 3.9 below, would not exceed 20% of Consolidated
Assets.
(b) So long as any Indebtedness under the 1998 Credit Agreements (or any
other credit agreement renewing, refunding, replacing, restating, refinancing or
extending the 1998 Credit Agreements) is secured by shares of capital stock or
evidences of Indebtedness of any Restricted Subsidiary, the Securities shall
also be secured by such collateral. In the event that the Indebtedness incurred
under the 1998 Credit Agreements (or any other credit agreement renewing,
refunding, replacing, restating, refinancing or extending the 1998 Credit
Agreements) ceases for any reason to be secured by any collateral securing the
Securities, the Securities shall also cease to be secured by such collateral,
whether or not a Default or an Event of Default is then outstanding for any
reason.
SECTION 3.9. Limitation on Sale and Lease-Back Transactions. So
----------------------------------------------
long as the Securities shall be Outstanding, the Company will not, nor will it
permit any Restricted Subsidiary to, enter into any arrangement with any Person
(other than the Company or any
36
Restricted Subsidiary) providing for the leasing by the Company or a Restricted
Subsidiary of any Principal Property owned by the Company or such Restricted
Subsidiary (except for leases for a term of not more than three years), which
property has been or is to be sold or transferred by the Company or such
Restricted Subsidiary to such person on the security of such Principal Property
more than 365 days after the acquisition thereof or the completion of
construction and commencement of full operation thereof (a "Sale and Lease-Back
Transaction"), unless either (a) the Company or such Restricted Subsidiary would
be entitled pursuant to Section 3.8 to incur Indebtedness secured by a Mortgage
on the Principal Property to be leased back equal in amount to the Attributable
Debt with respect to such Sale and Lease-Back Transaction without equally and
ratably securing the Securities, or (b) the Company shall, and in any such case
the Company covenants that it will, apply or cause to be applied an amount equal
to the greater of the net proceeds or the fair value (as determined by the Board
of Directors of the Company) of the property so sold to the purchase of
Principal Property or to the retirement (other than any mandatory retirement),
within 365 days of the effective date of any such Sale and Lease-Back
Transaction, of Securities or other Funded Indebtedness; provided, however, that
-------- -------
any such retirement of Securities shall be made in accordance with this
Indenture; and provided, further, that the amount to be applied to such
-------- -------
retirement of Securities or other Funded Indebtedness shall be reduced by an
amount equal to the sum of (i) an amount equal to the principal amount of any
Securities delivered within 365 days after the effective date of such Sale and
Lease-Back Transaction to the Trustee for retirement and cancellation, and (ii)
the principal amount of other Funded Indebtedness voluntarily retired by the
Company within such 365-day period, excluding, in each case, retirements
pursuant to mandatory sinking fund or prepayment provisions and payments at
Maturity.
Notwithstanding the foregoing, the Company or any Restricted
Subsidiary may enter into Sale and Lease-Back Transactions in addition to any
permitted by the immediately preceding paragraph and without any obligation to
retire any Securities or other Indebtedness; provided, that at the time of
--------
entering into such Sale and Lease-Back Transaction and after giving effect
thereto, Attributable Debt resulting from such Sale and Lease-Back Transaction,
plus the aggregate amount of all Indebtedness secured by a Mortgage (not
including Indebtedness excluded as provided in clauses (i) through (x) under
Section 3.8 above), does not exceed 20% of Consolidated Assets.
ARTICLE IV
Consolidation, Merger or Sale by the Company
--------------------------------------------
SECTION 4.1. Consolidation, Merger or Sale of Assets Permitted.
-------------------------------------------------
The Company shall not consolidate or merge with or into, or transfer or lease
all or substantially all of its assets to, any Person unless:
(a) the Person formed by or surviving any such consolidation or any merger
(if other than the Company), or to which such transfer or lease shall have been
made, is a corporation
37
organized and existing under the laws of the United States, any State thereof or
the District of Columbia;
(b) the Person formed by or surviving any such consolidation or merger (if
other than the Company), or to which such transfer or lease shall have been
made, assumes by supplemental indenture all the obligations of the Company under
the Securities and this Indenture;
(c) immediately after giving effect to the transaction, no Default or
Event of Default exists; and
(d) if, as a result of any such consolidation or merger or such transfer
or lease, properties or assets of the Company would become subject to a
mortgage, pledge, lien, security interest or other encumbrance which would not
be permitted by the Securities of any series, the Company or such successor
Person, as the case may be, shall take such steps as shall be necessary to
secure such Securities equally and ratably with all indebtedness secured
thereby.
The Company shall deliver to the Trustee prior to the proposed
transaction an Officers' Certificate to the foregoing effect and an Opinion of
Counsel stating that the proposed transaction and such supplemental indenture
comply with this Indenture and that all conditions precedent to the consummation
of the transaction under this Indenture have been met.
In the event of the assumption by a successor corporation as provided
in clause (b) above, such successor corporation shall succeed to and be
substituted for the Company hereunder and under the Securities with the same
effect as if it had been named hereunder and thereunder and all such obligations
of the Company shall terminate.
ARTICLE V
Redemption of Securities
------------------------
SECTION 5.1. Applicability of Article. Securities of any series
------------------------
which are redeemable before their Stated Maturity shall be redeemable in
accordance with their terms and in accordance with this Article.
SECTION 5.2. Election to Redeem; Notice to Trustee. The election
-------------------------------------
of the Company to redeem any Securities shall be evidenced by or pursuant to a
Board Resolution. In the case of any redemption at the election of the Company
of less than all the Securities of any series, the Company shall, at least 60
days prior to the Redemption Date fixed by the Company (unless a shorter notice
shall be satisfactory to the Trustee), notify the Trustee of such Redemption
Date and Redemption Price, of the principal amount of Securities of such series
to be redeemed.
SECTION 5.3. Selection of Securities to be Redeemed. If less than
---------------------------------------
all the Securities of a series are to be redeemed, the Trustee, not more than 45
days prior to the Redemption Date, shall select the Securities of the series to
be redeemed in such a manner as the
38
Trustee shall deem fair and appropriate and which may provide for the selection
for redemption of a portion of the principal amount of any Security of such
series, provided that the unredeemed portion of the principal amount of any
--------
Security shall be in an authorized denomination (which shall not be less than
the minimum authorized denomination) for such Security. The Trustee shall make
the selection from the Securities of the series that are Outstanding that have
not previously been called for redemption and may provide for the selection for
redemption of portions (equal to the minimum authorized denomination for
Securities of that series, or any integral multiple of $1000 in excess thereof)
of the principal amount of Securities of such series of a denomination larger
than the minimum authorized denomination for Securities of that series.
The Trustee shall promptly notify the Company in writing of the
Securities selected for redemption and, in the case of any Securities selected
for partial redemption, the principal amount thereof to be redeemed. If the
Company shall so direct, Securities registered in the name of the Company, any
Affiliate of the Company or any Subsidiary of the Company thereof shall not be
included in the Securities selected for redemption.
For purposes of this Indenture, unless the context otherwise requires,
all provisions relating to the redemption of Securities shall relate, in the
case of any Securities redeemed or to be redeemed only in part, to the portion
of the principal amount of such Securities which has been or is to be redeemed.
SECTION 5.4. Notice of Redemption. Notice of redemption shall be
--------------------
given in the manner provided in Section 11.2 not less than 30 days nor more than
60 days prior to the Redemption Date to the Holders of the Securities to be
redeemed.
All notices of redemption shall state:
(a) the Redemption Date;
(b) the Redemption Price;
(c) if less than all of the Outstanding Securities of a series are to be
redeemed, the identification (and in the case of partial redemption, the
principal amounts) of the particular Security or Securities to be redeemed;
(d) in case any Security is to be redeemed in part only, the notice which
relates to such Security shall state that on and after the Redemption Date, upon
surrender of such Security, the Holder will receive, without charge, a new
Security or Securities of authorized denominations for the principal amount
thereof remaining unredeemed;
(e) the Place of Payment where such Securities are to be surrendered for
payment for the Redemption Price;
(f) that Securities of the series called for redemption must be
surrendered to the Paying Agent to collect the Redemption Price;
39
(g) that, on the Redemption Date, the Redemption Price will become due and
payable upon each such Security, or the portion thereof, to be redeemed and, if
applicable, that interest thereon will cease to accrue on and after said date;
and
(h) the CUSIP number, if any, of the Securities.
Notice of redemption of Securities to be redeemed shall be given by
the Company or, at the Company's request, by the Trustee in the name and at the
expense of the Company.
SECTION 5.5. Deposit of Redemption Price. On or prior to any
---------------------------
Redemption Date, the Company shall deposit with the Trustee or with a Paying
Agent (or, if the Company is acting as its own Paying Agent, segregate and hold
in trust as provided in Section 3.3) an amount of money sufficient to pay on the
Redemption Date the Redemption Price of, and (unless the Redemption Date shall
be an interest payment date) interest accrued to the Redemption Date on, all
Securities or portions thereof which are to be redeemed on that date.
SECTION 5.6. Securities Payable on Redemption Date. Notice of
-------------------------------------
redemption having been given as aforesaid, the Securities so to be redeemed
shall, on the Redemption Date, become due and payable at the Redemption Price
therein specified, and from and after such date (unless the Company shall
default in the payment of the 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 Company at the Redemption Price, together with accrued interest to the
Redemption Date; provided, however, that installments of interest whose Stated
-------- -------
Maturity is on or prior to the Redemption Date shall be payable to the Holders
of such Securities, or one or more predecessor Securities, registered as such at
the close of business on the relevant record dates according to their terms.
If any Security called for redemption shall not be so paid upon
surrender thereof for redemption, the principal (and premium, if any) shall,
until paid, bear interest from the Redemption Date at the rate prescribed
therefor in the Security.
SECTION 5.7. Securities Redeemed in Part. Upon surrender of a
---------------------------
Security that is redeemed in part at the office or agency of the Company
maintained for such purpose pursuant to Section 3.2 (with, if the Company or the
Trustee so requires, due endorsement by, or a written instrument of transfer in
form satisfactory to the Company and the Trustee duly executed by, the Holder
thereof or his attorney duly authorized in writing), the Company shall execute
and the Trustee shall authenticate and deliver to the Holder of that Security,
without service charge, a new Security or Securities of the same series, having
the same form, terms and Stated Maturity, in any authorized denomination equal
in aggregate principal amount to the unredeemed portion of the principal amount
of the Security surrendered.
40
ARTICLE VI
Defaults and Remedies
---------------------
SECTION 6.1. Events of Default. An "Event of Default" occurs with
-----------------
respect to the Securities of any series if (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) the Company defaults in the payment of interest on any Security of
that series when the same becomes due and payable and such default continues for
a period of 30 days;
(b) the Company defaults in the payment of the principal of or any premium
on any Security of that series when the same becomes due and payable at its
Maturity or on redemption or otherwise;
(c) the Company fails to comply in any material respect with any of its
agreements or covenants in, or any of the provisions of, this Indenture with
respect to any Security of that series (other than an agreement, covenant or
provision for which non-compliance is elsewhere in this Section specifically
dealt with), and such non-compliance continues for a period of 60 days after
there has been given by registered or certified mail, to the Company by the
Trustee or to the Company and the Trustee by the Holders of at least 25% in
principal amount of the Outstanding Securities of that series a written notice
specifying such default or breach and requiring it to be remedied and stating
that such notice is a "Notice of Default" hereunder;
(d) a default under any mortgage, agreement, indenture or instrument under
which there may be issued, or by which there may be secured, guaranteed or
evidenced any Debt of the Company (including this Indenture) whether such Debt
now exists or shall hereafter be created, in an aggregate principal amount then
outstanding of $25,000,000 or more, which default (a) shall constitute a failure
to pay any portion of the principal of such Debt when due and payable after the
expiration of an applicable grace period with respect thereto or (b) shall
result in such Debt becoming or being declared due and payable prior to the date
on which it would otherwise become due and payable, and such acceleration shall
not be rescinded or annulled, or such Debt shall not be paid in full within a
period of 30 days after there has been given, by registered or certified mail,
to the Company by the Trustee or to the Company and the Trustee by the Holders
of at least 25% in aggregate principal amount of the Outstanding Securities of
that series a written notice specifying such event of default and requiring the
Company to cause such acceleration to be rescinded or annulled or to pay in full
such Debt and stating that such notice is a "Notice of Default" hereunder; (it
being understood however, that the Trustee shall not be deemed to have knowledge
of such default under such agreement or instrument unless either (A) a
Responsible Officer of the Trustee shall have actual knowledge of such default
or (B) a Responsible Officer of the Trustee shall have received written notice
thereof from the Company, from any Holder, from the holder of any such
indebtedness or from the trustee under any such agreement or other instrument);
provided, however, that if such default under such agreement
- - -------- -------
41
or instrument is remedied or cured by the Company or waived by the holders of
such indebtedness, then the Event of Default hereunder by reason thereof shall
be deemed likewise to have been thereupon remedied, cured or waived without
further action upon the part of either the Trustee or any of such Holders;
provided, further, that the foregoing shall not apply to any secured Debt under
- - -------- -------
which the obligee has recourse (exclusive of recourse for ancillary matters such
as environmental indemnities, misapplication of funds, costs of enforcement and
the like) only to the collateral pledged for repayment so long as the fair
market value of such collateral does not exceed 2% of Total Assets at the time
of the default;
(e) the Company, pursuant to or within the meaning of any Bankruptcy Law,
(A) commences a voluntary case or proceeding, (B) consents to the entry of an
order for relief against it in an involuntary case or proceeding, (C) consents
to the appointment of a Custodian of it or for all or substantially all of its
property, (D) makes a general assignment for the benefit of its creditors, (E)
makes an admission in writing of its inability to pay its debts generally as
they become due or (F) takes corporate action in furtherance of any such action;
or
(f) a court of competent jurisdiction enters an order or decree under any
Bankruptcy Law that (A) is for relief against the Company, in an involuntary
case, (B) adjudges the Company as bankrupt or insolvent, or approves as properly
filed a petition seeking reorganization, arrangement, and adjustment or
composition of or in respect of the Company, or appoints a Custodian of the
Company, or for all or substantially all of its property, or (C) orders the
liquidation of the Company and the decree remains unstayed and in effect for 60
days.
The Company shall deliver to the Trustee, as soon as practicable,
written notice in the form of an Officers' Certificate of any Default, its
status and what action the Company is taking or proposes to take with respect
thereto.
As used in this Indenture, the term "Bankruptcy Law" means Title 11,
U.S. Code, or any similar federal or state bankruptcy, insolvency,
reorganization or other law for the relief of debtors. As used in this
Indenture, the term "Custodian" means any receiver, trustee, assignee,
liquidator or similar official under any Bankruptcy Law.
SECTION 6.2. Acceleration; Rescission and Annulment. If an Event
--------------------------------------
of Default with respect to the Securities of any series at the time Outstanding
occurs and is continuing, the Trustee or the Holders of at least 25% in
aggregate principal amount of all of the Outstanding Securities of that series,
by written notice to the Company (and if given by the Holders, to the Trustee),
may declare the principal of and accrued interest, if any, on the Securities of
that series to be due and payable and upon any such declaration such principal
and interest, if any, shall be immediately due and payable.
At any time after such a declaration of acceleration with respect to
Securities of any series has been made and 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
Outstanding Securities of that series, by written notice to the Trustee, may
rescind and annul such declaration and its consequences if all existing Defaults
and Events of Default with respect to Securities of that series, other than the
non-payment of the
42
principal of, premium, if any, and interest, if any, on Securities of that
series which have become due solely by such declaration of acceleration, have
been cured or waived as provided in Section 6.7. No such rescission shall affect
any subsequent default or impair any right consequent thereon.
SECTION 6.3. Collection of Indebtedness and Suits for Enforcement by
-------------------------------------------------------
Trustee. The Company covenants that if:
- - -------
(a) default is made in the payment of any interest on any Security, if
any, 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 (or premium, if
any, on) any Security at the Maturity thereof,
the Company will, upon demand of the Trustee, pay to it, for the benefit of the
Holder of such Security, the whole amount then due and payable on such Security
for principal, premium, if any, and interest, if any, and, to the extent that
payment of such interest shall be legally enforceable, interest on any overdue
principal, premium, if any, and on any overdue interest, if any, at the rate or
rates prescribed therefor in such Security 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 an Event of Default with respect to the Securities of any series
occurs and is continuing, the Trustee may in its discretion proceed to protect
and enforce its rights and the rights of the Holders of Securities of such
series by such appropriate judicial proceedings as the Trustee shall deem most
effectual to protect and enforce any such rights, 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 to secure any other proper remedy
including, without limitation seeking recourse against any Guarantor.
SECTION 6.4. Trustee May File Proofs of Claim. The Trustee may
--------------------------------
file such proofs of claim and other papers or documents and take such actions
authorized under the Trust Indenture Act as may be necessary or advisable in
order to have the claims of the Trustee and the Holders of Securities allowed in
any judicial proceedings relating to the Company (or any other obligor upon the
Securities, including any Guarantor), its creditors or its property. In
particular, the Trustee shall be authorized to collect and receive any 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 other 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 to 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 7.9.
SECTION 6.5. Trustee May Enforce Claims Without Possession of
------------------------------------------------
Securities. All rights of action and claims under this Indenture or the
- - ----------
Securities or any Guarantee may be
43
prosecuted and enforced by the Trustee, in its own name as an express trust,
without the possession of any of the Securities or the production thereof in any
proceeding relating thereto and any recovery of judgment shall, after provision
for the reasonable fees and expenses of the Trustee and its counsel, be for the
ratable benefit of the Holders of the Securities in respect to which judgment
was recovered.
SECTION 6.6. Delay or Omission Not Waiver. No delay or omission by
----------------------------
the Trustee or any Holder of any Securities to exercise any right or remedy
accruing upon an Event of Default shall impair any such right or remedy or
constitute a waiver of or acquiescence in any such Event of Default.
SECTION 6.7. Waiver of Past Defaults. In addition to the
-----------------------
provisions of Section 6.2, the Holders of a majority in aggregate principal
amount of Outstanding Securities of any series by written notice to the Trustee
may waive on behalf of the Holders of all Securities of such series a past
Default or Event of Default with respect to that series and its consequences
except (a) a Default or Event of Default in the payment of the principal of,
premium, if any, or interest, if any, on any Security of such series or (b) in
respect of a covenant or provision hereof which pursuant to Section 9.2 cannot
be amended or modified without the consent of the Holder of each Outstanding
Security of such series adversely affected. Upon any such waiver, such Default
shall cease to exist, and any Event of Default arising therefrom shall be deemed
to have been cured, for every purpose of this Indenture.
SECTION 6.8. Control by Majority. The Holders of a majority in
-------------------
aggregate principal amount of the Outstanding Securities of each series affected
(with each such series voting as a class) shall have the right to direct the
time, method and place of conducting any proceeding for any remedy available to
the Trustee or exercising any trust or power conferred on it with respect to the
Securities of that series; provided, however, that (a) the Trustee may refuse to
-------- -------
follow any direction that conflicts with law or this Indenture (b) the Trustee
may refuse to follow any direction that is unduly prejudicial to the rights of
the Holders of Securities of such series not consenting or that would in the
good faith judgment of the Trustee have a substantial likelihood of involving
the Trustee in personal liability and (c) the Trustee may take any other action
deemed proper by the Trustee which is not inconsistent with such direction.
Prior to the taking of any action hereunder, the Trustee shall be entitled to
reasonable indemnification satisfactory to the Trustee against all losses and
expenses caused by taking or not taking such action. This paragraph shall be in
lieu of Section 316(a)(1)(A) of the Trust Indenture Act and such Section
316(a)(1)(A) is hereby expressly excluded from this Indenture, as permitted by
the Trust Indenture Act.
SECTION 6.9. Limitation on Suits by Holders. No Holder of any
------------------------------
Security of any series shall have any right to institute any proceeding,
judicial or otherwise, with respect to this Indenture, or for the appointment of
a receiver or trustee, or for any other remedy hereunder, unless:
(a) the Holder has previously given written notice to the Trustee of a
continuing Event of Default with respect to the Securities of that series;
44
(b) the Holders of at least 25% in aggregate principal amount of the
Outstanding Securities of that series have made a 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 indemnity
satisfactory to the Trustee against any loss, liability or expense to be, or
which may be, incurred by the Trustee in pursuing the remedy;
(d) the Trustee for 60 days after its receipt of such notice, request and
the offer of indemnity has failed to institute any such proceedings; and
(e) during such 60 day period, the Holders of a majority in aggregate
principal amount of the Outstanding Securities of that series have not given to
the Trustee a direction inconsistent with such written request.
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 to affect, disturb
or prejudice the rights of any other of such Holders, or to obtain or to seek to
obtain priority or preference over any other of such Holders or to enforce any
right under this Indenture, except in the manner herein provided and for the
equal and ratable benefit of all of such Holders.
SECTION 6.10. Rights of Holders to Receive Payment. Notwithstanding
------------------------------------
any other provision of this Indenture, but subject to Section 3.2, the right of
any Holder of a Security to receive payment of principal of, premium, if any,
and, subject to Sections 2.1, 2.3 and 2.12, interest, if any, on the Security,
on or after the respective due dates expressed in the Security (or, in case of
redemption, on the redemption dates), or, subject to Section 6.9, to bring suit
for the enforcement of any such payment on or after such respective dates, shall
not be impaired or affected without the consent of such Holder.
SECTION 6.11. Application of Money Collected. If the Trustee
------------------------------
collects any money pursuant to this Article, it shall pay out the money 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, premium, if any, or
interest, if any, upon presentation of the Securities and the notation thereon
of the payment if only partially paid and upon surrender thereof if fully paid:
First: to the Trustee for amounts due under Section 7.9;
Second: to Holders of Securities in respect of which or for the
benefit of which such money has been collected for amounts due and unpaid on
such Securities for principal of, premium, if any, and interest, if any,
ratably, without preference or priority of any kind, according to the amounts
due and payable on such Securities for principal, premium, if any, and interest,
if any, respectively; and
45
Third: to the Company.
The Trustee may fix a record date and payment date for any payment to
Holders pursuant to this Section 6.11. At least 15 days before such record
date, the Trustee shall mail to each Holder and the Company a notice that states
the record date, the payment date and the amount to be paid.
SECTION 6.12. Restoration of Rights and Remedies. If the Trustee or
----------------------------------
any Holder has instituted any proceeding to enforce any right or remedy under
this Indenture 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, subject to any determination in such proceeding, the
Company, the Guarantors, the Trustee and the Holders shall 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 6.13. Rights and Remedies Cumulative. Except as otherwise
------------------------------
provided with respect to the replacement or payment of mutilated, destroyed,
lost or stolen Securities in the last paragraph of Section 2.9, no right or
remedy herein conferred upon or reserved to the Trustee or 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 existing right or
remedy hereunder, or otherwise, shall not prevent the concurrent assertion or
employment of any other appropriate right or remedy.
SECTION 6.14. Waiver of Usury, Stay or Extension Laws. Each of the
---------------------------------------
Company and the Guarantors 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 usury, stay or extension law
wherever enacted, now or at any time hereafter in force, which may affect the
covenants or the performance of this Indenture; and each of the Company and the
Guarantors (to the extent that it may lawfully do so) hereby expressly waives
all benefit or advantage of any such law and covenants that it will not 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 6.15. Undertaking for Costs. In any suit for the enforcement
---------------------
of any right or remedy under this Indenture or in any suit against the Trustee
for any action taken or omitted by it as Trustee, a court in its discretion may
require the filing by any party litigant in the suit of an undertaking to pay
the costs of the suit, and the court in its discretion may assess reasonable
costs, including reasonable attorneys' fees, against any party litigant in the
suit having due regard to the merits and good faith of the claims or defenses
made by the party litigant.
46
ARTICLE VII
Trustee
-------
SECTION 7.1. Certain Duties and Responsibilities of the Trustee.
--------------------------------------------------
(a) Except during the continuance of an Event of Default, the Trustee's duties
and responsibilities under this Indenture shall be governed by Section 315(a) of
the Trust Indenture Act.
(b) In case an Event of Default has occurred and is continuing with
respect to the Securities of any series, the Trustee shall exercise the rights
and powers vested in it by this Indenture with respect to the Securities of such
series, and shall use the same degree of care and skill in their exercise, as a
prudent person would exercise or use under the circumstances in the conduct of
his own affairs.
(c) No provision of this Indenture shall be construed to relieve the
Trustee from liability for its own negligent action, its own negligent failure
to act, or its own willful misconduct, except that: this subsection shall not be
construed to limit the effect of subsection (a) of this Section; the Trustee
shall not be liable for any error of judgment made in good faith by a
Responsible Officer, unless it shall be proved that the Trustee was negligent in
ascertaining the pertinent facts; and the Trustee shall not be liable with
respect to any action taken or omitted to be taken by it in good faith in
accordance with the direction of the Holders in accordance with Section 6.8
relating to the time, method and place of conducting any proceeding for any
remedy available to the Trustee, or exercising any trust or power conferred upon
the Trustee, under the Indenture.
SECTION 7.2. Rights of Trustee. Subject to the provisions of the
-----------------
Trust Indenture Act:
(a) the Trustee may conclusively rely and shall be protected in acting or
refraining from acting upon any document believed by it to be genuine and to
have been signed or presented by the proper party or parties. The Trustee need
not investigate any fact or matter stated in the document;
(b) any request or direction of the Company mentioned herein shall be
sufficiently evidenced by a Company Request or Company Order and any resolution
of the Board of Directors may be sufficiently evidenced by a Board Resolution;
(c) 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,
conclusively rely upon an Officers' Certificate;
(d) the Trustee may consult with counsel of its selection and the advice
of such counsel or any Opinion of Counsel shall be full and complete
authorization and protection in
47
respect of any action taken, suffered or omitted by it hereunder in good faith
and in reliance thereon;
(e) the Trustee may act through agents or attorneys and shall not be
responsible for the misconduct or negligence of any agent or attorney appointed
with due care;
(f) the Trustee shall not be liable for any action it takes or omits to
take in good faith which it believes to be authorized or within its rights or
powers;
(g) the Trustee shall not be required 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 its rights or powers if it shall have
reasonable grounds for believing that repayment of such funds or adequate
indemnity against such risk or liability is not reasonably assured to it;
(h) the Trustee shall not be bound to make any investigation into the
facts or matters stated in any resolution, certificate, statement, instrument,
opinion, report, notice, request, direction, consent, order, bond, debenture,
note, other evidence of indebtedness or other paper or document, but the
Trustee, in its discretion, may make such further inquiry or investigation into
such facts or matters as it may see fit, and, if the Trustee shall determine to
make such further inquiry or investigation it shall be entitled to examine the
books, records and premises of the Company, personally or by agent or attorney;
(i) 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 reasonable security or indemnity against the costs, expenses and
liabilities which might be incurred by it in compliance with such request or
direction;
(j) whether or not therein expressly so provided, every provision of this
Indenture relating to the conduct or affecting the liability of or affording
protection to the Trustee shall be subject to the provisions of this Section
7.2;
(k) the rights, privileges, protections, immunities and benefits given to
the Trustee, including, without limitation, its right to be indemnified, are
extended to, and shall be enforceable by, the Trustee in each of its capacities
hereunder, and to each agent, custodian and other Person employed to act
hereunder.
SECTION 7.3. Trustee May Hold Securities. The Trustee, any Paying
---------------------------
Agent, any Registrar or any other agent of the Company in its in individual or
any other capacity, may become the owner or pledgee of Securities and, subject
to Sections 310(b) and 311 of the Trust Indenture Act, may otherwise deal with
the Company, an Affiliate of the Company or Subsidiary of the Company with the
same rights it would have if it were not Trustee, Paying Agent, Registrar or
such other agent.
SECTION 7.4. Money Held in Trust. Money held by the Trustee in
-------------------
trust hereunder need not be segregated from other funds except to the extent
required by law. The
48
Trustee shall be under no liability for interest on any money received by it
hereunder except as otherwise agreed upon in writing with the Company.
SECTION 7.5. Trustee's Disclaimer. The recitals contained herein
--------------------
and in the Securities, except the Trustee's certificate of authentication, shall
be taken as the statements of the Company, and the Trustee assumes no
responsibility for their correctness. The Trustee makes no representation as to
the validity or adequacy of this Indenture or the Securities or any coupon. The
Trustee shall not be accountable for the Company's use of the proceeds from the
Securities or for monies paid over to the Company pursuant to the Indenture.
SECTION 7.6. Notice of Defaults. If a Default occurs and is
------------------
continuing with respect to the Securities of any series and if it is actually
known to a Responsible Officer of the Trustee, the Trustee shall, within 90 days
after it occurs, transmit by mail to the Holders of Securities of such series,
in the manner and to the extent provided in Section 313(c) of the Trust
Indenture Act, notice of all Defaults known to it unless such Default shall have
been cured or waived; provided, however, that except in the case of a Default in
-------- -------
payment on the Securities of any series, the Trustee may withhold the notice if
and so long as its board of directors, its executive committee or a committee of
its Responsible Officers in good faith determines that withholding such notice
is in the interests of Holders of Securities of that series; and provided,
--------
further, that in the case of any Default of the character specified in Section
- - -------
6.1(c) with respect to Securities of such series, no such notice to Holder shall
be given until at least 30 days after the occurrence thereof.
SECTION 7.7. Reports by Trustee to Holders. Within 60 days after
-----------------------------
each May 15 of each year commencing with the first May 15 after Closing Date,
the Trustee shall transmit by mail to all Holders of Securities as provided in
Section 313(c) of the Trust Indenture Act a brief report dated as of such May 15
if required by and in compliance with Section 313(a) of the Trust Indenture Act.
The Trustee shall also comply with Section 313(b) of the Trust Indenture Act, if
applicable. A copy of each such report required pursuant to Section 313(a) or
313(b) of the Trust Indenture Act shall, at the time of such transmission to
Holders, be filed by the Trustee with each stock exchange, if any, upon which
the Securities are listed, with the Commission and with the Company. The
Company will promptly notify the Trustee when the Securities are listed on, or
delisted from, any stock exchange.
SECTION 7.8. Securityholder Lists. The Trustee shall preserve in as
--------------------
current a form as is reasonably practicable the most recent list available to it
of the names and addresses of Holders of Securities of each series. If the
Trustee is not the Registrar, the Company shall furnish to the Trustee
semiannually on or before the last day of June and December in each year, and at
such other times as the Trustee may request in writing, a list, in such form and
as of such date as the Trustee may reasonably require containing all the
information in the possession or control of the Registrar, the Company or any of
its Paying Agents other than the Trustee as to the names and addresses of
Holders of Securities of each such series.
SECTION 7.9. Compensation and Indemnity. (a) The Company shall pay
--------------------------
to the Trustee from time to time such reasonable compensation for its services
as the Company and the
49
Trustee shall agree in writing from time to time. The Trustee's compensation
shall not be limited by any law on compensation of a trustee of an express
trust. The Company shall reimburse the Trustee upon request for all reasonable
out-of-pocket expenses incurred by it in connection with the performance of its
duties under this Indenture. Such expenses shall include the reasonable
compensation and expenses of the Trustee's agents and counsel.
(b) The Company shall indemnify the Trustee or any Predecessor Trustee and
their agents for, and hold them harmless against, any loss or liability damage,
claim or reasonable expense including taxes (other than taxes based upon or
determined or measured by the income of the Trustee) incurred by it arising out
of or in connection with its acceptance or administration of the trust or trusts
hereunder, including the reasonable costs and expenses of defending itself
against any claim or liability in connection with the exercise or performance of
any of its powers or duties hereunder. The Trustee shall notify the Company
promptly of any claim for which it may seek indemnity. The Company shall defend
the claim and the Trustee shall cooperate in the defense. The Company need not
pay for any settlement made without its consent.
(c) The Company need not reimburse any expense or indemnify against any
loss, liability, damage or claim incurred by the Trustee through negligence or
bad faith or willful misconduct.
(d) To secure the payment obligations of the Company pursuant to this
Section, the Trustee shall have a lien prior to the Securities of any series on
all money or property held or collected by the Trustee, except that held in
trust to pay principal, premium, if any, and interest, if any, on particular
Securities.
When the Trustee incurs expenses or renders services in connection
with an Event of Default specified in Section 6.1(e) or Section 6.1(f), 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.
The provisions of this Section shall survive the termination of this
Indenture.
SECTION 7.10. Replacement of Trustee. (a) The resignation or removal of
the Trustee and the appointment of a successor Trustee shall become effective
only upon the successor Trustee's acceptance of appointment as provided in
Section 7.11.
(b) The Trustee may resign at any time with respect to the Securities of
any series by giving written notice thereof to the Company.
(c) The Holders of a majority in aggregate principal amount of the
Outstanding Securities of any series may remove the Trustee with respect to that
series by so notifying the Trustee and the Company and may appoint a successor
Trustee for such series with the Company's consent.
(d) If at any time:
50
(1) the Trustee fails to comply with Section 310(b) of the Trust
Indenture Act after written request therefor by the Company or by any
Holder who has been a bona fide Holder of a Security for at least six
months; or
(2) the Trustee shall cease to be eligible under Section 7.12 of this
Indenture or Section 310(a) of the Trust Indenture Act and shall fail to
resign after written request therefor by the Company or by any Holder of a
Security who has been a bona fide Holder of a Security for at least six
months; or
(3) the Trustee becomes incapable of acting, is adjudged a bankrupt or
an insolvent or a receiver or public officer takes charge of the Trustee or
its property or affairs for the purpose of rehabilitation, conservation or
liquidation, then, in any such case, (i) the Company by or pursuant to a
Board Resolution may remove the Trustee with respect to all Securities, or
(ii) subject to Section 315(e) of the Trust Indenture Act, 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 removal of the Trustee with respect to all
Securities and the appointment of a successor Trustee or Trustees.
(e) If the instrument of acceptance by a successor Trustee required by
Section 7.11 shall not have been delivered to the Trustee within 30 days after
the giving of such notice of resignation or removal, the Trustee resigning or
being removed may petition any court of competent jurisdiction for the
appointment of a successor Trustee with respect to the Securities of such
series.
(f) If the Trustee resigns or is removed or if a vacancy exists in the
office of Trustee for any reason, with respect to Securities of one or more
series, the Company, by or pursuant to a Board Resolution, shall promptly
appoint a successor Trustee with respect to the Securities of that or those
series (it being understood that any such successor Trustee may be appointed
with respect to the Securities of one or all of such series and that at any time
there shall be only one Trustee with respect to the Securities of any particular
series) and shall comply with the applicable requirements of Section 7.11. If,
within one year after such resignation, removal or incapability, or the
occurrence of such vacancy, a successor Trustee with respect to the Securities
of any series shall be appointed by the Holders of a majority in principal
amount of the Outstanding Securities of such series delivered to the Company and
the retiring Trustee, the successor Trustee so appointed shall, forthwith upon
its acceptance of such appointment in accordance with the applicable
requirements of Section 7.11, become the successor Trustee with respect to the
Securities of such series and to that extent supersede the successor Trustee
appointed by the Company. If no successor Trustee with respect to the
Securities of any series shall have been so appointed by the Company or the
Holders and accepted appointment in the manner required by Section 7.11, any
Holder who has been a bona fide Holder of a Security of such series 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
with respect to the Securities of such series.
51
SECTION 7.11. Acceptance of Appointment by Successor. (a) In case
--------------------------------------
of the appointment hereunder of a successor Trustee with respect to all
Securities, every such successor Trustee shall execute, acknowledge and deliver
to the Company and to the retiring Trustee an instrument accepting such
appointment. Thereupon, the resignation or removal of the retiring Trustee
shall become effective, and the successor Trustee, without further act, deed or
conveyance, shall become vested with all the rights, powers and duties of the
retiring Trustee; but, on the request of the Company or the successor Trustee,
such retiring Trustee shall, upon payment of its charges, execute and deliver an
instrument transferring to such successor Trustee all the rights, powers and
trusts of the retiring Trustee and shall duly assign, transfer and deliver to
such successor Trustee all property and money held by such retiring Trustee
hereunder.
(b) In case of the appointment hereunder of a successor Trustee with
respect to the Securities of one or more (but not all) series, the Company, the
retiring Trustee and such successor Trustee shall execute and deliver an
indenture supplemental hereto wherein such successor Trustee shall accept such
appointment and which (i) shall contain such provisions as shall be necessary or
desirable to transfer and confirm to, and to vest in, such successor Trustee all
the rights, powers, trusts and duties of the retiring Trustee with respect to
the Securities of that or those series to which the appointment of such
successor Trustee relates, (ii) if the retiring Trustee is not retiring with
respect to all Securities, shall contain such provisions as shall be deemed
necessary or desirable to confirm that all the rights, powers, trusts and duties
of the retiring Trustee with respect to the Securities of that or those series
as to which the retiring Trustee is not retiring shall continue to be vested in
the retiring Trustee, and (iii) shall add to or change any of the provisions of
this Indenture as shall be necessary to provide for or facilitate the
administration of the trusts hereunder by more than one Trustee, it being
understood that nothing herein or in such supplemental indenture shall
constitute such Trustees co-trustees of the same trust and that each such
Trustee shall be trustee of a trust or trusts hereunder separate and apart from
any trust or trusts hereunder administered by any other such Trustee and upon
the execution and delivery of such supplemental indenture the resignation or
removal of the retiring Trustee shall become effective to the extent provided
therein and each such successor Trustee, without any further act, deed or
conveyance, shall become vested with all the rights, powers, trusts and duties
of the retiring Trustee with respect to the Securities of that or those series
to which the appointment of such successor Trustee relates; but, on request of
the Company or any successor Trustee, such retiring Trustee shall duly assign,
transfer and deliver to such successor Trustee all property and money held by
such retiring Trustee hereunder with respect to the Securities of that or those
series to which the appointment of such successor Trustee relates.
(c) Upon request of any such successor Trustee, the Company shall execute
any and all instruments for more fully and certainly vesting in and confirming
to the successor Trustee all such rights, powers and trusts referred to in
paragraph (a) or (b) of this Section, as the case may be.
(d) No successor Trustee shall accept its appointment unless at the time
of such acceptance such successor Trustee shall be qualified and eligible under
the Trust Indenture Act.
52
(e) The Company shall give notice of each resignation and each removal of
the Trustee with respect to the Securities of any series and each appointment of
a successor Trustee with respect to the Securities of any series in the manner
provided for notices to the Holders of Securities in Section 11.2. Each notice
shall include the name of the successor Trustee with respect to the Securities
of such series and the address of its Corporate Trust Office.
SECTION 7.12. Eligibility; Disqualification. There shall at all
-----------------------------
times be a Trustee hereunder which shall be eligible to act as Trustee under
Section 310(a)(1) of the Trust Indenture Act and shall have a combined capital
and surplus of at least $75,000,000. If such corporation publishes reports of
condition at least annually, pursuant to law or 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 such
corporation 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, it
shall resign immediately in the manner and with the effect heretofore specified
in this Article.
SECTION 7.13. 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 succeeding to all or substantially all the corporate trust business
of the Trustee, shall be the successor of the Trustee hereunder, provided such
corporation shall be otherwise qualified and eligible under this Article,
without the execution or filing of any paper or any further act on the part of
any of the parties hereto. In case any Securities shall have been
authenticated, but not delivered, by the Trustee then in office, any successor
by merger, conversion or consolidation to such authenticating Trustee may adopt
such authentication and deliver the Securities so authenticated with the same
effect as if such successor Trustee had itself authenticated such Securities.
SECTION 7.14. Appointment of Authenticating Agent. The Trustee may
-----------------------------------
appoint an Authenticating Agent with respect to one or more series of Securities
which shall be authorized to act on behalf of the Trustee to authenticate
Securities of such series issued upon original issue, exchange, registration of
transfer or partial redemption thereof, and Securities so authenticated shall be
entitled to the benefits of this Indenture and shall be valid and obligatory for
all purposes as if authenticated by the Trustee hereunder. Any such appointment
shall be evidenced by an instrument in writing signed by a Responsible Officer
of the Trustee, a copy of which instrument shall be promptly furnished to the
Company. Wherever reference is made in this Indenture to the authentication and
delivery of Securities by the Trustee or the Trustee's certificate of
authentication, such reference shall be deemed to include authentication and
delivery on behalf of the Trustee by an Authenticating Agent and a certificate
of authentication executed on behalf of the Trustee by an Authenticating Agent.
Each Authenticating Agent shall be acceptable to the Company and shall at all
times be a bank or trust company or corporation organized and doing business and
in good standing under the laws of the United States of America or of any State
or the District of Columbia, authorized under such laws to act as Authenticating
Agent, having a combined capital and surplus of not less than $25,000,000 and
53
subject to supervision or examination by Federal or State authorities. If such
Authenticating Agent publishes reports of condition at least annually, pursuant
to law or the requirements of the aforesaid supervising or examining authority,
then for the purposes of this Section, the combined capital and surplus of such
Authenticating Agent shall be deemed to be its combined capital and surplus as
set forth in its most recent report of condition so published. In case at any
time an Authenticating Agent shall cease to be eligible in accordance with the
provisions of this Section, such Authenticating Agent shall resign immediately
in the manner and with the effect specified in this Section.
Any corporation into which an Authenticating Agent may be merged or
converted or with which it may be consolidated, or any corporation resulting
from any merger, conversion or consolidation to which such Authenticating Agent
shall be a party, or any corporation succeeding to the corporate agency or
corporate trust business of an Authenticating Agent, shall continue to be an
Authenticating Agent, provided such corporation shall be otherwise eligible
under this Section, without the execution or filing of any paper or further act
on the part of the Trustee or the Authenticating Agent.
An Authenticating Agent for any series of Securities may at any time
resign by giving written notice of resignation to the Trustee for such series
and to the Company. The Trustee for any series of Securities may at any time
terminate the agency of an Authenticating Agent by giving written notice of
termination to such Authenticating Agent and to the Company. Upon receiving
such notice of resignation or upon such a termination, or in case at any time
such Authenticating Agent shall cease to be eligible in accordance with the
provisions of this Section, the Trustee for such series may appoint a successor
Authenticating Agent which shall be acceptable to the Company and shall give
notice of such appointment to all Holders of Securities of the series with
respect to which such Authenticating Agent will serve in the manner set forth in
Section 11.2. Any successor Authenticating Agent upon acceptance of its
appointment hereunder shall become vested with all the rights, powers and duties
of its predecessor hereunder, with like effect as if originally named as an
Authenticating Agent herein. No successor Authenticating Agent shall be
appointed unless eligible under the provisions of this Section.
The Company agrees to pay to each Authenticating Agent from time to
time reasonable compensation including reimbursement of its reasonable expenses
for its services under this Section.
If an appointment with respect to one or more series is made pursuant
to this Section, the Securities of such series may have endorsed thereon, in
addition to or in lieu of the Trustee's certificate of authentication, an
alternate certificate of authentication substantially in the following form:
54
This is one of the Securities of the series described in the within-
mentioned Indenture.
_________________________________
as Trustee
by _________________________________
as Authenticating Agent
by _________________________________
Authorized Signatory
ARTICLE VIII
Discharge of Indenture; Defeasance
----------------------------------
SECTION 8.1. Termination of Company's and Guarantors' Obligations
----------------------------------------------------
Under this Indenture. This Indenture shall upon a Company Request cease to be
- - --------------------
of further effect with respect to the Securities of or within any series (except
as to any surviving rights of registration of transfer or exchange of such
Securities and replacement of such Securities which may have been lost, stolen
or mutilated as herein expressly provided for) and the Trustee, at the expense
of the Company, shall execute proper instruments acknowledging satisfaction and
discharge of this Indenture with respect to such Securities when
(1) either
(A) all such Securities previously authenticated and delivered (other
than (i) such Securities which have been destroyed, lost or stolen and
which have been replaced or paid, as provided in Section 2.9, and (ii) such
Securities for whose payment money has theretofore been deposited in trust
or segregated and held in trust by the Company and thereafter repaid to the
Company or discharged from such trust as provided in Section 3.3) have been
delivered to the Trustee for cancellation; or
(B) all Securities of such series not theretofore delivered to the
Trustee for cancellation
(i) have become due and payable, or
(ii) will become due and payable at their Stated Maturity within
one year, or
(iii) if redeemable at the option of the Company, are to be
called for redemption within one year under arrangements satisfactory
to the Trustee for the
55
giving of notice of redemption by the Trustee in the name, and at the
expense, of the Company, and the Company, in the case of (i), (ii) or
(iii) above, has irrevocably deposited or caused to be deposited with
the Trustee as trust funds in trust for the purpose an amount in the
currency in which the Securities of such series are payable,
sufficient to pay and discharge the entire indebtedness on such
Securities not theretofore delivered to the Trustee for cancellation,
for principal, premium, if any, and interest, if any, with respect
thereto, on the date of such deposit (in the case of Securities which
have become due and payable) or at the Stated Maturity or Redemption
Date, as the case may be;
(2) the Company has paid or caused to be paid all other sums payable
hereunder by the Company; and
(3) the Company delivered to the Trustee an Officers' Certificate and an
Opinion of Counsel, each stating that all conditions precedent herein provided
for relating to the satisfaction and discharge of this Indenture as to such
series of Securities have been complied with.
Notwithstanding the satisfaction and discharge of this Indenture, the obligation
of the Company to the Trustee and any predecessor Trustee under Section 7.9, the
obligations of the Company to any Authenticating Agent under Section 7.14 and,
if money shall have been deposited with the Trustee pursuant to subclause (B) of
clause (1) of this Section, the obligations of the Trustee under Section 8.2 and
the last paragraph of Section 3.3 shall survive.
SECTION 8.2. Application of Trust Funds. Subject to the provisions
--------------------------
of the last paragraph of Section 3.3, all money deposited with the Trustee
pursuant to Section 8.1 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 Company acting as its own
Paying Agent) as the Trustee may determine, to the Persons entitled thereto, of
the principal, premium, if any, and interest, if any, for whose payment such
money has been deposited with or received by the Trustee, but such money need
not be segregated from other funds except to the extent required by law.
SECTION 8.3. Company's Option to Effect Defeasance or Covenant
-------------------------------------------------
Defeasance. The Company may at its option by or pursuant to Board Resolution,
- - ----------
at any time, elect to have Section 8.4 or Section 8.5 be applied to such
Outstanding Securities of any series upon compliance with the conditions set
forth below in this Article.
SECTION 8.4. Defeasance and Discharge. Upon the Company's exercise
------------------------
of the option specified in Section 8.3 applicable to this Section with respect
to the Securities of or within a series, the Company and the Guarantors shall be
deemed to have been discharged from its obligations with respect to such
Securities on and after the date the conditions set forth in Section 8.6 are
satisfied (hereinafter "defeasance"). For this purpose, such defeasance means
that the Company shall be deemed to have paid and discharged the entire
indebtedness represented by such Securities which shall thereafter be deemed to
be "Outstanding" only for the purposes of Section 8.7 and the other Sections of
this Indenture referred to in clause (ii) of this Section, and to have satisfied
all its other obligations under such Securities and this Indenture insofar as
such
56
Securities are concerned (and the Trustee, at the expense of the Company, shall
on a Company Order execute proper instruments acknowledging the same), except
the following, which shall survive until otherwise terminated or discharged
hereunder: (i) the rights of Holders of such Securities to receive, solely from
the trust funds described in Section 8.6(a) and as more fully set forth in such
Section, payments in respect of the principal of, premium, if any, and interest,
if any, on such Securities when such payments are due; (ii) the Company's and
the Guarantors' obligations with respect to such Securities under Sections 2.3,
2.6, 2.9, 3.2 and 3.3; (iii) the rights, powers, trusts, duties and immunities
of the Trustee hereunder and (iv) this Article VIII. Subject to compliance with
this Article VIII, the Company may exercise its option under this Section
notwithstanding the prior exercise of its option under Section 8.5 with respect
to such Securities. Following a defeasance, payment of such Securities may not
be accelerated because of an Event of Default.
SECTION 8.5. Covenant Defeasance. Upon the Company's exercise of
-------------------
the option specified in Section 8.3 applicable to this Section with respect to
any Securities of or within a series, the Company shall be released from its
obligations under Sections 4.1, 3.4, 3.7, 3.8 and 3.9 (and with respect to
Section 3.6, shall be required to certify only with respect to those covenants
not defeased pursuant to this Section 8.5) with respect to such Securities on
and after the date the conditions set forth in Section 8.6 are satisfied
(hereinafter, "covenant defeasance"), and such 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 Sections 4.1, 3.4, 3.7, 3.8 and 3.9, but shall continue to be
deemed "Outstanding" for all other purposes hereunder. For this purpose, such
covenant defeasance means that, with respect to such Securities, 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 such other covenant,
whether directly or indirectly, by reason of any reference elsewhere herein to
any such Section or such other covenant or by reason of reference in any such
Section or such other covenant 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 6.1(c) or otherwise, but, except as specified above,
the remainder of this Indenture and such Securities shall be unaffected thereby.
SECTION 8.6. Conditions to Defeasance or Covenant Defeasance. The
-----------------------------------------------
following shall be the conditions to the application of Section 8.4 or Section
8.5 to any Securities of or within a series:
(a) The Company shall have deposited or caused to be deposited irrevocably
with the Trustee (or another trustee satisfying the requirements of Section 7.12
who shall agree to comply with, and shall be entitled to the benefits of, the
provisions of Sections 8.3 through 8.9 inclusive and the last paragraph of
Section 3.3 applicable to the Trustee, for purposes of such Sections also a
"Trustee") as trust funds in trust for the purpose of making the payments
referred to in clauses (x) and (y) of this Section 8.6(a), specifically pledged
as security for, and dedicated solely to, the benefit of the Holders of such
Securities, with instructions to the Trustee as to the application thereof, (A)
money in an amount, or (B) Government Obligations which through the payment of
interest, if any, and principal in respect thereof in accordance with their
terms will provide, not
57
later than one day before the due date of any payment referred to in clause (x)
or (y) of this Section 8.6(a), money in an amount or (C) a combination thereof
in an amount sufficient, in the opinion of a nationally recognized firm of
independent certified public accountants expressed in a written certification
thereof delivered to the Trustee, to pay and discharge, and which shall be
applied by the Trustee to pay and discharge the principal of, premium, if any,
and interest, if any, on such Securities on the Maturity of such principal or
installment of principal or interest, if any. Before such a deposit the Company
may make arrangements satisfactory to the Trustee for the redemption or purchase
of Securities at a future date or dates in accordance with Article V which shall
be given effect in applying the foregoing.
(b) Such defeasance or covenant defeasance shall not result in a breach or
violation of, or constitute a Default or Event of Default under, this Indenture
or result in a breach or violation of, or constitute a default under, any other
material agreement or instrument to which the Company is a party or by which it
is bound, in each case, on the date of such deposit pursuant to Section 8.6(a).
(c) In the case of an election under Section 8.4, the Company shall have
delivered to the Trustee an Officers' Certificate and an Opinion of Counsel to
the effect that (i) the Company has received from, or there has been published
by, the Internal Revenue Service a ruling, or (ii) since the date of execution
of this 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 shall
confirm that, the Holders of such 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 amount and in the same manner and at
the same times, as would have been the case if such deposit, defeasance and
discharge had not occurred.
(d) In the case of an election under Section 8.5, the Company shall have
delivered to the Trustee an Opinion of Counsel to the effect that the Holders of
such 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.
(e) The Company shall have delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that all conditions
precedent to the defeasance under Section 8.4 or the covenant defeasance under
Section 8.5 (as the case may be) have been complied with.
(f) No Default or Event of Default under Section 6.1(e) or 6.1(f) with
respect to such Securities shall have occurred and be continuing during the
period commencing on the date of such deposit and ending on the 91st day after
such date (it being understood that this condition shall not be deemed satisfied
until the expiration of such period).
(g) Such Defeasance or Covenant Defeasance shall not result in the trust
arising from such deposit constituting an investment company within the meaning
of the Investment Company Act of 1940 unless such trust shall be registered
under such Act or exempt from registration thereunder.
58
SECTION 8.7. Deposited Money and Government Obligations to Be Held in
--------------------------------------------------------
Trust. Subject to the provisions of the last paragraph of Section 3.3, all
- - -----
money and Government Obligations (including the proceeds thereof) deposited with
the Trustee pursuant to Section 8.6 in respect of any Securities of any series
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 (including the Company acting as its own
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, premium, if any,
and interest, if any, but such money need not be segregated from other funds
except to the extent required by law.
SECTION 8.8. Repayment to Company. To the extent permitted by the
-------------------
Financial Accounting Standards Board Statement of Financial Accounting Standards
No. 76, as amended or interpreted by the Financial Accounting Standards Board
from time to time, or any successor thereto ("Standard No. 76"), or to the
extent permitted by the Commission, the Trustee shall, from time to time, take
one or more of the following actions as specified in a Company Request: (a)
retransfer, reassign and deliver to the Company any securities deposited with
the Trustee pursuant to Section 8.6(a), provided that the Company shall, in
substitution therefor, simultaneously transfer, assign and deliver to the
Trustee other Governmental Obligations appropriate to satisfy the Company's
obligations in respect of the relevant Securities; and (b) the Trustee and
Paying Agent shall promptly pay to the Company upon Company Request any excess
money or securities held by them at any time, including, without limitation, any
assets deposited with the Trustee pursuant to Section 8.6(a) exceeding those
necessary for the purposes of Section 8.6(a). The Trustee shall not take the
actions described in subsections (a) and (b) of this Section 8.8 unless it shall
have first received a written report of Ernst & Young LLP, or another nationally
recognized independent public accounting firm, (i) expressing their opinion that
the contemplated action is permitted by Standard No. 76 or the Commission for
transactions accounted for as extinguishment of debt under the circumstances
described in paragraph 3.c of Standard No. 76 or any successor provision, and
(ii) verifying the accuracy, after giving effect to such action or actions, of
the computations which demonstrate that the amounts remaining to be earned on
the Government Obligations deposited with the Trustee pursuant to Section 8.6(a)
will be sufficient for purposes of Section 8.6(a).
SECTION 8.9. Indemnity for Government Obligations. The Company
------------------------------------
shall pay, and shall indemnify the Trustee against, any tax, fee or other charge
imposed on or assessed against Government Obligations deposited pursuant to this
Article or the principal and interest, if any, and any other amount received on
such Government Obligations.
ARTICLE IX
Supplemental Indentures
-----------------------
SECTION 9.1. Supplemental Indentures Without Consent of Holders.
--------------------------------------------------
Without the consent of any Holders, the Company, when authorized by or pursuant
to a Board Resolution, the Guarantors and the Trustee at any time and from time
to time, may enter into indentures
59
supplemental hereto, in form reasonably satisfactory to the Trustee, for any of
the following purposes:
(a) to evidence the succession of another corporation to the Company and
the assumption by any such successor of the covenants and obligations of the
Company herein and in the Securities; or
(b) to add to the covenants of the Company or the Guarantors for the
benefit of the Holders of all or any series of Securities (and if such covenants
are to be for the benefit of less than all series of Securities, stating that
such covenants are expressly being included solely for the benefit of such
series) or to surrender any right or power herein conferred upon the Company or
the Guarantors; provided, however, that in respect of any such additional
-------- -------
covenant such supplemental indenture may provide for a particular period of
grace after Default (which period may be shorter or longer than that allowed in
the case of other Defaults) or may limit the remedies available to the Trustee
upon such Default; or
(c) to add any additional Events of Default with respect to all or any
series of Securities (and if such Events of Default are to be for the benefit of
less than all series of Securities, stating that such Events of Default are
expressly included solely for the benefit of such series); or
(d) to secure the Securities; or
(e) to establish the form or terms of Securities of any series as
permitted by Section 2.1; or
(f) to evidence and provide for the acceptance of appointment hereunder by
a successor Trustee with respect to the Securities of one or more series and to
add to or change any of the provisions of this Indenture as shall be necessary
to provide for or facilitate the administration of the trusts hereunder by more
than one Trustee, pursuant to the requirements of Section 7.11; or
(g) to correct or supplement any provision herein which may be
inconsistent with any other provision herein or to make any other provisions
with respect to matters or questions arising under this Indenture, provided such
--------
action shall not adversely affect the interests of the Holders of Securities of
any series affected thereby; or
(h) to cure an ambiguity or correct any mistake, provided such action
--------
shall not adversely affect the interests of the Holders of Securities of any
series; or
(i) to add a Guarantor pursuant to Section 10.6 or remove a Guarantor in
respect of any series which, in accordance with the terms of this Indenture,
ceases to be liable in respect of its Guarantee.
SECTION 9.2. Supplemental Indentures with Consent of Holders. With
-----------------------------------------------
the written consent of the Holders of a majority of the aggregate principal
amount of the Outstanding
60
Securities of each series adversely affected by such supplemental indenture
(with each such series voting as a class), the Company, when authorized by or
pursuant to a Board Resolution, and the Trustee may enter into an indenture or
indentures supplemental hereto to add any provisions to or to change or
eliminate any provisions of this Indenture or of any other indenture
supplemental hereto or to modify the rights of the Holders of such Securities;
provided, however, that without the consent of the Holder of each Outstanding
- - -------- -------
Security affected thereby, a supplemental indenture under this Section may not:
(a) change the Stated Maturity of the principal of, or premium, if any,
on, or any installment of principal of or premium, if any, or interest, if any,
on, any Security, or reduce the principal amount thereof or the rate of interest
thereon or any premium payable upon the redemption, repurchase or repayment
thereof, or change the manner in which the amount of any principal thereof or
premium, if any, or interest, if any, thereon is determined, or change the Place
of Payment where or the currency in which any Security or any premium 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 (or, in
the case of redemption, on or after the Redemption Date);
(b) reduce the percentage in principal amount of the Outstanding
Securities of such series affected thereby, the consent of whose Holders is
required for any such supplemental indenture, or the consent of whose Holders is
required for any waiver (of compliance with certain provisions of this Indenture
or certain defaults hereunder and their consequences) provided for in this
Indenture;
(c) waive a default in the payment of principal of, premium, if any, or
interest, if any, on, any Security of such series;
(d) change any obligation of the Company to maintain an office or agency
in the places and for the purposes specified in Section 3.2; or
(e) make any change in Section 6.7 or this Section 9.2 except to increase
any percentage or to provide that certain other provisions of this Indenture
cannot be modified or waived without the consent of the Holders of each
Outstanding Security of such series affected thereby.
A supplemental indenture which changes or eliminates any covenant or
other provision of this Indenture, which has expressly been included solely for
the benefit of one or more particular series of Securities, or which modifies
the rights of the Holders of Securities of such series with respect to such
covenant or other provision, shall be deemed not to affect the rights under this
Indenture of the Holders of Securities of any other series.
It is not necessary under this Section 9.2 for the Holders to consent
to the particular form of any proposed supplemental indenture, but it is
sufficient if they consent to the substance thereof.
61
Upon the request of the Company, accompanied by an Officers'
Certificate and a Board Resolution 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 Company in the
execution of such supplemental indenture unless such supplemental indenture
affects the Trustee's own rights, duties or immunities under this Indenture or
otherwise, in which case the Trustee may, but shall not be obligated to, enter
into such supplemental indenture.
SECTION 9.3. Compliance with Trust Indenture Act. Every amendment to
-----------------------------------
this Indenture or the Securities of each series shall be set forth in a
supplemental indenture that complies with the Trust Indenture Act as then in
effect.
SECTION 9.4. Execution of Supplemental Indentures. In executing,
------------------------------------
or accepting the additional trusts created by, any supplemental indenture
permitted by this Article or the modification thereby of the trusts created by
this Indenture, the Trustee shall be entitled to receive, and shall be fully
protected in relying upon, an Opinion of Counsel stating that the execution of
such supplemental indenture is authorized or permitted by this Indenture. The
Trustee may, but shall not be obligated to, enter into any such supplemental
indenture which affects the Trustee's own rights, duties or immunities under
this Indenture or otherwise.
SECTION 9.5. 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 and of any
coupon appertaining thereto shall be bound thereby.
SECTION 9.6. Reference in Securities to Supplemental Indentures.
--------------------------------------------------
ARTICLE X
Guarantees
----------
SECTION 10.1. Guarantees. (a) Subject to the provisions of this
----------
Article X, each Guarantor, jointly and severally, hereby irrevocably and
unconditionally guarantees to each Holder of Securities and to the Trustee on
behalf of the Holders (i) the due and punctual payment of principal of, premium,
if any, and interest in full on each Security when and as the same shall become
due and payable whether at Stated Maturity, by declaration of acceleration or
otherwise,
62
(ii) the due and punctual payment of interest on the overdue principal of,
premium, if any, and interest in full on the Securities, to the extent permitted
by law, and (iii) the due and punctual performance of all other Obligations of
the Company and the other Guarantors to the Holders or the Trustee, including
without limitation the payment of fees, expenses, indemnification or other
amounts, all in accordance with the terms of the Securities and this Indenture.
In case of the failure of the Company punctually to make any such principal or
interest payment or the failure of the Company or any other Guarantor to perform
any such other Obligation, each Guarantor hereby agrees to cause any such
payment to be made punctually when and as the same shall become due and payable,
whether at Stated Maturity, by declaration of acceleration or otherwise, and as
if such payment were made by the Company and to perform any such other
Obligation of the Company immediately. Each Guarantor hereby further agrees to
pay any and all expenses (including reasonable counsel fees and expenses)
incurred by the Trustee or the Holders in enforcing any rights under these
Guarantees. The Guarantees under this Article X are guarantees of payment and
not of collection.
(b) Each of the Company and the Guarantors hereby waives diligence,
presentment, demand of payment, filing of claims with a court in the event of
merger, insolvency or bankruptcy of the Company or any other Guarantor, any
right to require a proceeding first against the Company or any other Guarantor,
protest or notice with respect to the Securities or the indebtedness evidenced
thereby and all demands whatsoever, and covenants that these Guarantees will not
be discharged except by complete performance of the Obligations contained in the
Securities and in this Indenture, or as otherwise specifically provided therein
and herein.
(c) Each Guarantor hereby waives and relinquishes:
(i) any right to require the Trustee, the Holders or the Company
(each, a "Benefited Party") to proceed against the Company, the
Subsidiaries of the Company or any other Person or to proceed against or
exhaust any security held by a Benefited Party at any time or to pursue any
other remedy in any secured party's power before proceeding against the
Guarantors;
(ii) any defense that may arise by reason of the incapacity, lack of
authority, death or disability of any other Person or Persons or the
failure of a Benefited Party to file or enforce a claim against the estate
(in administration, bankruptcy or any other proceeding) of any other Person
or Persons;
(iii) demand, protest and notice of any kind (except as expressly
required by this Indenture), including but not limited to notice of the
existence, creation or incurring of any new or additional indebtedness or
obligation or of any action or non-action on the part of the Guarantors,
the Company, the Subsidiaries of the Company, any Benefited Party, any
creditor of the Guarantors, the Company or the Subsidiaries of the Company
or on the part of any other Person whomsoever in connection with any
obligations the performance of which are hereby guaranteed;
63
(iv) any defense based upon an election of remedies by a Benefited
Party, including but not limited to an election to proceed against the
Guarantors for reimbursement;
(v) any defense based upon any statute or rule of law which
provides that the obligation of a surety must be neither larger in amount
nor in other respects more burdensome than that of the principal;
(vi) any defense arising because of a Benefited Party's election, in
any proceeding instituted under the Bankruptcy Law, of the application of
Section 1111(b)(2) of the Bankruptcy Law; and
(vii) any defense based on any borrowing or grant of a security
interest under Section 364 of the Bankruptcy Law.
(d) Each Guarantor further agrees that, as between such Guarantor, on the
one hand, and Holders and the Trustee, on the other hand, (i) for purposes of
the relevant Guarantee, the maturity of the Obligations Guaranteed by such
Guarantee may be accelerated as provided in Article VI, notwithstanding any
stay, injunction or other prohibition preventing such acceleration in respect of
the Obligations guaranteed thereby, and (ii) in the event of any acceleration of
such Obligations (whether or not due and payable) such Obligations shall
forthwith become due and payable by such Guarantor for purposes of such
Guarantee.
(e) The Guarantees shall continue to be effective or shall be reinstated,
as the case may be, if at any time any payment, or any part thereof, of
principal of, premium, if any, or interest on any of the Securities is rescinded
or must otherwise be returned by the Holders or the Trustee upon the insolvency,
bankruptcy or reorganization of the Company or any of the Guarantors, all as
though such payment had not been made.
(f) Each Guarantor shall be subrogated to all rights of the Holders
against the Company in respect of any amounts paid by such Guarantor pursuant to
the provisions of the Guarantees or this Indenture; provided, however, that a
-------- -------
Guarantor shall not be entitled to enforce or to receive any payments until the
principal of, premium, if any, and interest on all Securities issued hereunder
shall have been paid in full.
SECTION 10.2 Obligations of Guarantors Unconditional. Each
---------------------------------------
Guarantor hereby agrees that its Obligations hereunder shall be Guarantees of
payment and shall be unconditional, irrespective of and unaffected by the
validity, regularity or enforceability of the Securities or this Indenture, or
of any amendment thereto or hereto, the absence of any action to enforce the
same, the waiver or consent by any Holder or by the Trustee with respect to any
provisions thereof or of this Indenture, the entry of any judgment against the
Company or any other Guarantor or any action to enforce the same or any other
circumstance which might otherwise constitute a legal or equitable discharge or
defense of a guarantor.
SECTION 10.3. Limitation on Guarantors' Liability. Each Guarantor
-----------------------------------
and by its acceptance hereof each Holder, hereby confirms that it is the
intention of all such parties that the
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Guarantee by such Guarantor pursuant to its Guarantee not constitute a
fraudulent transfer or conveyance for purposes of the Bankruptcy Law, the
Uniform Fraudulent Conveyance Act, the Uniform Fraudulent Transfer Act or any
similar federal or state law. To effectuate the foregoing intention, the Holders
and such Guarantor hereby irrevocable agree that the Obligations of such
Guarantor under this Article X shall be limited to the maximum amount as will,
after giving effect to all other contingent and fixed liabilities of such
Guarantor and after giving effect to any collections from or payments made by or
on behalf of any other Guarantor in respect of the Obligations of such other
Guarantor under this Article X, result in the Obligations of such Guarantor
under its Guarantee not constituting a fraudulent transfer or conveyance under
applicable federal or state law.
SECTION 10.4. Releases of Guarantees. (a) If the Securities are
----------------------
defeased in accordance with the terms of Article VIII of this Indenture, then
each Guarantor shall be deemed to have been released from and discharged of its
obligations under its Guarantee as provided in Article VIII hereof, subject to
the conditions stated therein.
(b) In the event an entity that is a Guarantor ceases to be a guarantor
under the Credit Agreements, as amended (or any other credit agreement renewing,
refunding, replacing, restating, refinancing or extending the Credit
Agreements), such entity shall also cease to be a Guarantor, whether or not a
Default or an Event of Default is then outstanding.
(c) Any Guarantor not released from its obligations under its Guarantee
shall remain liable for the full amount of principal of, premium, if any, and
interest on the Securities and for the other obligations of the Company, such
Guarantor and any other Guarantor under this Indenture as provided in this
Article X.
SECTION 10.5. Application of Certain Terms and Provisions to
----------------------------------------------
Guarantors. (a) For purposes of any provision of this Indenture which
- - ----------
provides for the delivery by any Guarantor of an Officers' Certificate or an
Opinion of Counsel or both, the definitions of such terms in Section 1.1 shall
apply to such Guarantor as if references therein to the Company were references
to such Guarantor.
(b) Any request, direction, order or demand which by any provision of this
Indenture is to be made by any Guarantor shall be sufficient if evidenced by a
Company Order; provided that the definition of such term in Section 1.1 hereof
--------
shall apply to such Guarantor as if references therein to the Company were
references to such Guarantor.
(c) Any notice or demand which by any provision of this Indenture is
required or permitted to be given or served by the Trustee or by the Holders of
Securities to or on any Guarantor may be given or served as described in Section
11.2 hereof.
(d) Upon any demand, request or application by any Guarantor to the
Trustee to take any action under this Indenture, such Guarantor shall furnish to
the Trustee such certificates and opinions as are required in Section 7.2 hereof
as if all references therein to the Company were references to such Guarantor.
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SECTION 10.6. Additional Guarantors. The Company shall cause each
---------------------
subsidiary of the Company that becomes a guarantor under the Credit Agreements,
as amended (or any other credit agreement renewing, refunding, replacing,
restating, refinancing or extending the Credit Agreements), after the Date of
this Indenture, to execute and deliver to the Trustee, promptly upon any such
formation or acquisition (a) a supplemental indenture in form and substance
satisfactory to the Trustee which subjects such subsidiary to the provisions of
this Indenture as a Guarantor, and (b) an Opinion of Counsel to the effect that
such supplemental indenture has been duly authorized and executed by such
subsidiary and constitutes the legal, valid, binding and enforceable obligation
of such subsidiary (subject to such customary exceptions concerning fraudulent
conveyance laws, creditors' rights and equitable principles as may be acceptable
to the Trustee in its discretion).
ARTICLE XI
Miscellaneous
-------------
SECTION 11.1. Trust Indenture Act Controls. If any provision of
----------------------------
this Indenture limits, qualifies or conflicts with another provision which is
required to be included in this Indenture by the TIA, the provision required by
the TIA shall control. Each Guarantor in addition to performing its obligations
under its Guarantee shall perform such other obligations as may be imposed upon
it with respect to this Indenture under the TIA.
SECTION 11.2. Notices. Any notice or communication shall be in
-------
writing, in the English language and delivered in person or mailed by first-
class mail addressed as follows:
if to the Company or any Guarantor:
Federal-Mogul Corporation
26555 Northwestern Highway
Southfield, Michigan 48034
Attention: General Counsel
if to the Trustee:
The Bank of New York
101 Barclay Street
New York, New York 10286
Attention: Corporate Trust Administration
The Company or the Trustee by notice to the other may designate
additional or different addresses for subsequent notices or communications.
Where this Indenture provides for notice to Securityholders of any
event, such notice shall be sufficiently given (unless otherwise herein
expressly provided) if (i) in writing and mailed, first-class postage prepaid,
to each Securityholder affected by such event, at his
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address as it appears in the Note Register, not later than the latest date (if
any), and not earlier than the earliest date (if any), prescribed for the giving
of such notice and (ii) published at least twice, in an Authorized Newspaper in
Luxembourg, which is expected to be the Luxemburger Wort, so long as the
Securities are listed on the Luxembourg Stock Exchange and the rules of the
Luxembourg Stock Exchange so require or, if not practicable, elsewhere in
Western Europe, on a Business Day the first such publication to be not earlier
than the earliest date and the second such publication to be not later than the
latest date herein prescribed for the giving of such notice.
In any case where notice to Securityholders is given by mail, neither
the failure to mail a notice or communication to a Securityholder nor any defect
in any notice so mailed shall affect its sufficiency with respect to other
Securityholders. If a notice or communication is mailed in the manner provided
above, it is duly given, whether or not the addressee receives it. If by reason
of the suspension of regular mail service or by reason of any other cause it
shall be impracticable to give such notice as provided above, then such
notification as shall be made with the approval of the Trustee shall constitute
a sufficient notification for every purpose hereunder.
SECTION 11.3. Communication by Holders with other Holders.
-------------------------------------------
Securityholders may communicate pursuant to TIA (S) 3l2(b) with other
Securityholders with respect to their rights under this Indenture or the
Securities. The Company, the Trustee, the Registrar and anyone else shall have
the protection of TIA (S) 312(c).
SECTION 11.4. Certificate and Opinion as to Conditions Precedent.
--------------------------------------------------
Upon any request or application by the Company to the Trustee to take or refrain
from taking any action under this Indenture, the Company shall furnish to the
Trustee:
(a) an Officers' Certificate in form and substance reasonably satisfactory
to the Trustee stating that, in the opinion of the signers, all conditions
precedent, if any, provided for in this Indenture relating to the proposed
action have been complied with; and
(b) an Opinion of Counsel in form and substance reasonably satisfactory to
the Trustee stating that, in the opinion of such counsel, all such conditions
precedent have been complied with,
except that in the case of any such application or request as to which the
furnishing of such documents is specifically required by any provision of this
Indenture relating to such particular application or request, no additional
certificate or opinion need be furnished.
SECTION 11.5. Statements Required in Certificate or Opinion. Each
---------------------------------------------
certificate or opinion with respect to compliance with a covenant or condition
provided for in this Indenture shall include:
(a) a statement that the individual making such certificate or opinion has
read such covenant or condition;
(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;
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(c) a statement that, in the opinion of such individual, he has made such
examination or investigation as is necessary to enable him to express an
informed opinion as to whether or not such covenant or condition has been
complied with; and
(d) a statement as to whether or not, in the opinion of such individual,
such covenant or condition has been complied with.
In giving such Opinion of Counsel, counsel may rely as to factual
matters on an Officers' Certificate or on certificates of public officials.
SECTION 11.6. When Securities Disregarded. In determining whether
---------------------------
the Holders of the required principal amount of Securities have concurred in any
direction, waiver or consent, Securities owned by the Company or by any Person
directly or indirectly controlling or controlled by or under direct or indirect
common control with the Company shall be disregarded and deemed not to be
Outstanding, except that, for the purpose of determining whether the Trustee
shall be protected in relying on any such direction, waiver or consent, only
Securities which the Trustee knows are so owned shall be so disregarded. Also,
subject to the foregoing, only Securities Outstanding at the time shall be
considered in any such determination.
SECTION 11.7. Rules by Trustee, Paying Agent and Registrar. The
--------------------------------------------
Trustee may make reasonable rules for action by, or a meeting of,
Securityholders. The Registrar and the Paying Agent may make reasonable rules
for their functions.
SECTION 11.8. Legal Holidays. In any case where any interest
--------------
payment date, Redemption Date, Stated Maturity or Maturity of any Security shall
not be a Business Day, then (notwithstanding any other provision of this
Indenture or of any Security) payment of principal, premium, if any, or
interest, if any, 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 such date;
provided that no interest shall accrue on the amount so payable for the period
- - --------
from and after such interest payment date, Redemption Date, Stated Maturity or
Maturity, as the case may be.
SECTION 11.9. GOVERNING LAW. THIS INDENTURE, THE SECURITIES AND
-------------
THE GUARANTEES SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS
OF THE STATE OF NEW YORK.
SECTION 11.10. No Recourse Against Others. An incorporator,
--------------------------
director, officer, employee, stockholder or controlling person, as such, of each
of the Company or any Guarantors shall not have any liability for any
obligations of the Company under the Securities, this Indenture or the
Guarantees or for any claim based on, in respect of or by reason of such
obligations or their creation. By accepting a Security, each Securityholder
shall waive and release all such liability. The waiver and release shall be
part of the consideration for the issue of the Securities.
SECTION 11.11. Successors. All agreements of the Company and the
----------
Guarantors in this Indenture and the Securities shall bind their respective
successors. All agreements of the Trustee in this Indenture shall bind its
successors.
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SECTION 11.12. Multiple Originals. The parties may sign any number
------------------
of copies of this Indenture. Each signed copy shall be an original, but all of
them together represent the same agreement. One signed copy is enough to prove
this Indenture.
SECTION 11.13. Variable Provisions. The Company initially appoints
-------------------
the Trustee as Paying Agent and Registrar and custodian with respect to any
Global Securities.
SECTION 11.14. Qualification of Indenture. The Company shall
--------------------------
qualify this Indenture under the TIA in accordance with the terms and conditions
of the Registration Rights Agreement and shall pay all reasonable costs and
expenses (including attorneys' fees and expenses for the Company, the Trustee
and the Holders) incurred in connection therewith, including, but not limited
to, costs and expenses of qualification of this Indenture and the Securities and
printing this Indenture and the Securities. The Trustee shall be entitled to
receive from the Company any such Officers' Certificates, Opinions of Counsel or
other documentation as it may reasonably request in connection with any such
qualification of this Indenture under the TIA.
SECTION 11.15. Table of Contents; Headings. The table of contents,
---------------------------
cross-reference sheet and headings of the Articles and Sections of this
Indenture have been inserted for convenience of reference only, are not intended
to be considered a part hereof and shall not modify or restrict any of the terms
or provisions hereof.
SECTION 11.16. Separability. In case any provision of this
------------
Indenture or the Securities or the Guarantees 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 11.17. Benefits of Indenture. Nothing in this Indenture or
---------------------
in the Securities or the Guarantees, expressed or implied, shall give to any
Person, other than the parties hereto and their successors hereunder and the
Holders, any benefit or any legal or equitable right, remedy or claim under this
Indenture.
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IN WITNESS WHEREOF, the parties hereto have caused this Indenture to
be duly executed, and their respective corporate seals to be hereunto affixed
and attested, all as of the day and year first above written.
FEDERAL-MOGUL CORPORATION
by: ______________________________
Name:
Title:
FEDERAL-MOGUL DUTCH HOLDINGS INC.
by: _______________________________
Name:
Title:
FEDERAL-MOGUL GLOBAL INC.
by: _______________________________
Name:
Title:
FEDERAL-MOGUL U.K. HOLDINGS INC.
by: _______________________________
Name:
Title:
F-M U.K. HOLDINGS LIMITED
by: _______________________________
Name:
Title:
70
CARTER AUTOMOTIVE COMPANY, INC.
by: ________________________________
Name:
Title:
FEDERAL MOGUL VENTURE CORPORATION
by: _______________________________
Name:
Title:
FEDERAL-MOGUL WORLD WIDE, INC.
by: _______________________________
Name:
Title:
FEDERAL-MOGUL GLOBAL PROPERTIES, INC.
by: _______________________________
Name:
Title:
FELT PRODUCTS MFG. CO.
by: _______________________________
Name:
Title:
FEL-PRO MANAGEMENT CO.
by: _______________________________
Name:
Title:
71
FEDERAL-MOGUL IGNITION COMPANY
by: _______________________________
Name:
Title:
FEDERAL-MOGUL PRODUCTS, INC.
by: _______________________________
Name:
Title:
FEDERAL-MOGUL AVIATION, INC.
by: _______________________________
Name:
Title:
72
THE BANK OF NEW YORK, as Trustee
by: _______________________________
Name:
Title:
73