CK WITCO CORPORATION
8 1/2% Senior Notes due 2005
INDENTURE
Dated as of March 1, 2000
CITIBANK, N.A.
as Trustee
CROSS-REFERENCE TABLE
TIA Section Indenture Section
310(a)(1) 6.10
(a)(2) 6.10
(a)(3) N.A.
(a)(4) N.A.
(a)(5) 6.8; 6.10
(b) 6.8; 6.10
(c) N.A.
311(a) 6.11
(b) 6.11
(c) N.A.
312(a) 2.5
(b) 10.3
(c) 10.3
313(a) 6.6
(b)(1) N.A.
(b)(2) 6.6
(c) 6.6
(d) 6.6
314(a) 3.2; 10.2
(b) N.A.
(c)(1) 10.4
(c)(2) 10.4
(c)(3) N.A.
(d) N.A.
(e) 10.5
(f) 3.9
315(a) 6.1
(b) 6.5; 10.2
(c) 6.1
(d) 6.1
(e) 5.11
316(a)(last sentence) 10.6
(a)(1)(A) 5.5
(a)(1)(B) 5.4
(a)(2) N.A.
(b) 5.7
317(a)(1) 5.8
(a)(2) 5.9
(b) 2.4
318(a) 10.1
N.A. means Not Applicable.
Note: This Cross-Reference Table shall not, for any
purpose, be deemed to be part of the Indenture.
TABLE OF CONTENTS
Page
ARTICLE I Definitions and Incorporation by Reference
SECTION 1.1. Definitions 1
SECTION 1.2. Other Definitions 14
SECTION 1.3. Incorporation by Reference of Trust Indenture
Act 15
SECTION 1.4. Rules of Construction 16
ARTICLE II The Securities
SECTION 2.1. Form, Dating and Terms 16
SECTION 2.2. Execution and Authentication 22
SECTION 2.3. Registrar and Paying Agent 24
SECTION 2.4. Paying Agent To Hold Money in Trust 24
SECTION 2.5. Securityholder Lists 25
SECTION 2.6. Transfer and Exchange 25
SECTION 2.7. Form of Certificate to be Delivered in Connection
with Transfers to Institutional Accredited Investors 30
SECTION 2.8. Form of Certificate to be Delivered in Connection
with Transfers Pursuant to Regulation S 32
SECTION 2.9. Mutilated, Destroyed, Lost or Stolen
Securities 33
SECTION 2.10. Temporary Securities 34
SECTION 2.11. Cancellation 34
SECTION 2.12. Payment of Interest; Defaulted Interest 34
SECTION 2.13. Computation of Interest 36
SECTION 2.14. CUSIP Numbers 36
ARTICLE III Covenants
SECTION 3.1. Payment of Securities 36
SECTION 3.2. Reports by the Company 37
SECTION 3.3. Limitation on Mortgages 37
SECTION 3.4. Limitation on Sale and Leaseback Transactions 42
SECTION 3.5. Exempted Indebtedness 43
SECTION 3.6. Limitation on Subsidiary Indebtedness 43
SECTION 3.7. Sales of Accounts Receivable 45
SECTION 3.8. Waiver of Certain Covenants 46
SECTION 3.9. Maintenance of Office or Agency 47
SECTION 3.10. Money for Security Payments to be Held
in Trust 47
SECTION 3.11. Corporate Existence 49
SECTION 3.12. Compliance Certificate 49
SECTION 3.13. Maintenance of Properties 50
SECTION 3.14. Payment of Taxes and Other Claims 50
SECTION 3.15. Statement by Officers as to Default 50
ARTICLE IV Consolidation, Merger, Conveyance, Transfer or
Lease
SECTION 4.1. Company May Consolidate, Etc., Only on Certain
Terms 50
SECTION 4.2. Successor Substituted 52
ARTICLE V Defaults and Remedies
SECTION 5.1. Events of Default 52
SECTION 5.2. Acceleration 54
SECTION 5.3. Other Remedies 55
SECTION 5.4. Waiver of Past Defaults 55
SECTION 5.5. Control by Majority 56
SECTION 5.6. Limitation on Suits 56
SECTION 5.7. Rights of Holders to Receive Payment 57
SECTION 5.8. Collection Suit by Trustee 57
SECTION 5.9. Trustee May File Proofs of Claim 57
SECTION 5.10. Priorities 58
SECTION 5.11. Undertaking for Costs 58
ARTICLE VI Trustee
SECTION 6.1. Duties of Trustee 59
SECTION 6.2. Rights of Trustee 60
SECTION 6.3. Individual Rights of Trustee 61
SECTION 6.4. Trustee's Disclaimer. 61
SECTION 6.5. Notice of Defaults 62
SECTION 6.6. Reports by Trustee to Holders 62
SECTION 6.7. Compensation and Indemnity 62
SECTION 6.8. Replacement of Trustee 63
SECTION 6.9. Successor Trustee by Merger 64
SECTION 6.10. Eligibility; Disqualification 65
SECTION 6.11. Preferential Collection of Claims
Against Company 65
SECTION 6.12. Trustee's Application for Instructions from the
Company 65
ARTICLE VII Discharge of Indenture; Defeasance; Covenant
Defeasance
SECTION 7.1. Discharge of Liability on Securities; Defeasance;
Covenant Defeasance 66
SECTION 7.2. Conditions to Defeasance or
Covenant Defeasance 67
SECTION 7.3. Application of Trust Money 70
SECTION 7.4. Repayment to Company 70
SECTION 7.5. Indemnity for U.S. Government Obligations 71
SECTION 7.6. Reinstatement 71
ARTICLE VIII Amendments
SECTION 8.1. Without Consent of Holders 71
SECTION 8.2. With Consent of Holders 72
SECTION 8.3. Compliance with Trust Indenture Act 73
SECTION 8.4. Revocation and Effect of Consents and Waivers 73
SECTION 8.5. Notation on or Exchange of Securities 74
SECTION 8.6. Trustee To Sign Amendments 74
ARTICLE IX Redemption of Securities
SECTION 9.1. Redemption 74
SECTION 9.2. Applicability of Article 74
SECTION 9.3. Election to Redeem; Notice to Trustee 74
SECTION 9.4. Selection by Trustee of Securities to be
Redeemed 75
SECTION 9.5. Notice of Redemption 75
SECTION 9.6. Deposit of Redemption Price 77
SECTION 9.7. Securities Payable on Redemption Date 77
SECTION 9.8. Securities Redeemed in Part 77
ARTICLE X Miscellaneous
SECTION 10.1. Trust Indenture Act Controls 78
SECTION 10.2. Notices 78
SECTION 10.3. Communication by Holders with other Holders 79
SECTION 10.4. Certificate and Opinion as to Conditions
Precedent 79
SECTION 10.5. Statements Required in Certificate or Opinion 79
SECTION 10.6. Rules by Trustee, Paying Agent and Registrar 79
SECTION 10.7. Legal Holidays 79
SECTION 10.8. Governing Law 80
SECTION 10.9. No Recourse Against Others 80
SECTION 10.10. Successors 80
SECTION 10.11. Multiple Originals 80
SECTION 10.12. Variable Provisions 80
SECTION 10.13. Qualification of Indenture 80
SECTION 10.14. Table of Contents; Headings 81
EXHIBIT A Form of the Initial Note
EXHIBIT B Form of the Exchange Note and Private Exchange
Note
INDENTURE dated as of March 1, 2000, between CK Witco
Corporation, a Delaware corporation (the "Company"), and
Citibank, N.A., a national banking association duly organized and
existing under the laws of the United States (the "Trustee").
Each party agrees as follows for the benefit of the
other parties and for the equal and ratable benefit of the
Holders of the Company's 8 1/2% Senior Notes due 2005 (the
"Initial Notes") and, if and when issued in exchange for Initial
Notes, as provided in the Registration Rights Agreement (as
hereinafter defined), the Company's 8 1/2% Senior Notes due 2005
(the "Exchange Notes"). Under certain circumstances, as
described in the Registration Rights Agreement, the Company may
issue private exchange notes in exchange for Initial Notes (the
"Private Exchange Notes"). The Initial Notes together with the
Exchange Notes and the Private Exchange Notes are hereinafter
referred to as the "Securities" or the "Notes".
ARTICLE I
Definitions and Incorporation by Reference
SECTION 1.1. Definitions.
"Accounts Receivable Subsidiary" means a Subsidiary of
the Company (i) which is formed solely for the purpose of, and
which engages in no activities other than activities in
connection with, financing accounts receivable and/or notes
receivable and related assets of the Company and/or its
Restricted Subsidiaries, (ii) which is designated by the Board of
Directors as an Accounts Receivables Subsidiary pursuant to a
resolution set forth in an Officers' Certificate and delivered to
the Trustee, (iii) that has total assets at the time of such
designation with a book value not exceeding $100,000 plus the
reasonable fees and expenses required to establish such Accounts
Receivable Subsidiary and any accounts receivable financing, (iv)
no portion of Indebtedness or any other obligation (contingent or
otherwise) of which (a) is at any time recourse to or obligates
the Company or any Restricted Subsidiary of the Company in any
way, other than pursuant to (I) representations, warranties,
covenants and indemnities entered into in the ordinary course of
business in connection with the sale of accounts receivable
and/or notes receivable to such Accounts Receivable Subsidiary or
(II) any guarantee of any such accounts receivable financing by a
Restricted Subsidiary that is permitted to be incurred pursuant
to the covenant described in Section 3.6(a), or (b) subjects any
property or asset of the Company or any Restricted Subsidiary of
the Company, directly or indirectly, contingently or otherwise,
to the satisfaction thereof, other than pursuant to (I)
representations, warranties, covenants and indemnities entered
into in the ordinary course of business in connection with sales
of accounts receivables and/or notes receivable or (II) any
guarantee of any such accounts receivable financing by a
Restricted Subsidiary that is permitted to be incurred pursuant
to Section 3.6(a), (v) with which neither the Company nor any
Restricted Subsidiary of the Company has any contract, agreement,
arrangement or understanding other than contracts, agreements,
arrangements or understandings entered into the ordinary course
of business in connection with sales of accounts receivable
and/or notes receivable in accordance with Section 3.7 and fees
payable in the ordinary course of business in connection with
servicing accounts receivable and/or notes receivable and (vi)
with respect to which neither the Company nor any Restricted
Subsidiary of the Company has any obligation (a) to subscribe for
additional shares of Capital Stock or other Equity Interests
therein or make any additional capital contribution or similar
payment or transfer thereto other than in connection with the
sale of accounts receivable and/or notes receivable to such
Accounts Receivable Subsidiary in accordance with Section 3.7 or
(b) to maintain or preserve solvency or any balance sheet item,
financial condition, level of income or results of operations
thereof.
"Acquired Indebtedness" means Subsidiary Indebtedness
(other than Permitted Subsidiary Indebtedness) of a Person:
(1) existing at the time such Person becomes a
Restricted Subsidiary, or
(2) assumed in connection with the acquisition of
assets by such Person,
in each case, other than Subsidiary Indebtedness incurred in
connection with, or in contemplation of, such Person becoming a
Restricted Subsidiary or such acquisition, as the case may be.
"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" means, as to any particular lease
relating to a sale and leaseback transaction of a Principal
Property under which any Person is at the time liable, at any
date as of which the amount thereof is to be determined, the
total net amount of rent (discounted from the respective due
dates thereof at the interest rate from time to time being used
by the Company to determine its liability in respect of
capitalized leases) required to be paid by such Person under such
lease during the remaining term thereof. The net amount of rent
required to be paid under any such lease for any such period
shall be the total amount of the rent payable by the lessee with
respect to such period, but may exclude amounts required to be
paid on account of maintenance and repairs, insurance, taxes,
assessments, utilities, operating and labor costs and similar
charges. In the case of any lease which is terminable by the
lessee upon the payment of a penalty, such net amount of rent
shall also include the amount of such penalty, but no rent shall
be considered as required to be paid under such lease subsequent
to the first date upon
which it may be so terminated.
"Board of Directors" means the Board of Directors of
the Company or any committee thereof duly authorized to act on
behalf of such Board of Directors with respect to the relevant
matter.
"Business Day" means a day other than a Saturday,
Sunday or other day on which commercial banking institutions are
authorized or required by law to close in New York City.
"Capital Lease Obligations" means an obligation that is
required to be classified and accounted for as a capital lease
for financial reporting purposes in accordance with generally
accepted accounting principles, and the amount of Indebtedness
represented by such obligation shall be the capitalized amount of
such obligation determined in accordance with generally accepted
accounting principles; and the stated maturity thereof shall be
the date of the last payment of rent or any other amount due
under such lease prior to the first date upon which such lease
may be terminated by the lessee without payment of a penalty.
"Capital Stock" of any Person means any and all shares,
interests, rights to purchase, warrants, options, participations
or other equivalents of or interests in (however designated)
equity of such Person, including any Preferred Stock, but
excluding any debt securities convertible into such equity.
"Cash Equivalents" means (i) United States dollars,
(ii) securities issued or directly and fully guaranteed or
insured by the United States government or any agency or
instrumentality thereof (provided that the full faith and credit
of the United States is pledged in support thereof) having
maturities of not more than six months from the date of
acquisition, (iii) certificates of deposit and eurodollar time
deposits with maturities of six months or less from the date of
acquisition, bankers' acceptances with maturities not exceeding
six months and overnight bank deposits, in each case with any
domestic commercial bank having capital and surplus in excess of
$500 million, (iv) repurchase obligations with a term of not more
than seven days for underlying securities of the types described
in clauses (ii) and (iii) above entered into with any financial
institution meeting the qualifications specified in clause (iii)
above, (v) commercial paper having the highest rating obtainable
from Moody's Investors Service, Inc. or Standard & Poors
Corporation and in each case maturing within six months after the
date of acquisition and (vi) money market funds at least 95% of
the assets of which constitute Cash Equivalents of the kinds
described in this definition.
"Code" means the Internal Revenue Code of 1986, as
amended.
"Company" means CK Witco Corporation until a successor
replaces it and, thereafter, means such successor.
"Consolidated Net Tangible Assets" means total
consolidated assets of the Company and its Subsidiaries, less the
following:
(1) current liabilities of the Company and its
Subsidiaries;
(2) all depreciation and valuation reserves and all
other reserves (except (a) reserves for contingencies which have
not been allocated to any particular purpose, and (b) deferred
credits, including deferred federal and foreign income taxes and
deferred investment tax credits) of the Company and its
Subsidiaries;
(3) the net book amount of all intangible assets of the
Company and its Subsidiaries, including the unamortized portions
of such items as goodwill, trademarks, trade names, patents and
debt discount and expense less debt premium; and
(4) appropriate adjustments on account of minority
interests of other Persons holding stock in Subsidiaries.
"Default" means any event or condition that is, or
after notice or passage of time or both would be, an Event of
Default.
"Disqualified Stock" means, with respect to any Person,
any Capital Stock which by its terms (or by the terms of any
security into which it is convertible or for which it is
exchangeable at the option of the holder) or upon the happening
of any event:
(1) matures or is mandatorily redeemable pursuant
to a sinking fund obligation or otherwise;
(2) is convertible or exchangeable at the option of
the holder for Indebtedness or Disqualified Stock; or
(3) is mandatorily redeemable or must be purchased
upon the occurrence of certain events or otherwise, in whole or
in part;
in each case on or prior to the Stated Maturity of the
Securities.
"Depositary" 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.
"Foreign Subsidiary" means any Subsidiary that is
formed under the laws of any jurisdiction outside of the
United States of America and its territories and possessions or
substantially all of the operating assets of which are located,
and substantially all of the business of which is carried on
outside the United States of America and its territories and
possessions, and includes any Subsidiary formed under the laws of
any State of the United States of America which is primarily
engaged in financing the operations of the Company or its
Subsidiaries, or both, outside the United States of America and
its territories and possessions.
"Guarantee" means the unconditional and unsubordinated
guarantee by the Guarantor of the due and punctual payment of
principal of and interest on the Securities when and as the same
shall become due and payable, whether at the Stated Maturity, by
acceleration, call for redemption or otherwise in accordance with
the terms of the Securities and this Indenture.
"Guarantor" means any Restricted Subsidiary, other than
Foreign Subsidiaries, that after the date of this Indenture
executes a guarantee of the Securities contemplated by Section
3.6 until a successor replaces such party pursuant to the
applicable provisions of this Indenture, or until otherwise
released in accordance with the terms of this Indenture.
"GAAP" means generally accepted accounting principles
in the United States of America as in effect on the Issue Date,
including those set forth in the opinions and pronouncements of
the Accounting Principles Board of the American Institute of
Certified Public Accountants and statements and pronouncements of
the Financial Accounting Standards Board or in such other
statements by such other entity as approved by a significant
segment of the accounting profession. All ratios and
computations based on GAAP contained in this Indenture shall be
computed in conformity with GAAP.
"Hedging Obligations" means, with respect to any
Person, the obligations of such Person under (i) interest rate
swap agreements, interest rate cap agreements and interest rate
collar agreements or other agreements or arrangements designed to
protect such Person against fluctuations in interest rates and
(ii) foreign exchange contracts, currency swap agreements or
other similar agreements or arrangements designed to protect such
Person against fluctuations in currency exchange rates, in each
case provided that such obligations are entered into solely to
protect such Person against fluctuations in interest rates or
currency exchange rates and not for purposes of speculation.
"Holder" or "Securityholder" means the Person in whose
name a Security is registered in the Note Register.
"Indebtedness" means (i) all items of indebtedness or
liability (except capital and surplus) which in accordance with
GAAP would be included in determining total liabilities as shown
on the liability side of a balance sheet as at the date as of
which indebtedness is to be determined, (ii) indebtedness secured
by any Mortgage existing on property owned subject to such
Mortgage, whether or not the indebtedness secured thereby shall
have been assumed, provided that if such indebtedness shall not
have been assumed the amount of such obligation shall be deemed
to be the lesser of the value of such property or the amount of
the indebtedness so secured and (iii) guarantees, endorsements
(other than for purposes of collection) and other contingent
obligations in respect of, or to purchase or otherwise acquire,
indebtedness of others, unless the amount thereof is included in
indebtedness under the preceding clauses (i) or (ii).
"Indenture" means this Indenture as amended or
supplemented from time to time.
"Institutional Accredited Investor" means an
institutional "accredited investor" within the meaning of Rule
501(a)(1), (2), (3) or (7) under the Securities Act.
"Issue Date" means the date on which the Initial Notes
are originally issued.
"Maturity", when used with respect to any Security,
means the date on which the principal of such Security or an
installment of principal becomes due and payable as therein or
herein provided, whether at the Stated Maturity or by declaration
of acceleration, call for redemption or otherwise.
"Mortgage" means and includes any mortgage, pledge,
lien, security interest, conditional sale or other title
retention agreement or other similar encumbrance.
"Obligation" means any principal, interest, penalties,
fees, indemnifications, reimbursements, damages and other
liabilities and obligations payable under the documentation
governing any Indebtedness.
"Officer" means any of the Chairman of the Board, the
Chief Executive Officer, the President, the Chief Operating
Officer, the Chief Financial Officer and Principal Accounting
Officer any Vice President, the Treasurer, the Secretary or the
Controller of the Company.
"Officers' Certificate" means a certificate signed by
two or more Officers.
"Opinion of Counsel" means a written opinion from legal
counsel. The 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:
(1) Securities theretofore cancelled by the Trustee or
delivered to the Trustee for cancellation;
(2) Securities for whose payment or redemption money 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 by the Company (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 provision therefor satisfactory to the Trustee has
been made;
(3) Securities as to which Defeasance has been effected
pursuant to Section 7.1(c);
(4) 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, (A) 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 relying upon any such request,
demand, authorization, direction, notice, consent or waiver, only
Securities which a Trust Officer of the Trustee actually knows to
be so owned shall be so disregarded. Securities so owned which
have been pledged in good faith may be regarded as Outstanding if
the pledgee establishes to the 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.
"Permitted Subsidiary Indebtedness" means (i) any
Indebtedness existing on March 7, 2000; (ii) any Indebtedness
owed to the Company or a Restricted Subsidiary; (iii) any
Indebtedness secured by a Mortgage not prohibited by Section 3.3;
(iv) any Indebtedness incurred by any Restricted Subsidiary to
extend, refinance, renew or replace an equivalent or lesser
amount of Indebtedness of such Restricted Subsidiary referred to
in clause (i) above, including any premium, prepayment penalties
or fees or expenses incurred in connection therewith; (v)
Indebtedness incurred by an Accounts Receivables Subsidiary in
connection with a transaction pursuant to and in compliance with
Section 3.7 hereof; (vi) the guarantee by any Restricted
Subsidiaries of Indebtedness of the Company or a Restricted
Subsidiary that was permitted to be incurred by another provision
of this Indenture; (vii) the incurrence by the Restricted
Subsidiaries of Hedging Obligations incurred with respect to any
Indebtedness or Obligation that is permitted by the terms of this
Indenture to be outstanding; (viii) Indebtedness incurred by
Restricted Subsidiaries constituting reimbursement obligations
with respect to letters of credit issued in the ordinary course
of business, including letters of credit in respect of workers'
compensation claims or self-insurance, surety bonds or other
Indebtedness with respect to reimbursement type obligations
regarding workers' compensation claims; provided, however, that
upon the drawing of such letters of credit or the incurrence of
such Indebtedness, such obligations are reimbursed within 30 days
following such drawing or incurrence; (ix) Indebtedness arising
from agreements of a Restricted Subsidiary providing for
indemnification, adjustment of purchase price or similar
obligations, in each case, incurred or assumed in connection with
the disposition of any business, asset or Restricted Subsidiary,
other than guarantees of Indebtedness incurred by any Person
acquiring all or any portion of such business, assets or
Restricted Subsidiary for the purpose of financing such
acquisition; provided, however, that the maximum aggregate
liability of all such Indebtedness shall at no time exceed 50% of
the gross proceeds actually received in connection with such
disposition; (x) the incurrence of Indebtedness of Restricted
Subsidiaries (including letters of credit) in respect of
performance bonds, bankers' acceptances, letters of credit,
performance, bid, surety or appeal bonds or similar bonds and
completion guarantees provided by Restricted Subsidiaries in the
ordinary course of their business and consistent with past
practices and which do not secure other Indebtedness; (xi)
Indebtedness that constitutes an accrued expense or trade
payable; (xii) Indebtedness of a Restricted Subsidiary, to the
extent the net proceeds thereof are promptly deposited to defease
the Securities as described under Section 7.1; (xiii)
Indebtedness that constitutes a liability for federal, state,
local or other taxes and (xiv) Indebtedness that constitutes an
obligation to pay salary or benefits to officers, employees and
directors in the ordinary course of business.
"Person" means any individual, corporation,
partnership, limited liability company, joint venture,
association, joint-stock company, trust, unincorporated
organization or government or any agency or political subdivision
thereof.
"Predecessor Security" of any particular Security means
every previous Security evidencing all or a portion of the same
debt as that evidenced by such particular Security; and, for the
purposes of this definition, any Security authenticated and
delivered under Section 2.9 in exchange for or in lieu of a
mutilated, destroyed, lost or stolen Security shall be deemed to
evidence the same debt as the mutilated, destroyed, lost or
stolen Security.
"Preferred Stock", as applied to the Capital Stock of
any Person, means Capital Stock of any class or classes (however
designated) which is preferred as to the payment of dividends or
distributions, or as to the distribution of assets upon any
voluntary or involuntary liquidation or dissolution of such
Person, over shares of Capital Stock of any other class of such
Person.
"Principal Property" means any manufacturing facility
located within the United States of America owned or leased by
the Company or any Subsidiary except (a) any such manufacturing
facility which the Board of Directors by resolution declares is
not of material importance to any business segment of the Company
or its Subsidiaries and (b) any such manufacturing facility that
has total assets of less than $25 million.
"QIB" means any "qualified institutional buyer" (as
defined in Rule 144A under the Securities Act).
"Redemption Date" means the date fixed for the
redemption of any Security by or pursuant to this Indenture.
"Redemption Price" means the price at which any
Security is to be redeemed pursuant to this Indenture.
"Registration Rights Agreement" means the registration
rights agreement dated March 7, 2000, among the Company, Merrill
Lynch, Pierce, Fenner & Smith Incorporated, ABN AMRO
Incorporated, Banc of America Securities LLC, Chase Securities
Inc., Deutsche Bank Securities Inc., Goldman Sachs & Co. and
Salomon Smith Barney Inc.
"Restricted Period" means the 40 consecutive days
beginning on and including the later of (A) the day on which the
Initial Notes are offered to persons other than distributors (as
defined in Regulation S under the Securities Act) and (B) the
Issue Date.
"Restricted Securities Legend" has the meaning assigned
thereto in clause (A) of Section 2.1(c).
"Restricted Subsidiary" means any Subsidiary of the
Company that is not an Unrestricted Subsidiary.
"SEC" means the Securities and Exchange Commission.
"Securities" or "Notes" means the Securities issued
under this Indenture.
"Securities Act" means the Securities Act of 1933, as
amended.
"Securities Custodian" means the custodian with respect
to the Global Securities (as appointed by the Depositary), or any
successor Person thereto and shall initially be the Trustee.
"Stated Maturity", when used with respect to any
Security or any installment of principal thereof or interest
thereon, means the date specified in such Security as the fixed
date on which the principal of such Security or such installment
of principal or interest is due and payable.
"Subsidiary" means a corporation or other business
entity of which more than 50% of the outstanding voting share
capital or other voting ownership interests are owned, directly
or indirectly, by the Company or by one or more other
Subsidiaries, or by the Company and one or more other
Subsidiaries.
"Subsidiary Indebtedness" means, with respect to any
Restricted Subsidiary on any date of determination (without
duplication):
(1) the principal in respect of (A) Indebtedness of
such Restricted Subsidiary for money borrowed and (B)
Indebtedness evidenced by notes, debentures, bonds or other
similar instruments for the payment of which such Restricted
Subsidiary is responsible or liable, including, in each case, any
premium on such Indebtedness to the extent such premium has
become due and payable;
(2) all Capital Lease Obligations of such
Restricted Subsidiary and all Attributable Debt in respect of
sale and leaseback transactions entered into by such Restricted
Subsidiary;
(3) all obligations of such Restricted Subsidiary
issued or assumed as the deferred purchase price of property, all
conditional sale obligations of such Restricted Subsidiary and
all obligations of such Restricted Subsidiary under any title
retention agreement (but excluding trade accounts payable arising
in the ordinary course of business);
(4) all obligations of such Restricted Subsidiary
for the reimbursement of any obligor, other than the Company or a
Restricted Subsidiary, on any letter of credit, banker's
acceptance or similar credit transaction (other than obligations
with respect to letters of credit securing obligations (other
than obligations described in clauses (1) through (3) above)
entered into in the ordinary course of business of the Company
and its Restricted Subsidiaries as a whole to the extent such
letters of credit are not drawn upon or, if and to the extent
drawn upon, such drawing is reimbursed no later than the tenth
Business Day following payment on the letter of credit);
(5) the amount of all obligations of such
Restricted Subsidiary with respect to the redemption, repayment
or other repurchase of any Disqualified Stock or, with respect to
any Restricted Subsidiary thereof, the liquidation preference
with respect to any Preferred Stock (but excluding, in each case,
any accrued dividends);
(6) all obligations of the type referred to in
clauses (1) through (5) of other Persons (other than Restricted
Subsidiaries) and all dividends of other Persons for the payment
of which, in either case, such Person is responsible or liable,
directly or indirectly, as obligor, guarantor or otherwise,
including by means of any guarantee; and
(7) all obligations of the type referred to in
clauses (1) through (6) of other Persons (other than the Company
and its Restricted Subsidiaries) secured by any Mortgage on any
property or asset of such Restricted Subsidiary (whether or not
such obligation is assumed by such Person), the amount of such
obligation being deemed to be the lesser of the value of such
property or assets or the amount of the obligation so secured.
The amount of Subsidiary Indebtedness of any Restricted
Subsidiary at any date shall be the outstanding balance at such
date of all unconditional obligations as described above and the
maximum liability, upon the occurrence of the contingency giving
rise to the obligation, of any contingent obligations at such
date.
"TIA" or "Trust Indenture Act" means the Trust
Indenture Act of 1939 (15 U.S.C. ss.ss. 77aaa-77bbbb), as
amended, as in effect on the date hereof (except as provided in
Section 8.3) until such time as this Indenture is qualified under
the TIA, and thereafter, as in effect on the date on which this
Indenture is qualified under the TIA (except as provided in
Section 8.3).
"Trustee" means the party named as such in this
Indenture until a successor replaces it in accordance with the
applicable provisions of this Indenture and, thereafter, means
such successor.
"Trust Officer" any officer within the Global Agency &
Trust Services department of the Trustee, including any vice
president, assistant vice president, senior trust officer, trust
officer or any other officer of the Trustee who customarily
performs functions similar to those performed by the Persons who
at the time shall be such officers, respectively, or to whom any
corporate trust matter is referred because of such person's
knowledge of and familiarity with the particular subject and who
shall have direct responsibility for the administration of this
Indenture.
"Uniform Commercial Code" means the New York Uniform
Commercial Code as in effect from time to time.
"Unrestricted Subsidiary" means:
(1) any Subsidiary of the Company that at the time
of determination shall be designated an Unrestricted Subsidiary
by the Board of Directors in the manner provided below; and
(2) any Subsidiary of an Unrestricted Subsidiary.
The Board of Directors may designate any Subsidiary of
the Company (including any newly acquired or newly formed
Subsidiary) to be an Unrestricted Subsidiary unless such
Subsidiary or any of its Subsidiaries owns any Capital Stock or
Indebtedness of, or holds any Mortgage on any property of, the
Company or any other Subsidiary of the Company that is not a
Subsidiary of the Subsidiary to be so designated; provided,
however, that the Subsidiary to be so designated has total assets
of $1,000 or less.
The Board of Directors may designate any Unrestricted
Subsidiary to be a Restricted Subsidiary; provided, however, that
no Default shall result therefrom or shall have occurred and be
continuing. Any such designation by the Board of Directors shall
be evidenced to the Trustee by promptly filing with the Trustee a
copy of the resolution of the Board of Directors giving effect to
such designation and an Officers' Certificate certifying that
such designation complied with the foregoing provisions.
SECTION 1.2. Other Definitions.
Term Defined in Section
"Agent Members" 2.1(d)
"Authenticating Agent" 2.2
"Company Order" 2.2
"Corporate Trust Office" 3.7
"Covenant Defeasance" 7.1(d)
"Defaulted Interest" 2.12
"Defeasance" 7.1(c)
"Definitive Securities" 2.1(e)
"Event of Default" 5.1
"Exchange Global Note" 2.1(a)
"Exchange Notes" Preamble
"Financier" 3.7
"Foreign Restricted Subsidiary" 3.6(a)
"Foreign Stock Pledge" 3.6(a)
"Global Securities" 2.1(a)
"IAI Global Note" 2.1(a)
"IAI Notes" 2.1(a)
"Initial Notes" Preamble
"legal defeasance option" 7.1(b)
"Note Register" 2.3
"Promissory Note" 3.7
"Private Exchange Notes" Preamble
"Purchase Agreement 2.1(a)
"Registrar" 2.3
"Regulation S" 2.1(a)
"Regulation S Note" 2.1(a)
"Regulation S Global Note" 2.1(a)
"Resale Restriction Termination Date" 2.6
"Rule 144A" 2.1(a)
"Rule 144A Note" 2.1(a)
"Rule 144A Global Note" 2.1(a)
"Special Interest Payment Date" 2.12(a)
"Special Record Date" 2.12(a)
"U.S. Governmental Obligations" 7.2
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:
"Commission" means the SEC.
"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.
"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 by the TIA by reference to another
statute or defined by SEC rule have the meanings assigned to them
by such definitions.
SECTION 1.4. Rules of Construction. Unless the
context otherwise requires:
(1) a term has the meaning assigned to it;
(2) an accounting term not otherwise defined has the
meaning assigned to it in accordance with GAAP;
(3) "or" is not exclusive;
(4) "including" means including without limitation;
(5) words in the singular include the plural and words
in the plural include the singular; and
(6) the principal amount of any noninterest bearing or
other discount security at any date shall be the principal amount
thereof that would be shown on a balance sheet of the issuer
dated such date prepared in accordance with GAAP.
ARTICLE II
The Securities
SECTION 2.1. Form, Dating and Terms. (a) The Initial
Notes are being offered and sold by the Company pursuant to a
Purchase Agreement, dated March 2, 2000, among the Company and
Merrill Lynch, Pierce, Fenner & Smith Incorporated, ABN AMRO
Incorporated, Banc of America Securities LLC, Chase Securities
Inc., Deutsche Bank Securities Inc., Goldman Sachs and Co., and
Salomon Smith Barney Inc. (the "Purchase Agreement").
Initial Notes offered and sold to QIBs pursuant to Rule
144A under the Securities Act ("Rule 144A") in the United States
of America (the "Rule 144A Note") will be issued on the Issue
Date in the form of a single, permanent global Security in
definitive, fully registered book-entry form substantially in the
form of Exhibit A, which is hereby incorporated by reference and
expressly made a part of this Indenture (the "Rule 144A Global
Note"), registered in the name of a nominee of the Depositary,
deposited on behalf of the purchasers of the Securities
represented thereby with the Trustee, as custodian for the
Depositary, duly executed by the Company and authenticated by the
Trustee as hereinafter provided. The Rule 144A Global Note may
be represented by more than one certificate, if so required by
the Depositary's rules regarding the maximum principal amount to
be represented by a single certificate. The aggregate principal
amount of the Rule 144A Global Note may from time to time be
increased or decreased by adjustments made on the records of the
Trustee, as custodian for the Depositary or its nominee, as
hereinafter provided.
Initial Notes offered and sold outside the United
States of America (the "Regulation S Note") in reliance on
Regulation S under the Securities Act ("Regulation S") shall be
issued in the form of a single, permanent global Security in
definitive, fully registered book-entry form substantially in the
form of Exhibit A (the "Regulation S Global Note") registered in
the name of Cede & Co., as nominee of the Depositary, deposited
on behalf of the purchasers of the Securities represented thereby
with the Trustee, as custodian for the Depositary, for credit to
the respective accounts of the purchasers (or to such other
accounts as they may direct) at Morgan Guaranty Trust Company of
New York, Brussels office, as operator of the Euroclear System,
or Clearstream Banking, societe anonyme, duly executed by the
Company and authenticated by the Trustee as hereinafter provided.
The Regulation S Global Note may be represented by more than one
certificate, if so required by the Depositary's rules regarding
the maximum principal amount to be represented by a single
certificate. The aggregate principal amount of the Regulation S
Global Note may from time to time be increased or decreased by
adjustments made on the records of the Trustee, as custodian for
the Depositary or its nominee, as hereinafter provided.
Initial Notes resold to Institutional Accredited
Investors in the United States of America (the "IAI Note") will
be issued in the form of a single, permanent global Security in
definitive, fully registered book-entry form substantially in the
form of Exhibit A (the "IAI Global Note") registered in the name
of a nominee of the Depositary deposited on behalf of the
purchasers of the Securities represented thereby with the
Trustee, as custodian for the Depositary, duly executed by the
Company and authenticated by the Trustee as hereinafter provided.
The IAI Global Note may be represented by more than one
certificate, if so required by the Depositary's rules regarding
the maximum principal amount to be represented by a single
certificate. The aggregate principal amount of the IAI Global
Note may from time to time be increased or decreased by
adjustments made on the records of the Trustee, as custodian for
the Depositary or its nominee, as hereinafter provided.
The Exchange Notes and Private Exchange Notes, if any,
exchanged for interests in the Rule 144A Note, Regulation S Note
and IAI Note will each be issued in the form of a permanent
global Note substantially in the form set forth in Exhibit B
hereto, which is hereby incorporated by reference and expressly
made a part of this Indenture, deposited with the Trustee as
hereinafter provided, with the applicable legend set forth in
Section 2.1(c) hereof (the "Exchange Global Note" and the
"Private Exchange Global Note", respectively). The Exchange
Global Note and the Private Exchange Global Note, as the case may
be, may be represented by more than one certificate, if so
required by the Depositary's rules regarding the maximum
principal amount to be represented by a single certificate.
The Rule 144A Global Note, the Regulation S Global
Note, the IAI Global Note, the Exchange Global Note and the
Private Exchange Global Note, if any, are sometimes collectively
herein referred to as the "Global Securities."
The principal of (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 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.
The Securities 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. 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 shall be issuable
only in fully registered form, without coupons, and only in
denominations of $1,000 and any integral multiple thereof.
(c) Restrictive Legends. Unless and until (i) an
Initial Note or Private Exchange Note is sold under an effective
registration statement or (ii) an Initial Note is exchanged for
an Exchange Note in connection with an effective registration
statement, in each case pursuant to the Registration Rights
Agreement, (A) such Initial Note and Private Exchange Note, as
the case may be, shall bear the following legend (the "Restricted
Securities Legend") on the face thereof:
THE SECURITIES EVIDENCED HEREBY HAVE 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 (I) EXCEPT IN COMPLIANCE WITH
THE TERMS OF THE INDENTURE AND (II) IN THE ABSENCE OF SUCH
REGISTRATION OR UNLESS THE TRANSACTION IS EXEMPT FROM, OR NOT
SUBJECT TO, THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT.
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 NOT A
U.S. PERSON AND IS ACQUIRING THIS SECURITY IN AN "OFFSHORE
TRANSACTION" PURSUANT TO RULE 904 OF REGULATION S, (2) AGREES
THAT IT WILL NOT PRIOR TO (X) THE DATE WHICH IS TWO YEARS (OR
SUCH SHORTER PERIOD OF TIME AS PERMITTED BY RULE 144(k) UNDER THE
SECURITIES ACT, OR ANY SUCCESSOR PROVISION THEREUNDER) 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 (THE "RESALE RESTRICTION
TERMINATION DATE"), OFFER, SELL OR OTHERWISE TRANSFER THIS
SECURITY EXCEPT (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, 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 WITHIN THE
MEANING OF REGULATION S UNDER THE SECURITIES ACT, (E) TO AN
INSTITUTIONAL "ACCREDITED INVESTOR" WITHIN THE MEANING OF
RULE 501(A)(1), (2), (3) OR (7) UNDER THE SECURITIES ACT THAT IS
PURCHASING FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF SUCH AN
INSTITUTIONAL "ACCREDITED INVESTOR", IN EITHER CASE IN A MINIMUM
PRINCIPAL AMOUNT OF SECURITIES OF $250,000 OR (F) PURSUANT TO
ANOTHER AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF
THE SECURITIES ACT 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; PROVIDED THAT THE
COMPANY, THE TRUSTEE, THE TRANSFER AGENT AND THE REGISTRAR SHALL
HAVE THE RIGHT PRIOR TO ANY SUCH OFFER, SALE OR TRANSFER (I)
PURSUANT TO CLAUSE (C), (D) OR (E) TO REQUIRE THE DELIVERY OF AN
OPINION OF COUNSEL, CERTIFICATION AND/OR OTHER INFORMATION
SATISFACTORY TO EACH OF THEM, AND (II) IN EACH OF THE FOREGOING
CASES, TO REQUIRE THAT A CERTIFICATION OF TRANSFER IN THE FORM
APPEARING ON THE OTHER SIDE OF THIS SECURITY IS COMPLETED AND
DELIVERED BY THE TRANSFEROR TO THE TRUSTEE. THIS LEGEND WILL BE
REMOVED UPON THE REQUEST OF THE HOLDER AFTER THE RESALE
RESTRICTION TERMINATION DATE. AS USED HEREIN, THE TERMS
"OFFSHORE TRANSACTION," "UNITED STATES" AND "U.S. PERSON" HAVE
THE MEANING GIVEN TO THEM BY REGULATION S UNDER THE SECURITIES
ACT.
(B) All Global Securities 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"), 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."
(d) Book-Entry Provisions. (i) This Section 2.1(d)
shall apply only to Global Securities deposited with the Trustee,
as custodian for the Depositary.
(ii) Each Global Security initially shall (x) be
registered in the name of the Depositary for such Global Security
or the nominee of such Depositary, (y) be delivered to the
Trustee as custodian for such Depositary and (z) bear legends as
set forth in Section 2.1(c).
(iii) Members of, or participants in, the Depositary
("Agent Members") shall have no rights under this Indenture with
respect to any Global Security held on their behalf by the
Depositary or by the Trustee as the custodian of the Depositary
or under such Global Security, and the Depositary 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 the
Depositary or impair, as between the Depositary and its Agent
Members, the operation of customary practices of the Depositary
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 pursuant to clause
(e) of this Section to beneficial owners who are required to hold
Definitive Securities (as defined below), the Security 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 tenor and amount.
(v) In connection with the transfer of an entire
Global Security to beneficial owners pursuant to clause (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 the Depositary in exchange
for its beneficial interest in such Global Security, an equal
aggregate principal amount of Definitive Securities of authorized
denominations.
(e) Definitive Securities. Except as provided below,
owners of beneficial interests in Global Securities will not be
entitled to receive certificated Securities ("Definitive
Securities"). If required to do so pursuant to any applicable
law or regulation, beneficial owners may obtain Definitive
Securities in exchange for their beneficial interests in a Global
Security upon written request in accordance with the Depositary's
and the Registrar's procedures. In addition, Definitive
Securities shall be transferred to all beneficial owners in
exchange for their beneficial interests in a Global Security if
(i) the Depositary notifies the Company that it is unwilling or
unable to continue as Depositary for such Global Security or the
Depositary ceases to be a "Clearing Agency" registered under the
Exchange Act, at a time when the Depositary 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 40
days of such notice or (ii) an Event of Default has occurred and
is continuing and the Registrar has received a request from the
Depositary.
(f) Any Definitive Security delivered in exchange for
an interest in a Global Security pursuant to Section 2.1(d)(iv)
and (v) shall, except as otherwise provided by paragraph (d) of
Section 2.6, bear the applicable legend regarding transfer
restrictions applicable to the Definitive Security set forth in
Section 2.1(c) and be subject to the applicable certification
requirements set forth in this Indenture.
(g) The registered holder of a Global Security may
grant proxies and otherwise authorize any person, including Agent
Members and persons that may hold interests through Agent
Members, to take any action which a Holder is entitled to take
under this Indenture or the Securities.
SECTION 2.2. Execution and Authentication. Two
Officers 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.
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) Initial Notes for original
issue in an aggregate principal amount of $600 million and (2)
Exchange Notes and Private Exchange Notes, if any, for issue only
in an Exchange Offer pursuant to the Registration Rights
Agreement, and only in exchange for Initial Notes of an equal
principal amount, in each case upon a written order of the
Company signed by two Officers or by an Officer and either an
Assistant Treasurer or an Assistant Secretary of the Company (the
"Company Order"). Such Company Order shall specify the amount of
the Securities to be authenticated, the date on which the
original issue of Securities is to be authenticated and whether
the Securities are to be Initial Notes, Exchange Notes or Private
Exchange Notes. The aggregate principal amount of Securities
Outstanding at any time may not exceed $600 million, except as
provided in Section 2.9.
The Trustee may appoint an agent (the "Authenticating
Agent") reasonably acceptable to the Company to authenticate the
Securities. Unless limited by the terms of such appointment, any
such Authenticating Agent may authenticate Securities whenever
the Trustee may do so. Each reference in this Indenture to
authentication by the Trustee includes authentication by such
agent.
In case the Company, pursuant to Article IV, shall be
consolidated or merged with or into any other Person or shall
convey, transfer, lease or otherwise dispose of its properties
and assets substantially as an entirety to any Person, and the
successor Person resulting from such consolidation, or surviving
such merger, or into which the Company shall have been merged, or
the Person which shall have received a conveyance, transfer,
lease or other disposition as aforesaid, shall have executed an
indenture supplemental hereto with the Trustee pursuant to
Article IV, any of the Securities authenticated or delivered
prior to such consolidation, merger, conveyance, transfer, lease
or other disposition may, from time to time, at the request of
the successor Person, be exchanged for other Securities executed
in the name of the successor Person with such changes in
phraseology and form as may be appropriate, but otherwise in
substance of like tenor as the Securities surrendered for such
exchange and of like principal amount; and the Trustee, upon
Company Order of the successor Person, shall authenticate and
deliver Securities as specified in such order for the purpose of
such exchange. If Securities shall at any time be authenticated
and delivered in any new name of a successor Person pursuant to
this Section 2.2 in exchange or substitution for or upon
registration of transfer of any Securities, such successor
Person, at the option of the Holders but without expense to them,
shall provide for the exchange of all Securities at the time
Outstanding for Securities authenticated and delivered in such
new name.
SECTION 2.3. Registrar and Paying Agent. The Company
shall maintain an office or agency where Securities may be
presented for registration of transfer or for exchange (the
"Registrar") and an office or agency where Securities may be
presented for payment (the "Paying Agent"). 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 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 in writing 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 6.7. The
Company or any of its domestically incorporated Subsidiaries may
act as Paying Agent, Registrar, co-registrar or transfer agent.
The Company initially appoints the Trustee as Registrar
and Paying Agent for the Securities.
SECTION 2.4. Paying Agent To Hold Money in Trust. At
or prior to 10:00 a.m (New York City time) on the date on which
any principal of, premium, if any, or interest on any Security is
due and payable, the Company shall deposit with the Paying Agent
a sum sufficient to pay such principal, premium, if any, 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 the Securityholders
or the Trustee all money held by such Paying Agent for the
payment of principal of or interest on the Securities and shall
notify the Trustee of any default by the Company in making any
such payment. If the Company or a Subsidiary 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 or a
Subsidiary) 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.
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. If the Trustee is not the Registrar, the
Company shall furnish to the Trustee, in writing at least five
Business Days before each interest payment date and at such other
times as the Trustee may request in writing, a list in such form
and as of such date as the Trustee may reasonably require of the
names and addresses of Securityholders.
SECTION 2.6. Transfer and Exchange. (a) The transfer
and exchange of Global Securities or beneficial interests therein
shall be effected through the Depositary, in accordance with this
Indenture (including applicable restrictions on transfer set
forth herein, if any) and the procedures of the Depositary
therefor.
A transferor of a beneficial interest in a Global
Security shall deliver a written order given in accordance with
the Depositary's procedures containing information regarding the
participant account of the Depositary to be credited with a
beneficial interest in the Global Security and such account shall
be credited in accordance with such order with a beneficial
interest in the Global Security and the account of the Person
making the transfer shall be debited by an amount equal to the
beneficial interest in the Global Security being transferred.
If the proposed transfer is a transfer of a beneficial
interest in one Global Security to a beneficial interest in
another Global Security, the Registrar shall reflect on its books
and records the date and an increase in the principal amount of
the Global Security to which such interest is being transferred
in an amount equal to the principal amount of the interest to be
so transferred, and the Registrar shall reflect on its books and
records the date and a corresponding decrease in the principal
amount of Global Security from which such interest is being
transferred.
(b) The following provisions shall apply with respect
to any proposed transfer of a Rule 144A Note or an IAI Note 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"):
(i) a transfer of a Rule 144A Note or an IAI Note or a
beneficial interest therein to a QIB shall be made upon the
representation of the transferee that it is purchasing the
Security 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 QIB, and is aware that the sale to it is being made
in reliance on Rule 144A and acknowledges that it has received
such information regarding the Company as it has requested
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 or an IAI Note or a
beneficial interest therein to an Institutional Accredited
Investor shall be made upon receipt by the Trustee or its agent
of a certificate substantially in the form set forth in
Section 2.7 hereof from the proposed transferee and, if requested
by the Company, the delivery of an opinion of counsel,
certifications and/or other information satisfactory to each of
them; and
(iii) a transfer of a Rule 144A Note or an IAI Note 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 2.7 hereof from
the proposed transferee and, if requested by the Company, the
delivery of an opinion of counsel, certification and/or other
information satisfactory to each of them.
(c) The following provisions shall apply with respect
to any proposed transfer of a Regulation S Note prior to the
expiration of the Restricted Period:
(i) a transfer of a Regulation S Note or a beneficial
interest therein to a QIB shall be made upon the representation
of the transferee that it is purchasing the Security 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 QIB,
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 or a beneficial
interest therein to an Institutional Accredited Investor shall be
made upon receipt by the Trustee or its agent of a certificate
substantially in the form set forth in Section 2.7 hereof from
the proposed transferee and, if requested by the Company, 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 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, 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 a Regulation S Note may be transferred without
requiring certification set forth in Section 2.8 or any
additional certification.
(d) Restricted Securities Legend. Upon the transfer,
exchange or replacement of Securities not bearing a Restricted
Securities Legend, the Registrar shall deliver Securities that do
not bear a Restricted Securities Legend. Upon the transfer,
exchange or replacement of Securities bearing the Restricted
Securities Legend, the Registrar shall deliver only Securities
that bear such 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.
(e) The Security 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 Security
Registrar.
(f) 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 or similar
governmental charges payable upon exchange or transfer pursuant
to Section 8.5).
(iii) The Registrar or co-registrar shall not be
required to register the transfer of or exchange of any Security
for a period beginning (1) 15 Business Days before the mailing of
a notice of an offer to repurchase Securities and ending at the
close of business on the day of such mailing or (2) 15 Business
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) All Securities 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 surrendered upon such transfer
or exchange.
(g) No Obligation of the Trustee. (i) The Trustee
shall have no responsibility or obligation to any beneficial
owner of a Global Security, a member of, or a participant in, the
Depositary or other Person with respect to the accuracy of the
records of the Depositary or its nominee or of any participant or
member thereof, with respect to any ownership interest in the
Securities or with respect to the delivery to any participant,
member, beneficial owner or other Person (other than the
Depositary) of any notice or the payment of any amount or
delivery of any Securities (or other security or property) under
or with respect to such Securities. All notices and
communications to be given to the Holders and all payments to be
made to Holders in respect of the Securities shall be given or
made only to or upon the order of the registered Holders (which
shall be the Depositary or its nominee in the case of a Global
Security). The rights of beneficial owners in any Global
Security shall be exercised only through the Depositary subject
to the applicable rules and procedures of the Depositary. The
Trustee may rely and shall be fully protected in relying upon
information furnished by the Depositary 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 (including any transfers between or among Depositary
participants, members or beneficial owners in any Global
Security) other than to require delivery of such certificates and
other documentation or evidence as are expressly required by, and
to do so if and when expressly required by, the terms of this
Indenture, 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]
Citibank, N.A
111 Wall Street, 5th Floor
New York, NY 10005
Attention: Global Agency & Trust Services
Re: CK Witco Corporation
8 1/2% Senior Notes due 2005
Ladies and Gentlemen:
This certificate is delivered to request a transfer of
$ aggregate principal amount of the 8 1/2% Senior Notes due
2005 (the "Securities") of CK Witco Corporation (the "Company").
The undersigned represents and warrants to you that:
1. We are an institutional "accredited investor" (as
defined in Rule 501(a)(1), (2), (3) or (7) 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" at least $250,000 principal amount of the
Securities, and we are acquiring the Securities not with a view
to, or for offer or sale in connection with, any distribution in
violation of the Securities Act. 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 invest in or purchase securities similar to the
Securities in the normal course of our business. 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 that the Securities have not been
registered under the Securities Act and, unless so registered,
may not be sold except as permitted in the following sentence.
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, to a
person we reasonably believe is a qualified institutional buyer
under 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 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 Rule
501(a)(1), (2), (3) or (7) under the Securities Act that is
purchasing for its own account or for the account of such an
institutional "accredited investor," in either 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 (c), (d) or (e) above prior to the
Resale Restriction Termination Date, the transferor shall deliver
a letter from the transferee substantially in the form of this
letter to the Company and the Trustee, which shall provide, among
other things, that the transferee is an institutional "accredited
investor" (within the meaning of Rule 501(a)(1), (2), (3) or (7)
under the Securities Act) and that it is acquiring such
Securities for investment purposes and not for distribution in
violation of the Securities Act. Each purchaser acknowledges
that the Company and the Trustee reserve the right prior to any
offer, sale or other transfer prior to the Resale Termination
Date of the Securities pursuant to clauses (d), (e) or (f) above
to require the delivery of an opinion of counsel, certifications
and/or other information satisfactory to the Company and the
Trustee.
TRANSFEREE:
BY
SECTION 2.8. Form of Certificate to be Delivered in Connection
with Transfers Pursuant to Regulation S.
[Date]
Citibank, N.A.
111 Wall Street, 5th Floor
New York, NY 10005
Attention: Global Agency & Trust Services
Re: CK Witco Corporation
8 1/2% Senior Notes due 2005 (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.
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 Signature Medallion
Guaranteed
SECTION 2.9. Mutilated, Destroyed, Lost or Stolen
Securities. If a mutilated Security is surrendered to the
Registrar or if the Holder of a Security claims that the Security
has been lost, destroyed or wrongfully taken, the Company shall
issue and the Trustee shall authenticate a replacement Security
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 that any of them may suffer if a Security
is replaced, then, 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 deliver, in exchange for any such
mutilated Security or in lieu of any such destroyed, lost or
stolen Security, a new Security of like tenor and principal
amount, bearing a number not contemporaneously Outstanding.
In case any such mutilated, destroyed, lost or stolen
Security has become or is about to become due and payable, the
Company in its discretion may, instead of issuing a new Security,
pay such Security.
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 issued pursuant to this Section in
lieu of any mutilated, destroyed, lost or stolen Security shall
constitute an original additional contractual obligation of the
Company and any other obligor upon the Securities, 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 duly issued hereunder.
The provisions of this Section are exclusive and shall
preclude (to the extent lawful) all other rights and remedies
with respect to the replacement or payment of mutilated,
destroyed, lost or stolen Securities.
SECTION 2.10. Temporary Securities. Until Definitive
Securities are ready for delivery, the Company may prepare and
the Trustee shall authenticate temporary Securities. Temporary
Securities shall be substantially in the form of Definitive
Securities but may have variations that the 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, the temporary Securities shall be
exchangeable for Definitive Securities upon surrender of the
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 cancellation of any one
or more temporary Securities, the Company shall execute, and the
Trustee shall authenticate and make available for delivery in
exchange therefor, one or more Definitive Securities representing
an equal principal amount of Securities. Until so exchanged, the
Holder of temporary Securities shall in all respects be entitled
to the same benefits under this Indenture as a holder of
Definitive Securities.
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 by
delivering a certificate of such destruction to the Company. The
Company may not issue new Securities to replace Securities it has
paid or delivered to the Trustee for cancellation.
SECTION 2.12. Payment of Interest; Defaulted Interest.
Interest on any Security 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 which is payable, but is
not paid when the same becomes due and payable and such
nonpayment continues for a period of 30 days shall forthwith
cease to be payable to the Holder on the regular record date by
virtue of having been such Holder, and such defaulted interest
and (to the extent lawful) interest on such defaulted interest at
the rate borne by the Securities (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
(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 notify the Trustee in
writing of the amount of Defaulted Interest proposed to be paid
on each Security and the date (not less than 30 days after such
notice) of the proposed payment (the "Special Interest Payment
Date"), and at the same time 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 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 Special
Interest Payment Date and not less than 10 days after the receipt
by the Trustee of the notice of the proposed payment. The
Trustee shall promptly notify the Company of such Special Record
Date, and in the name and at the expense of the Company, shall
cause notice of the proposed payment of such Defaulted Interest
and the Special Record Date and Special Interest Payment Date
therefor to be given in the manner provided for in Section 10.2,
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 and Special Interest Payment Date therefor
having been so given, such Defaulted Interest shall be paid on
the Special Interest Payment Date 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 any Defaulted
Interest in any other lawful manner not inconsistent with the
requirements of any securities exchange on which the Securities
may be listed, and upon such notice as may be required by such
exchange, if, after 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.
Subject to the foregoing provisions of this Section,
each Security delivered under this Indenture upon registration of
transfer of or in exchange for or in lieu of any other Security
shall carry the rights to interest accrued and unpaid, and to
accrue, which were carried by such other Security.
SECTION 2.13. Computation of Interest. Interest on
the Securities 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 may use "CUSIP" numbers (if then generally in
use), and, if so, the Trustee shall use "CUSIP" numbers in
notices of redemption as a convenience to Holders; provided that
any such notice may state that no representation is made as to
the correctness of such numbers either as printed on the
Securities or as contained in any notice of a redemption and
their reliance may be placed only on the other identification
numbers printed on the Securities, and any such redemption shall
not be affected by any defect in or omission of such numbers.
The Company will promptly notify the Trustee of any change in the
"CUSIP" numbers.
ARTICLE III
Covenants
SECTION 3.1. Payment of Securities. The Company shall
promptly pay the principal of and interest on the Securities on
the dates and in the manner provided in the Securities and in
this Indenture. Principal and interest shall be considered paid
on the date due if on such date the Trustee or the Paying Agent
holds in accordance with this Indenture money sufficient to pay
all principal and interest then due and the Trustee or the Paying
Agent, as the case may be, is not prohibited from paying such
money to the Securityholders on that date pursuant to the terms
of this Indenture.
The Company shall pay interest on overdue principal at
the rate specified therefor in the Securities, and it shall pay
interest on overdue installments of interest at the same rate to
the extent lawful.
Notwithstanding anything to the contrary contained in
this Indenture, the Company may, to the extent it is required to
do so by law, deduct or withhold income or other similar taxes
imposed by the United States of America from principal or
interest payments hereunder.
SECTION 3.2. Reports by the Company. The Company
shall file with the Trustee and the SEC, and transmit to
Securityholders, such information, documents and other reports
(including annual and quarterly reports), and such summaries
thereof, as may be required pursuant to the TIA at the times and
in the manner provided pursuant to such Act; provided that any
such information, documents or reports required to be filed with
the Commission pursuant to Section 13 or 15(d) of the Exchange
Act shall be filed with the Trustee within 15 days after the same
is so required to be filed with the SEC. 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, including the Company's compliance with any of
its covenants hereunder (as to which the Trustee is entitled to
rely exclusively on Officers' Certificates).
SECTION 3.3. Limitation on Mortgages. The Company
will not create or assume and will not permit any Restricted
Subsidiary other than a Foreign Subsidiary to create or assume
any Mortgage of or upon any of its Principal Properties now owned
or hereafter acquired, of or upon any income or profits
therefrom, without making effective provision, and the Company
covenants that in any such case it will make or cause to be made
effective provision, whereby the Securities shall be secured by
such Mortgage equally and ratably with any and all other
obligations and Indebtedness thereby secured, or shall be secured
by a senior Mortgage, so long as any such other obligations and
Indebtedness shall be so secured; provided that the foregoing
covenant shall not apply to any of the following:
(1) The creation of any Mortgage on any property
hereafter acquired by the Company or any Restricted Subsidiary,
contemporaneously with such acquisition or within 270 days
thereafter, to secure or provide for the payment of any part of
the purchase price of such property, or the assumption by the
Company or any Restricted Subsidiary of any Mortgage upon any
property hereafter acquired by the Company or any Restricted
Subsidiary existing at the time of such acquisition, provided
that the principal amount of any Indebtedness secured by any such
Mortgage created or assumed shall not exceed the cost to the
Company or Restricted Subsidiary, as the case may be, of the
property covered by such Mortgage (including, in the case of the
assumption of such Mortgage, the principal amount of the
Indebtedness secured thereby), or the fair value (if and as
determined by the Board of Directors) of such property at the
time the Mortgage is created or assumed, whichever shall be less.
(2) Any Mortgage on any property acquired by the
Company or any Restricted Subsidiary existing at the time of such
acquisition and any Mortgage executed by any corporation or other
entity acquired by the Company or any Restricted Subsidiary and
exclusively securing any Indebtedness in a principal amount
existing at the time of such acquisition, and, in each case, not
assumed by the Company or any Restricted Subsidiary.
(3) Any Mortgage executed (i) by any Restricted
Subsidiary and exclusively securing any Indebtedness incurred by
such Restricted Subsidiary to the Company or to one or more other
Restricted Subsidiaries or (ii) by the Company and exclusively
securing any Indebtedness incurred by the Company to any
Restricted Subsidiary.
(4) The creation of one or more Mortgages for the sole
purpose of extending, renewing, refinancing or refunding in whole
or in part one or more of the Mortgages referred to in
clauses (1), (2), or (3) of this Section or one or more of the
Mortgages existing on March 7, 2000 on any assets of the Company
or a Restricted Subsidiary or one or more Mortgages permitted by
this paragraph 4; provided that the aggregate principal amount of
Indebtedness secured by any such extension, renewal, refinancing
or refunding Mortgage shall not exceed the aggregate amount of
Indebtedness secured by the Mortgage or Mortgages being extended,
renewed, refinanced or refunded at the time of such extension,
renewal, refinancing or refunding and that such extending,
renewing, refinancing or refunding Mortgage shall be limited to
(A) all or any part of the same property (and improvements
thereon) which secured the Mortgage extended, renewed, refinanced
or refunded or (B) in the case of a simultaneous extension,
renewal, refinancing or refunding of one or more Mortgages on
contiguous property (and improvements thereon), all or any part
of the same contiguous property which secured the Mortgage
extended, renewed, refinanced or refunded; and provided further
that in the case of any extension, renewal, refinancing or
refunding of a Mortgage of the type referred to in clause (3) or
this clause, neither the Company nor any Restricted Subsidiary
(other than the Restricted Subsidiary whose property is subject
thereto) that has not theretofore assumed the indebtedness
secured thereby shall assume any Indebtedness secured by such
extending, renewing, refinancing or refunding Mortgage.
(5) Liens of carriers, warehousemen, mechanics and
materialmen incurred in the ordinary course of business for sums
not yet due or being contested in good faith.
(6) Liens in favor of the United States of America, or
any State or subdivision thereof, or any other county or
subdivision thereof where the Company or any Restricted
Subsidiary may transact any of its business, or any governmental
agency, to the extent required in the ordinary course of
business.
(7) Liens for taxes or assessments or governmental
charges or levies, if such taxes, assessments, governmental
charges or levies shall not at the time be due and payable, or if
the same thereafter can be paid without penalty, or if the same
are being contested in good faith by appropriate proceedings.
(8) Pledges or deposits to secure payment of worker's
compensation or insurance premiums, or in connection with
tenders, bids or contracts (other than contracts for the payment
of money) or leases, deposits to secure surety, appeal or
performance bonds, pledges or deposits in connection with
contracts made with or at the request of the United States of
America or any State or any agency of the United States or any
such State, and pledges or deposits for purposes similar to any
of the above in the ordinary course of business.
(9) Liens created by or resulting from any litigation
or legal or administrative proceeding which at the time is
currently being contested in good faith by appropriate
proceedings.
(10) Leases made or existing (i) on property acquired
in the ordinary course of business or (ii) on individual
properties subject to the lease having a value of less than $1
million per property or $25 million in the aggregate.
(11) Landlords' liens on property held under lease.
(12) Liens incurred in the ordinary course of business
with respect to obligations that (i) are not incurred in
connection with the borrowing of money or the obtaining of
advances or credit (other than trade credit in the ordinary
course of business) and (b) do not in the aggregate materially
detract from the value of the property or materially impair the
use thereof in the operation of business by the Company or any of
its Restricted Subsidiaries.
(13) Liens with respect to Permitted Subsidiary
Indebtedness incurred pursuant to clauses (vii), (viii) and (x)
of the definition of Permitted Subsidiary Indebtedness.
(14) Any Mortgage securing Indebtedness, the net
proceeds of which are promptly deposited to defease the
Securities as described under Section 7.1.
(15) Any Mortgage created pursuant to and in compliance
with the provisions of Section 3.7.
Notwithstanding the foregoing provisions of this
Section, the Company or any Restricted Subsidiary may grant such
easements for ingress and egress over property owned by the
Company or such Restricted Subsidiary in favor of the United
States or any State, or any department, agency, instrumentality
or political subdivision of either, as is necessary to permit the
attachment or removal of any equipment or other property designed
primarily for the purpose of pollution control, solid waste and
waste water treatment and with respect to which the Company or
any Restricted Subsidiary may have granted a lien or transferred
title to such government or governmental agency pursuant to the
foregoing provisions of this Section or of Section 3.4 in
connection with the financing of such equipment or other
property; provided that any such lien on equipment or other
property designed primarily for the purpose of pollution control
shall not apply to any other property owned by the Company or any
Restricted Subsidiary and any such transfer of title to equipment
or other property designed primarily for the purpose of pollution
control shall not include transfer of title to any other property
owned by the Company or any Restricted Subsidiary.
The sale or other transfer of oil, gas or other
minerals in place for a period of time until, or in an amount
such that, the transferee will realize therefrom a specified
amount (however determined) of money for such minerals, or the
sale or other transfer of any other interest in property of the
character commonly referred to as a production payment shall not
be deemed to create, for purposes of this Section, any Mortgage
upon the assets of the Company or any Restricted Subsidiary.
If at any time the Company or any Restricted Subsidiary
shall create or assume any Mortgage not excepted from this
Section as above provided, and not exempted under Section 3.5,
the Company will promptly deliver to the Trustee (1) an Officers'
Certificate stating that the covenant of the Company contained in
the first paragraph of this Section has been complied with, and
(2) an Opinion of Counsel stating that, in the opinion of such
counsel, such covenant has been complied with and that any
instruments executed by the Company in performance of such
covenant comply with the requirements thereof.
In the event that the Company shall hereafter secure
the Securities equally and ratably with, or senior to, any other
obligation or Indebtedness pursuant to the provisions of this
Section, the Trustee is hereby authorized to enter into an
amendment to this Indenture or agreement supplemental hereto and
to take such action, if any, as it may deem advisable to enable
it to enforce effectively the rights of the Holders of the
Securities so secured equally and ratably with such other
obligation or Indebtedness. The Trustee shall be entitled to
receive, and subject to the provisions of Section 6.1 and Section
6.2 hereof, shall be fully protected in relying upon, an Opinion
of Counsel as conclusive evidence that any amendment hereto or
action taken equally and ratably to secure the Securities
complies with the provisions of this Section. In the event that
the Company or any Restricted Subsidiary shall be entitled in
accordance with the provisions of this Indenture to a release of
any Mortgage granted to secure the Securities, the Trustee is
hereby authorized to take such action and execute and deliver
such documents and instruments as the Company or such Restricted
Subsidiary may request to implement and evidence the release of
such Mortgage.
Subject to the provisions of Section 3.4, nothing
herein contained shall be deemed to prevent the Company or any
Restricted Subsidiary from selling any property with the
intention of taking back a lease of such property.
The covenant contained in this Section 3.3 is subject
to the provision for exempted Indebtedness in Section 3.5.
SECTION 3.4. Limitation on Sale and Leaseback
Transactions. The Company will not, nor will it permit any
Restricted Subsidiary, other than a Foreign Subsidiary, to enter
into any arrangement with any person providing for the leasing by
the Company or any Restricted Subsidiary of any Principal
Property (except for temporary leases of not more than three
years and except for leases between the Company and a Subsidiary
or between Subsidiaries), which property has been or is to be
sold or transferred by the Company or such Restricted Subsidiary
to such person unless either
(a) the Company or such Restricted Subsidiary would be
entitled pursuant to Section 3.3 to incur Indebtedness secured by
a Mortgage on the property to be leased 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 apply an amount at least equal to
the net proceeds of such sale or transfer or the fair value as
determined by the Board of Directors of such property, whichever
is greater, to the redemption or retirement, within 120 days of
the effective date of any such arrangement of Indebtedness of the
Company which is not subordinate or junior in right of payment to
the Securities; provided, however, that in lieu of applying all
or any part of such amount to such redemption or retirement of
such Indebtedness, the Company may, within 75 days after such
sale voluntarily retire Indebtedness, excluding redemption and
retirement of Indebtedness pursuant to mandatory sinking fund or
mandatory prepayment provisions or by payment at maturity, and
thereby reduce the amount of cash which the Company shall be
required to apply to the redemption or retirement of Indebtedness
under this Section by an amount equal to the aggregate of the
principal amount of the Indebtedness, as the case may be, so
redeemed or retired.
The covenant contained in this Section is subject to
the provision for exempted Indebtedness in Section 3.5.
SECTION 3.5. Exempted Indebtedness. Notwithstanding
the provisions contained in Sections 3.3 and 3.4, the Company and
its Subsidiaries may, without securing any Securities, secure
obligations or Indebtedness which would otherwise be subject to
the limitations of Section 3.3 or may, without redeeming or
retiring Indebtedness, enter into sale and lease-back
transactions which would otherwise be subject to the limitations
of Section 3.4, or there may be a combination of such
transactions, if after giving effect to any such security
arrangements and any such sale and lease-back transactions the
sum (computed without double-counting) of (1) the aggregate
amount of all such obligations and Indebtedness then outstanding
the securing of which would otherwise have been prohibited at the
time the security was granted by the limitations of Section 3.3,
and (2) the aggregate amount of all Attributable Debt then
outstanding under all then existing leases under sale and lease-
back transactions which would otherwise be or have been
prohibited by the provisions of Section 3.4, does not at any such
time exceed 10% of Consolidated Net Tangible Assets.
SECTION 3.6. Limitation on Subsidiary Indebtedness.
(a) The Company will not cause or permit any
Restricted Subsidiary that is not a Foreign Subsidiary, and is
not a Guarantor of the Securities, directly or indirectly, to
create, incur, assume, guarantee or otherwise in any manner
become liable for the payment of or otherwise incur
(collectively, "incur") any Subsidiary Indebtedness, including
any Acquired Indebtedness but excluding any Permitted Subsidiary
Indebtedness, unless such Restricted Subsidiary simultaneously
executes and delivers a supplemental indenture providing for a
Guarantee of the Securities. The Company will not cause or
permit any Restricted Subsidiary that is a Foreign Subsidiary
("Foreign Restricted Subsidiary"), the stock of which is not
already pledged to secure the Company's obligations with respect
to the Securities, directly or indirectly to incur any Subsidiary
Indebtedness, including any Acquired Indebtedness but excluding
any Permitted Subsidiary Indebtedness, unless 100% of the
nonvoting stock and 65% of the voting stock of such Foreign
Restricted Subsidiary is pledged to secure the Company's
obligations with respect to the Securities and the Company
executes a pledge agreement substantially in the form of Annex I
hereto (a "Foreign Stock Pledge"). Notwithstanding the
foregoing, any Restricted Subsidiary may incur Subsidiary
Indebtedness which would otherwise be prohibited by the
restrictions hereunder if immediately thereafter, the sum
(computed without double-counting) of (i) all outstanding
Subsidiary Indebtedness (excluding Permitted Subsidiary
Indebtedness), (ii) all outstanding obligations or Indebtedness
secured by Mortgages that would be prohibited by Section 3.3
(without taking into account Section 3.5) and (iii) all
Attributable Debt relating to all then existing leases under sale
and lease-back transactions which would have been prohibited by
the provisions of Section 3.4 (without taking into account
Section 3.5), does not at the time of incurrence thereof exceed
10% of Consolidated Net Tangible Assets.
(b) For purposes of determining compliance with
this covenant, in the event that an item of Indebtedness meets
the criteria of more than one of the categories of Permitted
Subsidiary Indebtedness described in the definition of Permitted
Subsidiary Indebtedness, the Company shall, in its sole
discretion, classify such item of Indebtedness in any manner that
complies with this covenant and such item of Indebtedness will be
treated as having been incurred pursuant to only one of such
clauses. Accrual of interest and the accretion of accreted value
will not be deemed to be an incurrence of Indebtedness for
purposes of this covenant.
(c) Notwithstanding anything foregoing to the
contrary, any Guarantee by a Restricted Subsidiary or a Foreign
Stock Pledge shall provide by its terms that it, and any liens
securing the same, shall be automatically and unconditionally
released and discharged upon:
(i) any sale or transfer to, or exchange with any
Person of all of the Company's equity interests in, or all or
substantially all the assets of, such Restricted Subsidiary,
which transaction is in compliance with the terms of this
Indenture and such Restricted Subsidiary is released from all
guarantees, if any, by it of other Subsidiary Indebtedness of the
Company or any Restricted Subsidiaries,
(ii) the payment in full of all obligations under
the Subsidiary Indebtedness the incurrence of which required the
delivery of such Guarantee or a Foreign Stock Pledge if the
Restricted Subsidiary has no other outstanding Subsidiary
Indebtedness that would require the delivery of such guarantee or
Foreign Stock Pledge,
(iii) with respect to Subsidiary Indebtedness
constituting guarantees of Indebtedness, the release by the
holders of such Indebtedness of the guarantee by such Restricted
Subsidiary, including any deemed release upon payment in full of
all obligations under such Indebtedness, at such time as
(A) no other Indebtedness, the incurrence of which
required the delivery of a Guarantee or a Foreign Stock Pledge,
constituting Subsidiary Indebtedness has been guaranteed by such
Restricted Subsidiary, or
(B) the holders of all such other Indebtedness
constituting Subsidiary Indebtedness which is guaranteed by such
Restricted Subsidiary, the incurrence of which required the
delivery of a Guarantee or a Foreign Stock Pledge, also release
the guarantee by such Restricted Subsidiary, including any deemed
release upon payment in full of all obligations under such
Indebtedness.
(d) For purposes of this Section 3.6, any Acquired
Indebtedness shall not be deemed to have been incurred until 270
days from the date:
(A) the Person obligated on such Acquired
Indebtedness becomes a Restricted Subsidiary or
(B) the acquisition of assets in connection with
which such Acquired Indebtedness was assumed is consummated.
(e) In the event that the Company or any Subsidiary
shall be entitled in accordance with the provisions of this
Indenture to a release of any Guarantee or a Foreign Stock Pledge
granted to secure the Securities, the Trustee is hereby
authorized to take such action and execute and deliver such
documents and instruments as the Company or such Subsidiary may
request to implement and evidence the release of such Guarantee
or a Foreign Stock Pledge.
SECTION 3.7. Sales of Accounts Receivable.
The Company may, and any of its Restricted Subsidiaries
may, sell at any time and from time to time, accounts receivable
and notes receivable and related assets to an Accounts Receivable
Subsidiary; provided that (i) the aggregate consideration
received in each such sale is at least equal to the aggregate
fair market value of the receivables sold, as determined by the
Board of Directors in good faith, (ii) no less than 80% of the
consideration received in each such sale consists of either cash
or a promissory note (a "Promissory Note") which is subordinated
to no Indebtedness or obligation (except that it may be
subordinated to the financial institutions or other entities
providing the financing to the Accounts Receivable Subsidiary
with respect to such accounts receivable (the "Financier")) or an
equity interest in such Accounts Receivable Subsidiary; provided,
further that the initial sale will include all accounts
receivable of the Company and/or its Restricted Subsidiaries that
are party to such arrangements that constitute eligible
receivables under such arrangements and (iii) the Company and its
Restricted Subsidiaries will sell all accounts receivable that
constitute eligible receivables under such arrangements to the
Accounts Receivable Subsidiary no less frequently than on a
monthly basis.
The Company (i) will not permit any Accounts Receivable
Subsidiary to sell any accounts receivable purchased from the
Company or any of its Restricted Subsidiaries to any other Person
except on an arm's length basis and solely for consideration in
the form of cash or Cash Equivalents; (ii) will not permit the
Accounts Receivable Subsidiary to engage in any business or
transaction other than the purchase, financing and sale of
accounts receivable of the Company and its Restricted
Subsidiaries and activities incidental thereto, (iii) will not
permit any Accounts Receivable Subsidiary to incur Indebtedness
in an amount in excess of the book value of such Accounts
Receivable Subsidiary's total assets, as determined in accordance
with generally accepted accounting principles and (iv) will, at
least as frequently as monthly, cause the Accounts Receivable
Subsidiary to remit to the Company as payment on the outstanding
balance of the Promissory Notes, all available cash or Cash
Equivalents not held in a collection account pledged to a
Financier, to the extent not applied to pay or maintain reserves
for reasonable operating expenses of the Accounts Receivable
Subsidiary or to satisfy reasonable minimum operating capital
requirements.
SECTION 3.8. Waiver of Certain Covenants. The
Company may omit in any particular instance to comply with any
covenant or condition set forth in Sections 3.3, 3.4, 3.5 and 3.6
if before the time for such compliance the Holders of at least a
majority in principal amount of the Outstanding Securities shall,
by notice to the Trustee, either waive such compliance in such
instance or generally waive compliance with such covenant or
condition, but no such waiver shall extend to or affect such
covenant or condition except to the extent so expressly waived,
and, until such waiver shall become effective, the obligations of
the Company and the duties of the Trustee in respect of any such
covenant or condition shall remain in full force and effect.
SECTION 3.9. Maintenance of Office or Agency. The
Company will maintain in The City of New York an office or agency
where the Securities may be presented or surrendered for payment,
where, if applicable, the Securities may be surrendered for
registration of transfer or exchange and where notices and
demands to or upon the Company in respect of the Securities and
this Indenture may be served. The corporate trust office of the
Trustee, which initially shall be located at 111 Wall Street, 5th
Floor New York, N.Y. 10005 Attention: Global Agency & Trust
Services (the "Corporate Trust Office") 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 of such
purposes. 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 (in or outside of The City of New
York) where the Securities 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 The City of New
York for such purposes. The Company will give prompt written
notice to the Trustee of any such designation or rescission and
any change in the location of any such other office or agency.
SECTION 3.10. Money for Security Payments to be Held
in Trust. If the Company shall at any time act as its own Paying
Agent, it will, on or before each due date of the principal of
(or premium, if any) or interest on the Securities, segregate and
hold in trust for the benefit of the Persons entitled thereto a
sum sufficient to pay the principal of (and 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
to so act.
Whenever the Company shall have one or more Paying
Agents for the Securities, it will, on or before each due date of
the principal of (or premium, if any) or interest on any
Securities, deposit with any Paying Agent a sum in same day funds
(or New York Clearing House funds if such deposit is made prior
to the date on which such deposit is required to be made) that
shall be available to the Trustee by 10:00 a.m. New York City
time on such due date sufficient to pay the principal (and
premium, if any) or interest so becoming due, such sum to be held
in trust for the benefit of the Persons entitled to such
principal, premium or interest, and (unless such Paying Agent is
the Trustee) the Company will promptly notify the Trustee in
writing of such action or any failure to so act.
The Company will cause each Paying Agent (other than
the Trustee) to execute and deliver to the Trustee an instrument
in which such Paying Agent shall agree with the Trustee, subject
to the provisions of this Section, that such Paying Agent will:
(a) hold all sums held by it for the payment of the
principal of (and premium, if any) or interest on the Securities
in trust for the benefit of the Persons entitled thereto until
such sums shall be paid to such Persons or otherwise disposed of
as herein provided;
(b) give the Trustee written notice of any default by
the Company (or any other obligor upon the Securities) in the
making of any payment of principal (and premium, if any) or
interest; and
(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 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 trusts 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 sums.
Subject to any applicable abandoned property law, any
money deposited with the Trustee or any Paying Agent, or then
held by the Company, in trust for the payment of the principal of
(or premium, if any) or interest on any Security and remaining
unclaimed for two years after such principal, premium or interest
has become due and payable shall be paid to the Company on
Company Order, or (if then held by the Company) shall be
discharged from such trust; 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 to the Company,
may at the expense of the Company mail to the Holders of the
Securities as to which the money to be repaid was held in trust,
as their names and addresses appear in the Security Register, a
notice that such moneys remain unclaimed and that, after a date
specified in the notice, which shall not be less than 30 days
from the date on which the notice was first mailed to the Holders
of the Securities as to which the money to be repaid was held in
trust, any unclaimed balance of such moneys then remaining will
be paid to the Company free of the trust formerly impressed upon
it.
SECTION 3.11. Corporate Existence. Subject to Article
IV, the Company will do or cause to be done all things necessary
to preserve and keep in full force and effect its corporate
existence.
SECTION 3.12. Compliance Certificate. The Company
shall deliver to the Trustee within 120 days after the end of
each fiscal year of the Company an Officers' Certificate, one of
the signers of which is the principal executive, principal
financial or principal accounting officer of the Company stating,
that in the course of the performance by the signers of their
duties as Officers of the Company they would normally have
knowledge of any Default or Event of Default and whether or not
the signers know of any Default or Event or Default that occurred
during such period. If they do, the certificate shall describe
the Default or Event of Default, its status and what action the
Company is taking or proposes to take with respect thereto. The
Company also shall comply with TIA ss. 314(a)(4).
SECTION 3.13. Maintenance of Properties. The Company
will cause all properties used or useful in the conduct of its
business or the business of any Subsidiary to be maintained and
kept in good condition, repair and working order and supplied
with all necessary equipment and will cause to be made all
necessary repairs, renewals, replacements, betterments and
improvements thereof, all as in the judgment of the Company may
be necessary so that the business carried on in connection
therewith may be properly and advantageously conducted at all
times; provided, however, that nothing in this Section shall
prevent the Company from discontinuing the operation or
maintenance of any of such properties if such discontinuance is,
in the judgment of the Company, desirable in the conduct of its
business or the business of any Subsidiary and not
disadvantageous in any material respect to the Holders.
SECTION 3.14. Payment of Taxes and Other Claims. The
Company will pay or discharge or cause to be paid or discharged,
before the same shall become delinquent, (1) all taxes,
assessments and governmental charges levied or imposed upon the
Company or any Subsidiary or upon the income, profits or property
of the Company or any Subsidiary, and (2) all lawful claims for
labor, materials and supplies which, if unpaid, might by law
become a lien upon the property of the Company or any Subsidiary;
provided, however, that the Company shall not be required to pay
or discharge or cause to be paid or discharged any such tax,
assessment, charge or claim whose amount, applicability or
validity is being contested in good faith by appropriate
proceedings.
SECTION 3.15 Statement by Officers as to Default.
The Company shall deliver to the Trustee, as soon as possible and
in any event within five days after the Company becomes aware of
the occurrence of any Event of Default or an event which, with
notice or the lapse of time or both, would constitute an Event of
Default, an Officers' Certificate setting forth the details of
such Event of Default or default and the action which the Company
proposes to take with respect thereto.
ARTICLE IV
Consolidation, Merger, Conveyance, Transfer or Lease
SECTION 4.1. Company May Consolidate, Etc., Only on
Certain Terms. The Company shall not consolidate with or merge
into any other Person or convey, transfer or lease its properties
and assets substantially as an entirety to any Person, and the
Company shall not permit any Person to consolidate with or merge
into the Company or convey, transfer or lease its properties and
assets substantially as an entirety to the Company, unless:
(1) in case the Company shall consolidate with or merge
into another Person or convey, transfer or lease its properties
and assets substantially as an entirety to any Person, the Person
formed by such consolidation or into which the Company is merged
or the Person which acquires by conveyance or transfer, or which
leases, the properties and assets of the Company substantially as
an entirety shall be a corporation, partnership, limited
liability company or trust, shall be organized and validly
existing under the laws of the United States of America, any
State thereof or the District of Columbia and shall expressly
assume, by an amendment to this Indenture, executed and delivered
to the Trustee, in form satisfactory to the Trustee, the due and
punctual payment of the principal of and any premium and interest
on all the Securities and the performance or observance of every
covenant of this Indenture on the part of the Company to be
performed or observed;
(2) immediately after giving effect to such transaction
and treating any indebtedness which becomes an obligation of the
Company or any Subsidiary as a result of such transaction as
having been incurred by the Company or such Subsidiary at the
time of such transaction, no Event of Default, and no event
which, after notice or lapse of time or both, would become an
Event of Default, shall have happened and be continuing;
(3) if, as a result of any such consolidation or merger
or such conveyance, 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 this Indenture, the Company or such successor
Person, as the case may be, shall take such steps as shall be
necessary effectively to secure the Securities equally and
ratably with (or prior to) all indebtedness secured thereby; and
(4) the Company has delivered to the Trustee an
Officers' Certificate and an Opinion of Counsel, each stating
that such consolidation, merger, conveyance, transfer or lease
and, if an indenture supplemental hereto is required in
connection with such transaction, such amendment complies with
this Article and that all conditions precedent herein provided
for relating to such transaction have been complied with.
SECTION 4.2. Successor Substituted. Upon any
consolidation of the Company with, or merger of the Company into,
any other Person or any conveyance, transfer or lease of the
properties and assets of the Company substantially as an entirety
in accordance with Section 4.1, the successor Person formed by
such consolidation or into which the Company is merged or to
which such conveyance, transfer or lease is made shall succeed
to, and be substituted for, and may exercise every right and
power of, the Company under this Indenture with the same effect
as if such successor Person had been named as the Company herein,
and thereafter, except in the case of a lease, the predecessor
Person shall be relieved of all obligations and covenants under
this Indenture and the Securities.
ARTICLE V
Defaults and Remedies
SECTION 5.1. Events of Default. "Event of Default",
whenever used herein, means any one of the following events
(whatever the reason for such Event of Default and whether it
shall be voluntary or involuntary or be effected by operation of
law or pursuant to any judgment, decree or order of any court or
any order, rule or regulation of any administrative or
governmental body):
(1) default in any payment of any interest upon any
Security when it becomes due and payable, and continuance of such
default for a period of 30 days;
(2) default in the payment of the principal of or
premium, if any, on, or the redemption price of, any Note, at its
Maturity;
(3) default in the performance, or breach, of any
covenant or warranty of the Company in this Indenture (other than
a covenant or warranty a default in whose performance or whose
breach is elsewhere in this Section specifically dealt with), and
continuance of such default or breach 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 10% in principal amount of the
Outstanding Securities, 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;
(4) a default under any bond, debenture, note or other
evidence of indebtedness for money borrowed by the Company or
under any mortgage, indenture or instrument under which there may
be issued or by which there may be secured or evidenced any
indebtedness for money borrowed by the Company (including this
Indenture) with a principal amount then outstanding, individually
or in the aggregate, in excess of $25,000,000, whether such
indebtedness now exists or shall hereafter be created, which
default shall have resulted in such indebtedness becoming or
being declared due and payable prior to the date on which it
would otherwise have become due and payable, or which results
from the nonpayment of such indebtedness at its stated maturity,
without such indebtedness having been discharged, or such
acceleration having been rescinded or annulled within a period of
10 days after there shall have 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 10% in principal
amount of the Outstanding Securities, a written notice specifying
such default and requiring the Company to cause such indebtedness
to be discharged or such acceleration to be rescinded or annulled
and stating that such notice is a "Notice of Default" hereunder;
(5) the entry by a court having jurisdiction in the
premises of (A) a decree or order for a relief in respect of the
Company in an involuntary case or proceeding under any applicable
Federal or state bankruptcy, insolvency, reorganization or other
similar law or (B) a decree or order adjudging the Company a
bankrupt or insolvent, or approving as properly filed a petition
seeking reorganization, arrangement, adjustment or composition of
or in respect of the Company under any applicable Federal or
state law, or appointing a custodian, receiver, liquidator,
assignee, trustee, sequestrator or other similar official of the
Company or of any substantial part of its property, or ordering
the winding up or liquidation of its affairs, and the continuance
of any such decree or order for relief or any such other decree
or order in effect for a period of 60 consecutive days; and
(6) the commencement by the Company of a voluntary case
or proceeding under any applicable Federal or state bankruptcy,
insolvency, reorganization or other similar law or of any other
case or proceeding to be adjudicated a bankrupt or insolvent, or
the consent by it to the entry of a decree or order for relief in
respect of the Company in an involuntary case or proceeding under
any applicable Federal or state bankruptcy, insolvency,
reorganization or other similar law or to the commencement of any
bankruptcy or insolvency case or proceeding against it, or the
filing by it of a petition or answer or consent seeking
reorganization or relief under any applicable Federal or state
law, or the consent by it to the filing of such petition or to
the appointment of or taking possession by a custodian, receiver,
liquidator, assignee, trustee, sequestrator or other similar
official of the Company or of any substantial part of its
property, or the making by it of an assignment for the benefit of
creditors, or the admission by it in writing of its inability to
pay its debts generally as they become due, or the taking of
corporate action by the Company in furtherance of any such
action.
The foregoing will constitute Events of Default
whatever the reason for any such Event of Default and whether it
is voluntary or involuntary or is 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.
SECTION 5.2. Acceleration. If an Event of Default
with respect to the Outstanding Securities occurs and is
continuing, then in every such case the Trustee or the Holders of
not less than 25% in principal amount of the Outstanding
Securities may declare the principal amount of all of the
Securities to be due and payable immediately, by a notice in
writing to the Company (and to the Trustee if given by Holders),
and upon any such declaration such principal amount (or specified
amount) shall become immediately due and payable.
At any time after such a declaration of acceleration
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 principal amount
of the Outstanding Securities, by written notice to the Company
and the Trustee, may rescind and annul such declaration and its
consequences if
(1) the Company has paid or deposited with the Trustee
a sum sufficient to pay
(A) all overdue interest on all Securities,
(B) the principal of (and premium, if any, on) any
Securities, which have become due otherwise than by such
declaration of acceleration and any interest thereon at the rate
or rates prescribed therefor in such Securities,
(C) to the extent that payment of such interest is
lawful, interest upon overdue interest at the rate or rates
prescribed therefor in such Securities, and
(D) all sums paid or advanced by the Trustee
hereunder and the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and
counsel;
and
(2) all Events of Default other than the non-payment of
the principal, which has become due solely by such declaration of
acceleration, have been cured or waived as provided in
Section 5.4.
No such rescission shall affect any subsequent default or impair
any right consequent thereon.
SECTION 5.3. Other Remedies. If an Event of Default
occurs and is continuing, the Trustee may pursue any available
remedy to collect the payment of principal of or interest on any
Securities or to enforce the performance of any provision of any
Securities or this Indenture.
The Trustee may maintain a proceeding even if it does
not possess any of the Securities or does not produce any of them
in the proceeding. A delay or omission by the Trustee or any
Securityholder in exercising any right or remedy accruing upon an
Event of Default shall not impair the right or remedy or
constitute a waiver of or acquiescence in the Event of Default.
No remedy is exclusive of any other remedy. All available
remedies are cumulative.
SECTION 5.4. Waiver of Past Defaults. The Holders of
a majority in principal amount of the Outstanding Securities, by
notice to the Trustee, may waive an existing Default or Event of
Default and its consequences except (i) a Default or Event of
Default in the payment of the principal of or any premium or
interest on a Note, or (ii) in respect of a covenant or
provision hereof which under Article VIII cannot be modified or
amended without the consent of each Securityholder affected.
When a Default or Event of Default is waived, it is deemed cured,
but no such waiver shall extend to any subsequent or other
Default or Event of Default or impair any consequent right.
SECTION 5.5. Control by Majority. The Holders of a
majority in principal amount of the Outstanding Securities may
direct the time, method and place of conducting any proceeding
for any remedy available to the Trustee or of exercising any
trust or power conferred on the Trustee. However, the Trustee
may refuse to follow any direction that conflicts with law or
this Indenture; provided, however, that the Trustee may take any
other action deemed proper by the Trustee that is not
inconsistent with such direction. Prior to taking any action
under this Indenture, the Trustee shall be entitled to
indemnification satisfactory to it in its sole discretion against
all losses and expenses caused by taking or not taking such
action.
SECTION 5.6. Limitation on Suits. No Holder 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
(1) such Holder has previously given written notice to
the Trustee of a continuing Event of Default;
(2) the Holders of not less than 25% in principal
amount of the Outstanding Securities shall have made written
request to the Trustee to institute proceedings in respect of
such Event of Default in its own name as Trustee hereunder;
(3) such Holder or Holders have offered to the Trustee
indemnity acceptable to the Trustee against the costs, expenses
and liabilities (including reasonable legal fees and expenses) to
be incurred in compliance with such request;
(4) the Trustee for 60 days after its receipt of such
notice, request and offer of indemnity has failed to institute
any such proceeding; and
(5) no direction inconsistent with such written request
has been given to the Trustee during such 60-day period by the
Holders of a majority in principal amount of the Outstanding
Securities;
it being understood and intended that no one or more of such
Holders shall have any right in any manner whatsoever 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 5.7. Rights of Holders to Receive Payment.
Notwithstanding any other provision of this Indenture, the right
of any Holder to receive payment of principal of, premium (if
any) or interest on the Securities held by such Holder, on or
after the respective Stated Maturities expressed in such
Securities, or to bring suit for the enforcement of any such
payment on or after such respective dates, shall not be impaired
or affected without the consent of such Holder.
SECTION 5.8. Collection Suit by Trustee. The Company
covenants that if
(1) default is made in the payment of any interest on
any Security when such interest becomes due and payable and such
default continues for a period of 30 days, or
(2) 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 Holders of such Securities, the whole amount then
due and payable on such Securities for principal and any premium
and interest and, to the extent that payment of such interest
shall be legally enforceable, interest on any overdue principal
and premium and on any overdue interest, at the rate or rates
prescribed therefor in such Securities, and, in addition thereto,
such further amount as shall be sufficient to cover the costs and
expenses of collection, including the reasonable compensation,
expenses, disbursements and advances of the Trustee, its agents
and counsel.
SECTION 5.9. Trustee May File Proofs of Claim. In
case of any judicial proceeding relative to the Company (or any
other obligor upon the Securities), its property or its
creditors, the Trustee shall be entitled and empowered, by
intervention in such proceeding or otherwise, to take any and all
actions authorized under the Trust Indenture Act in order to have
claims of the Holders and the Trustee allowed in any such
proceeding. 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 in any such judicial proceeding is hereby
authorized by each Holder to make 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 its
counsel, and any other amounts due the Trustee under Section 6.7.
No provision of this Indenture shall be deemed to
authorize the Trustee to authorize or consent to or accept or
adopt on behalf of any Holder any plan of reorganization,
arrangement, adjustment or composition affecting the Securities
or the rights of any Holder thereof or to authorize the Trustee
to vote in respect of the claim of any Holder in any such
proceeding.
SECTION 5.10. Priorities. If the Trustee collects any
money or property pursuant to this Article V, it shall pay out
the money or property in the following order:
FIRST: to the Trustee for amounts due under
Section 6.7;
SECOND: to Securityholders for amounts due and unpaid
for principal of and any premium and interest on the Securities,
in respect of which or for the benefit of which such money or
property has been collected, ratably, without preference or
priority of any kind, according to the amounts due and payable on
the Securities for principal and any premium of and any premium
and interest on the Securities, respectively; and
THIRD: to the Company.
The Trustee may fix a record date and payment date for
any payment to Securityholders pursuant to this Section. At
least 15 days before such record date, the Company shall mail to
each Securityholder and the Trustee a notice that states the
record date, the payment date and amount to be paid.
SECTION 5.11. Undertaking for Costs. In any suit for
the enforcement of any right or remedy under this Indenture or in
any suit against the Trustee for any action taken or omitted by
it as 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
costs, including reasonable attorneys' fees and expenses, against
any party litigant in the suit, having due regard to the merits
and good faith of the claims or defenses made by the party
litigant. This Section does not apply to a suit by the Trustee,
a suit by the Company, a suit by a Holder pursuant to Section 5.7
or a suit by Holders of more than 10% in principal amount of
Outstanding Securities.
ARTICLE VI
Trustee
SECTION 6.1. Duties of Trustee. (a) If an Event of
Default has occurred and is continuing, the Trustee shall
exercise the rights and powers vested in it by this Indenture and
use the same degree of care and skill in their exercise as a
prudent Person would exercise or use under the circumstances in
the conduct of such Person's own affairs.
(b) Except during the continuance of an Event of
Default:
(1) the Trustee undertakes to perform such duties and
only such duties as are specifically set forth in this Indenture
and no implied covenants or obligations shall be read into this
Indenture against the Trustee; and
(2) in the absence of bad faith on its part, the
Trustee may conclusively rely, as to the truth of the statements
and the correctness of the opinions expressed therein, upon
certificates or opinions furnished to the Trustee and conforming
to the requirements of this Indenture. However, in the case of
any such certificates or opinions which by any provisions hereof
are specifically required to be furnished to the Trustee, the
Trustee shall examine such certificates and opinions to determine
whether or not they conform to the requirements of this Indenture
(but need not confirm the accuracy of mathematical calculations
or other facts stated therein).
(c) The Trustee may not be relieved from liability for
its own negligent action, its own negligent failure to act or its
own wilful misconduct, except that:
(1) this paragraph does not limit the effect of
paragraph (b) of this Section;
(2) the Trustee shall not be liable for any error of
judgment made in good faith by a Trust Officer unless it is
proved that the Trustee was negligent in ascertaining the
pertinent facts; and
(3) the Trustee shall not be liable with respect to any
action it takes or omits to take in good faith in accordance with
a direction received by it pursuant to Section 5.5.
(d) The Trustee shall not be liable for interest on
any money received by it except as the Trustee may agree in
writing with the Company.
(e) Money held in trust by the Trustee need not be
segregated from other funds except to the extent required by law.
(f) No provision of this Indenture shall require the
Trustee to expend or risk its own funds or otherwise incur any
financial liability in the performance of any of its duties
hereunder or in the exercise of any of its rights or powers.
(g) 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
and to the provisions of the TIA.
SECTION 6.2. Rights of Trustee. (a) The Trustee may
conclusively rely on any document believed by it to be genuine
and to have been signed or presented by the proper person. The
Trustee need not investigate any fact or matter stated in the
document.
(b) Before the Trustee acts or refrains from acting,
it may require an Officers' Certificate or an Opinion of Counsel.
The Trustee shall not be liable for any action it takes or omits
to take in good faith in reliance on the Officers' Certificate or
Opinion of Counsel.
(c) The Trustee may act through its attorneys and
agents and shall not be responsible for the misconduct or
negligence of any agent appointed with due care.
(d) The Trustee shall not be liable for any action it
takes or omits to take in good faith which it believes to be
authorized or within its rights or powers; provided, however,
that the Trustee's conduct does not constitute wilful misconduct
or negligence.
(e) The Trustee may consult with counsel of its
selection, and the advice or opinion of counsel with respect to
legal matters relating to this Indenture and the Securities shall
be full and complete authorization and protection from liability
in respect to any action taken, omitted or suffered by it
hereunder in good faith and in accordance with the advice or
opinion of such counsel.
(f) The Trustee shall not be bound to make any
investigation into the facts or matters stated in any resolution,
certificate, statement, instrument, opinion, notice, request,
direction, consent, order, bond 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
at the sole cost of the Company and shall incur no liability or
additional liability of any kind by reason of such inquiry or
investigation.
(g) The Trustee shall not be deemed to have knowledge
of any Default or Event of Default except (i) any Event of
Default occurring pursuant to Section 5.1(1) and 5.1(2), or (ii)
any Default or Event of Default of which the Trustee shall have
received written notification or obtained "actual knowledge."
"Actual knowledge" shall mean the actual fact or statement of
knowing without independent investigation with respect thereto.
SECTION 6.3. Individual Rights of Trustee. The
Trustee in its individual or any other capacity may become the
owner or pledgee of Securities and may otherwise deal with the
Company or its Affiliates with the same rights it would have if
it were not Trustee. Any Paying Agent, Registrar, co-registrar
or co-paying agent may do the same with like rights. However,
the Trustee must comply with Sections 6.10 and 6.11.
SECTION 6.4. Trustee's Disclaimer. The Trustee shall
not be responsible for and makes no representation as to the
validity or adequacy of this Indenture or the Securities, it
shall not be accountable for the Company's use of the proceeds
from the Securities, and it shall not be responsible for any
statement of the Company in this Indenture or in any document
issued in connection with the sale of the Securities or in the
Securities other than the Trustee's certificate of authentication
or for the use or application of any funds received by any Paying
Agent other than the Trustee.
SECTION 6.5. Notice of Defaults. If a Default or
Event of Default occurs and is continuing, the Trustee shall mail
to each Securityholder notice of the Default or Event of Default
within 90 days after it occurs provided that in the case of
Default or Event of Default described in Section 5.1(3) no such
notice shall be given until at least 30 days after such Default
or Event of Default occurs and provided further that except in
the case of a Default or Event of Default in payment of principal
of, premium (if any), or interest on any Security, the Trustee
may withhold the notice if and so long as its board of directors,
a committee of its board of directors or a committee of its Trust
Officers and/or a Trust Officer of the Trustee in good faith
determines that withholding the notice is in the interests of
Securityholders.
SECTION 6.6. Reports by Trustee to Holders. As
promptly as practicable after each December 31 beginning with
December 31, 2000, and in any event prior to March 1 in each
year, the Trustee shall mail to each Securityholder a brief
report dated as of such December 31 that complies with TIA
ss. 313(a). The Trustee also shall comply with TIA ss. 313(b).
The Trustee shall also transmit by mail all reports required by
TIA ss. 313(c).
A copy of each report at the time of its mailing to
Securityholders shall be filed with the SEC and each stock
exchange (if any) on which the Securities are listed. The
Company agrees to notify promptly the Trustee in writing whenever
the Securities become listed on any stock exchange and of any
delisting thereof.
SECTION 6.7. Compensation and Indemnity. The Company
shall pay to the Trustee from time to time such compensation for
its services as the parties shall agree in writing from time to
time. The Trustee's compensation shall not be limited by any law
to compensation of a trustee of an express trust. The Company
shall reimburse the Trustee upon request for all reasonable out-
of-pocket expenses incurred or made by it, including, but not
limited to, costs of collection, costs of preparing and reviewing
reports, certificates and other documents, costs of preparation
and mailing of notices to Securityholders and reasonable costs of
counsel retained by the Trustee in connection with the delivery
of an Opinion of Counsel or otherwise, in addition to the
compensation for its services. Such expenses shall include the
reasonable compensation and expenses, disbursements and advances
of the Trustee's agents, counsel, accountants and experts. The
Company shall indemnify each of the Trustee, any predecessor
Trustee and each of its officers, directors, counsel and agents,
against any and all loss, liability, claim, damage or expense
(including, but not limited to, reasonable attorneys' fees and
expenses and taxes other than taxes based on the income of the
Trustee) incurred by it in connection with the acceptance and
administration of this trust and the performance of its duties
hereunder, including the costs and expenses of enforcing this
Indenture (including this Section 6.7) and of defending itself
against any claims (whether asserted by any Securityholder, the
Company or otherwise). The Trustee shall notify the Company
promptly of any claim for which it may seek indemnity. Failure
by the Trustee to so notify the Company shall not relieve the
Company of its obligations hereunder. The Company shall defend
the claim and the Trustee may have separate counsel and the
Company shall pay the fees and expenses of such counsel. The
Company need not reimburse any expense or indemnify against any
loss, liability or expense incurred by the Trustee through the
Trustee's own wilful misconduct or negligence, subject to the
exceptions contained in Section 6.1(c) hereof.
To secure the Company's payment obligations in this
Section, the Trustee shall have a lien prior to the Securities on
all money or property held or collected by the Trustee other than
money or property held in trust to pay principal of and any
premium and interest on particular Securities. The Trustee's
right to receive payment of any amounts due under this
Section 6.7 shall not be subordinate to any other liability or
indebtedness of the Company.
The Company's payment obligations pursuant to this
Section and any lien arising hereunder shall survive the
discharge of this Indenture and the resignation or removal of the
Trustee. When the Trustee incurs expenses after the occurrence
of a Default specified in Section 5.1(4), (5) or (6) with respect
to the Company, the expenses are intended to constitute expenses
of administration under any Bankruptcy Law.
SECTION 6.8. Replacement of Trustee. The Trustee may
resign at any time by so notifying the Company. The Holders of a
majority in principal amount of the Outstanding Securities may
remove the Trustee by so notifying the Company and the Trustee in
writing and may appoint a successor Trustee. The Company shall
remove the Trustee if:
(1) the Trustee fails to comply with Section 6.10;
(2) the Trustee is adjudged a bankrupt or insolvent;
(3) a receiver or other public officer takes charge of
the Trustee or its property; or
(4) the Trustee otherwise becomes incapable of acting.
If the Trustee resigns or is removed and the Holders do
not reasonably promptly appoint a successor Trustee, or if a
vacancy exists in the office of Trustee for any reason (the
Trustee in such event being referred to herein as the retiring
Trustee), the Company shall promptly appoint a successor Trustee.
A successor Trustee shall deliver a written acceptance
of its appointment to the retiring Trustee and to the Company.
Thereupon the resignation or removal of the retiring Trustee
shall become effective, and the successor Trustee shall have all
the rights, powers and duties of the Trustee under this
Indenture. The successor Trustee shall mail a notice of its
succession to Securityholders. The retiring Trustee shall
promptly transfer all property held by it as Trustee to the
successor Trustee, subject to the lien provided for in
Section 6.7.
If a successor Trustee does not take office within 60
days after the retiring Trustee resigns or is removed, the
retiring Trustee or the Holders of 10% in principal amount of the
Outstanding Securities may petition at the expense of the Company
any court of competent jurisdiction for the appointment of a
successor Trustee.
If the Trustee fails to comply with Section 6.10, any
Securityholder may petition any court of competent jurisdiction
for the removal of the Trustee and the appointment of a successor
Trustee.
Notwithstanding the replacement of the Trustee pursuant
to this Section 6.8, the Company's obligations under Section 6.7
shall continue for the benefit of the retiring Trustee.
SECTION 6.9. Successor Trustee by Merger. If the
Trustee consolidates with, merges or converts into, or transfers
all or substantially all its corporate trust business or assets
to, another corporation or banking association, the resulting,
surviving or transferee corporation without any further act shall
be the successor Trustee.
In case at the time such successor or successors by
merger, conversion or consolidation to the Trustee shall succeed
to the trusts created by this Indenture, any of the Securities
shall have been authenticated but not delivered, any such
successor to the Trustee may adopt the certificate of
authentication of any predecessor trustee, and deliver such
Securities so authenticated; and in case at that time any of the
Securities shall not have been authenticated, any successor to
the Trustee may authenticate such Securities either in the name
of any predecessor hereunder or in the name of the successor to
the Trustee; and in all such cases such certificates shall have
the full force which it is anywhere in the Securities or in this
Indenture provided that the certificate of the Trustee shall
have.
SECTION 6.10. Eligibility; Disqualification. The
Trustee shall at all times satisfy the requirements of TIA
ss. 310(a). The Trustee shall have a combined capital and
surplus of at least $50 million as set forth in its most recent
published annual report of condition. The Trustee shall comply
with TIA ss. 310(b).
SECTION 6.11. Preferential Collection of Claims
Against Company. The Trustee shall comply with TIA ss. 311(a),
excluding any creditor relationship listed in TIA ss. 311(b). A
Trustee who has resigned or been removed shall be subject to TIA
ss. 311(a) to the extent indicated.
SECTION 6.12. Trustee's Application for Instructions
from the Company. Any application by the Trustee for written
instructions from the Company, may at the option of the Trustee,
set forth in writing any action proposed to be taken or omitted
by the Trustee under this Indenture and the date on and/or after
which such action shall be taken or such omission shall be
effective. The Trustee shall not be liable for any action taken
by, or omission of, the Trustee in accordance with a proposal
included in such application on or after the date specified in
such application (which date shall not be less than three
Business Days after the date any officer of the Company actually
receives such application, unless any such officer shall have
consented in writing to any earlier date) unless prior to taking
any such action (or the effective date in the case of an
omission), the Trustee shall have received written instructions
in response to such application specifying the action to be taken
or omitted.
ARTICLE VII
Discharge of Indenture; Defeasance; Covenant Defeasance
SECTION 7.1. Discharge of Liability on Securities;
Defeasance; Covenant Defeasance. (a) When (i) the Company
delivers to the Trustee all Outstanding Securities (other than
Securities replaced pursuant to Section 2.9) for cancellation or
(ii) all Outstanding Securities have become due and payable at
Maturity and the Company irrevocably deposits with the Trustee
funds sufficient to pay at Maturity all such Outstanding
Securities (other than Securities replaced pursuant to
Section 2.9), including interest thereon to Maturity, and the
Company pays all other sums payable hereunder by the Company,
then this Indenture shall, subject to Section 7.1(c), cease to be
of further effect. The Trustee shall acknowledge satisfaction
and discharge of this Indenture on demand of the Company
(accompanied by an Officers' Certificate and an Opinion of
Counsel stating that all conditions precedent specified herein
relating to the satisfaction and discharge of this Indenture have
been complied with) and at the cost and expense of the Company.
(b) The Company may elect, at its option by resolution
of the Board of Directors at any time, to have either
Section 7.1(c) or Section 7.1(d) applied to the Outstanding
Securities upon compliance with the conditions set forth below in
this Article VII.
(c) Upon the Company's exercise of the option provided
in Section 7.1(b) to have this Section 7.1(c) applied to the
Outstanding Securities, the Company shall be deemed to have been
discharged from its obligations with respect to the Outstanding
Securities as provided in this Section 7.1(c) on and after the
date the conditions set forth in Section 7.2 are satisfied
(hereinafter called "Defeasance"). For this purpose, such
Defeasance means that the Company shall be deemed to have paid
and discharged the entire Indebtedness represented by the
Outstanding Securities and to have satisfied all its other
obligations under the Securities and this Indenture insofar as
the Securities are concerned (and the trustee, at the expense of
the Company, shall execute proper instruments acknowledging the
same), subject to the following which shall survive until
otherwise terminated or discharged hereunder: (1) the rights of
Holders to receive, solely from the trust fund described in
Section 7.2 and as more fully set forth in such Section, payments
in respect of the principal of and any premium and interest on
such Securities when payments are due, (2) the Company's
obligations with respect to such Securities under Sections 2.6,
2.9, 2.11, 3.9 and 3.10, (3) the rights, powers, trusts, duties
and immunities of the Trustee hereunder, (4) the Company's
obligations under Section 6.7 and (5) this Article VII. Subject
to compliance with this Article VII, the Company may exercise its
option provided in Section 7.1(b) to have this Section 7.1(c)
applied to the Outstanding Securities notwithstanding the prior
exercise of its option provided in Section 7.1(b) to have
Section 7.1(d) applied to the Outstanding Securities.
(d) Upon the Company's exercise of the option provided
in Section 7.1(b) to have this Section 7.1(d) applied to the
Outstanding Securities (1) the Company shall be released from its
obligations under Sections 3.3, 3.4, 3.5, 3.6, 3.11, 3.13 and
3.14, and Section 4.1 and (2) the occurrence of any event
specified in Section 5.1(3) (with respect to any of Sections 3.3,
3.4, 3.5, 3.6, 3.11, 3.13 and 3.14, and Section 4.1(2) and (3))
and 5.1(4) shall be deemed not to be or result in an Event of
Default, in each case with respect to the Outstanding Securities
as provided in this Section 7.1(d) on or after the date the
conditions set forth in Section 7.2 are satisfied (hereinafter
called "Covenant Defeasance"). For this purpose, such Covenant
Defeasance means that 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 specified Section (to the extent
so specified in the case of Section 5.1(3)), whether directly or
indirectly by reason of any reference elsewhere herein to any
such Section or by reason of any reference in any such Section to
any other provision herein or in any other document, but the
remainder of this Indenture and the Note shall be unaffected
thereby. Notwithstanding any Covenant Defeasance, the Company's
obligations under section 6.7 shall survive said Covenant
Defeasance with respect to any Securities deceased hereunder.
(e) Notwithstanding the provisions of Sections 7.1(a)
and (b), the Company's obligations in Sections 2.3, 2.4, 2.5,
2.6, 2.9, 6.7, 6.8, 7.4, 7.5 and 7.6 shall survive until the
Securities have been paid in full. Thereafter, the Company's
obligations in Sections 6.7, 7.4 and 7.5 shall survive.
SECTION 7.2. Conditions to Defeasance or Covenant
Defeasance. The Company may exercise its Defeasance option or
its Covenant Defeasance option with respect to the Outstanding
Securities only if:
(1) The Company shall irrevocably have deposited or
caused to be deposited with the Trustee (or another trustee that
satisfies the requirements contemplated by Section 6.10 and
agrees to comply with the provisions of this Article VII
applicable to it) as trust funds in trust for the purpose of
making the following payments, specifically pledged as security
for, and dedicated solely to, the benefit of the Securityholders
(a) money in an amount, or (b) U.S. Government Obligations that
through the scheduled payment of principal and interest in
respect thereof in accordance with their terms will provide, not
later than one day before the due date of any payment, money in
an amount, or (c) a combination thereof, in each case sufficient,
in the opinion of a nationally recognized firm of independent
public accountants expressed in a written certification thereof
delivered to the Trustee, to pay and discharge, and which shall
be applied by the Trustee (or any such other qualifying trustee)
to pay and discharge, the principal of and any premium and
interest on the Securities on the respective Stated Maturities,
in accordance with the terms of this Indenture and the
Securities. As used herein, "U.S. Government Obligation" means
(x) any security that is (i) a direct obligation of the United
States of America for the payment of which full faith and credit
of the United States of America is pledged or (ii) an obligation
of a Person controlled or supervised by or acting as an agent or
instrumentality of the United States of America the payment of
which is unconditionally guaranteed as a full faith and credit
obligation by the United States of America, which, in either
case (i) or (ii), is not callable or redeemable at the option of
the issuer thereof, and (y) any depositary receipt issued by a
bank (as defined in Section 3(a)(2) of the Securities Act) as
custodian with respect to any U.S. Government Obligation
specified in clause (x) and held by such custodian for the
account of the holder of such depositary receipt, or with respect
to any specific payment of principal of or interest on any such
U.S. Government Obligation, 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 U.S.
Government Obligation or the specific payment of principal or
interest evidenced by such depositary receipt.
(2) In the case of an election under Section 7.1(c),
the Company shall have delivered to the Trustee an Opinion of
Counsel stating that (A) the Company has received from, or there
has been published by, the Internal Revenue Service a ruling or
(B) since the date first set forth hereinabove, there has been a
change in the applicable Federal income tax law, in either
case (A) or (B) to the effect that, and based thereon such
opinion shall confirm that, the Holders of the Outstanding
Securities, will not recognize gain or loss for Federal income
tax purposes as a result of the deposit, Defeasance and discharge
to be effected with respect to the Securities, and will be
subject to Federal income tax on the same amount, in the same
manner and at the same times as would be the case if such
deposit, Defeasance and discharge were not to occur.
(3) In the case of an election under Section 7.1(d),
the Company shall have delivered to the Trustee an Opinion of
Counsel to the effect that the Holders of the Outstanding
Securities, will not recognize gain or loss for Federal income
tax purposes as a result of the deposit and Covenant Defeasance
to be effected and will be subject to Federal income tax on the
same amount, in the same manner and at the same times as would be
the case if such deposit and Covenant Defeasance were not to
occur.
(4) The Company shall have delivered to the Trustee an
Officers' Certificate to the effect that the Securities, if then
listed on any securities exchange, will not be delisted as a
result of such deposit.
(5) No Event of Default or event that (after notice or
lapse of time or both) would become an Event of Default shall
have occurred and be continuing at the time of such deposit or,
with regard to any Event of Default or any such event specified
in Sections 5.1(5) and (6), at any time on or prior to the
123rd day after the date of such deposit (it being understood
that this condition shall not be deemed satisfied until after
such 123rd day).
(6) Such Defeasance or Covenant Defeasance shall not
cause the Trustee to have a conflicting interest within the
meaning of the Trust Indenture Act.
(7) Such Defeasance or Covenant Defeasance shall not
result in a breach or violation of, or constitute a default
under, any other agreement or instrument to which the Company is
party or by which it is bound.
(8) The Company shall have delivered to the Trustee an
Officers' Certificate and an Opinion of Counsel, each stating
that all conditions precedent with respect to such Defeasance or
Covenant Defeasance have been complied with and the other
statements listed under Section 10.5.
(9) 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, as amended, unless such trust shall be qualified
under such Act or exempt from regulation thereunder.
SECTION 7.3. Application of Trust Money. Subject to
the provisions of the last paragraph of Section 3.10, all money
and U.S. Government Obligations (including the proceeds thereof)
deposited with the Trustee or other qualifying trustee (solely
for purposes of this Section and Section 7.6, the Trustee and any
such other trustee are referred to collectively as the "Trustee")
pursuant to Section 7.2 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 on 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 and any premium and interest, but money so held in
trust need not be segregated from other funds except to the
extent required by law.
SECTION 7.4. Repayment to Company. Anything herein to
the contrary notwithstanding, the Trustee shall deliver or pay to
the Company from time to time upon Company Order any money or
U.S. Government Obligations held by it as provided in this
Article VII which, in the opinion of a nationally recognized firm
of independent public accountants expressed in a written
certification thereof delivered to the Trustee, are in excess of
the amount thereof which would then be required to be deposited
to effect Defeasance or Covenant Defeasance, provided that the
Trustee shall not be required to liquidate any U.S. Government
Obligations in order to comply with the provisions of this
paragraph.
Subject to any applicable abandoned property law, the
Trustee and the Paying Agent shall pay to the Company Order any
money held by them for the payment of principal of or interest on
the Securities that remains unclaimed for two years, and,
thereafter, Securityholders entitled to the money must look to
the Company for payment as unsecured general creditors.
SECTION 7.5. Indemnity for U.S. Government
Obligations. The Company shall pay and shall indemnify the
Trustee against any tax, fee or other charge imposed on or
assessed against deposited U.S. Government Obligations or the
principal and interest received on such U.S. Government
Obligations.
SECTION 7.6. Reinstatement. If the Trustee or Paying
Agent is unable to apply any money or U.S. Government Obligations
in accordance with this Article VII by reason of any legal
proceeding or by reason of any order or judgment of any court or
governmental authority enjoining, restraining or otherwise
prohibiting such application, the obligations of the Company
under this Indenture and the Securities, shall be revived and
reinstated as though no such deposit had occurred pursuant to
this Article VII until such time as the Trustee or Paying Agent
is permitted to apply all such money or U.S. Government
Obligations in accordance with this Article VII; provided,
however, that, if the Company has made any payment of principal
of or any premium or interest on any Securities, following the
reinstatement of its obligations, the Company shall be subrogated
to the rights of the Holders of such Securities to receive such
payment from the money or U.S. Government Obligations held by the
Trustee or Paying Agent.
ARTICLE VIII
Amendments
SECTION 8.1. Without Consent of Holders. The Company
and the Trustee may amend this Indenture or the Securities
without notice to or consent of any Securityholder:
(1) to cure any ambiguity, omission, defect or
inconsistency;
(2) to comply with Article IV in respect of the
assumption by a successor Person to the Company of an obligation
of the Company under this Indenture;
(3) to provide for uncertificated Securities in
addition to or in place of certificated Securities; provided,
however, that the uncertificated Securities are issued in
registered form for purposes of Section 163(f) of the Code or in
a manner such that the uncertificated Securities are described in
Section 163(f)(2)(B) of the Code;
(4) to add to the covenants of the Company for the
benefit of the Holders or to surrender any right or power herein
conferred upon the Company;
(5) to comply with any requirements of the SEC in
connection with qualifying this Indenture under the TIA;
(6) to comply with Sections 6.8 and 6.9 in respect of
the assumption by a successor Trustee of an obligation of the
Trustee under this Indenture; or
(7) to make any change that does not adversely affect
the rights of any Securityholder.
After an amendment under this Section becomes
effective, the Company shall mail to Securityholders a notice
briefly describing such amendment. The failure to give such
notice to all Securityholders, or any defect therein, shall not
impair or affect the validity of an amendment under this Section.
SECTION 8.2. With Consent of Holders. With the
written consent of the Holders of not less than a majority in
principal amount of the Outstanding Securities affected thereby,
the Company and the Trustee may amend this Indenture or modify in
any manner the rights of the Securityholders under this
Indenture. However, without the consent of each Securityholder
affected, an amendment may not:
(a) change the Stated Maturity of the principal of, or
any installment of principal of or any premium or interest on,
any Security, reduce the principal amount thereof or the interest
or any premium thereon, change the method of computing the amount
of principal thereof or interest thereon on any date, change any
place of payment where, or the coin or currency in which, any
Security or any premium or interest thereon is payable or impair
the right to institute suit for the enforcement of any such
payment on or after the Stated Maturity thereof (or, in the case
of redemption or repayment, on or after the redemption date or
the repayment date, as the case may be);
(b) reduce the percentage in principal amount of the
Outstanding Securities, the consent of whose Holders is required
for any such modification 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; or
(c) modify any of the provisions of this Section,
Section 3.6 or Section 5.4, except to increase any such
percentage or to provide that certain other provisions of this
Indenture cannot be modified or waived without the consent of the
Holder of each Outstanding Security affected thereby.
It shall not be necessary for the consent of the
Holders under this Section to approve the particular form of any
proposed amendment, but it shall be sufficient if such consent
approves the substance thereof.
After an amendment under this Section becomes
effective, the Company shall mail to Securityholders a notice
briefly describing such amendment. The failure to give such
notice to all Securityholders, or any defect therein, shall not
impair or affect the validity of an amendment under this Section.
SECTION 8.3. Compliance with Trust Indenture Act.
Every amendment to this Indenture or the Securities shall comply
with the TIA as then in effect.
SECTION 8.4. Revocation and Effect of Consents and
Waivers. A consent to an amendment or a waiver by a
Securityholder shall bind the Holder and every subsequent Holder
of that Security or portion of the Security that evidences the
same debt as the consenting Holder's Security, even if notation
of the consent or waiver is not made on the Security. However,
any such Holder or subsequent Holder may revoke the consent or
waiver as to such Holder's Security or portion of the Security if
the Trustee receives the notice of revocation before the date the
amendment or waiver becomes effective. After an amendment or
waiver becomes effective, it shall bind every Securityholder. An
amendment or waiver made pursuant to Section 8.2 shall become
effective upon receipt by the Trustee of the requisite number of
written consents.
The Company may, but shall not be obligated to, fix a
record date for the purpose of determining the Securityholders
entitled to give their consent or take any other action described
above or required or permitted to be taken pursuant to this
Indenture. If a record date is fixed, then notwithstanding the
immediately preceding paragraph, those Persons who were
Securityholders at such record date (or their duly designated
proxies), and only those Persons, shall be entitled to give such
consent or to revoke any consent previously given or to take any
such action, whether or not such Persons continue to be Holders
after such record date. No such consent shall become valid or
effective more than 120 days after such record date.
SECTION 8.5. Notation on or Exchange of Securities.
If an amendment changes the terms of a Security, the Trustee may
require the Holder of the Security to deliver it to the Trustee.
The Trustee may place an appropriate notation on the Security
regarding the changed terms and return it to the Holder.
Alternatively, if the Company or the Trustee so determines, the
Company in exchange for the Security shall issue and the Trustee
shall authenticate a new Security that reflects the changed
terms. Failure to make the appropriate notation or to issue a
new Security shall not affect the validity of such amendment.
SECTION 8.6. Trustee To Sign Amendments. The Trustee
shall sign any amendment authorized pursuant to this Article VIII
if the amendment does not adversely affect the rights, duties,
liabilities or immunities of the Trustee. If it does, the
Trustee may but need not sign it. In signing such amendment the
Trustee shall be entitled to receive indemnity reasonably
satisfactory to it and to receive, and (subject to Section 6.1)
shall be fully protected in relying upon, an Officers'
Certificate and an Opinion of Counsel stating that such amendment
is authorized or permitted by this Indenture.
ARTICLE IX
Redemption of Securities
SECTION 9.1. Redemption. The Securities may or shall,
as the case may be, be redeemed, as a whole or from time to time
in part, subject to the conditions and at the Redemption Prices
specified in the form of Securities, together with accrued
interest to the Redemption Date.
SECTION 9.2. Applicability of Article. Redemption of
Securities at the election of the Company, as permitted by any
provision of this Indenture, shall be made in accordance with
such provision and this Article.
SECTION 9.3. Election to Redeem; Notice to Trustee.
The election of the Company to redeem any Securities pursuant to
Section 9.1 shall be evidenced by a resolution of the Board of
Directors. In case of any partial redemption at the election of
the Company, 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 of the principal amount of Securities to be
redeemed and shall deliver to the Trustee such documentation and
records as shall enable the Trustee to select the Securities to
be redeemed pursuant to Section 9.4.
SECTION 9.4. Selection by Trustee of Securities to be
Redeemed. If less than all the Securities are to be redeemed,
selection of such Securities for redemption shall be made by the
Trustee not more than 60 days prior to the Redemption Date, from
the Securities Outstanding not previously called for redemption,
in compliance with the requirements of the principal national
securities exchange, if any, on which such Securities are listed,
or, if such Securities are not so listed, by lot or by such other
method as the Trustee shall deem fair and appropriate (and in
such manner as complies with applicable legal requirements) and
which may provide for the selection for redemption of portions of
the principal of Securities; provided, however, that no
Securities of less than $1,000 shall be redeemed in part.
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.
For all purposes of this Indenture, unless the context
otherwise requires, all provisions relating to redemption of
Securities shall relate, in the case of any Security redeemed or
to be redeemed only in part, to the portion of the principal
amount of such Security which has been or is to be redeemed.
SECTION 9.5. Notice of Redemption. Notice of
redemption shall be given in the manner provided for in
Section 10.2 at least 30 but not more than 60 days prior to the
Redemption Date, to each Holder of Securities to be redeemed at
such Holder's registered address. The Trustee shall give notice
of redemption in the Company's name and at the Company's expense;
provided, however, that the Company shall deliver to the Trustee,
at least 30 days prior to the Redemption Date, an Officers'
Certificate requesting that the Trustee give such notice and
setting forth the information to be stated in such notice as
provided in the following items.
All notices of redemption shall fully identify the
Securities and shall state:
(1) the Redemption Date,
(2) the Redemption Price and the amount of accrued
interest to the Redemption Date payable as provided in
Section 9.7, if any,
(3) if less than all Securities Outstanding are to be
redeemed, the identification of the particular Securities (or
portion thereof) to be redeemed, as well as the aggregate
principal amount of Securities to be redeemed and the aggregate
principal amount of Securities to be Outstanding after such
partial redemption,
(4) 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,
(5) that on the Redemption Date the Redemption Price
(and accrued interest, if any, to the Redemption Date payable as
provided in Section 9.7) will become due and payable upon each
such Security, or the portion thereof, to be redeemed, and,
unless the Company defaults in making the redemption payment,
that interest on Securities called for redemption (or the portion
thereof) will cease to accrue on and after said date,
(6) the place or places where such Securities are to be
surrendered for payment of the Redemption Price and accrued
interest, if any,
(7) the name and address of the Paying Agent,
(8) that Securities called for redemption must be
surrendered to the Paying Agent to collect the Redemption Price,
and
(9) the CUSIP number, and that no representation is
made as to the accuracy or correctness of the CUSIP number, if
any, listed in such notice or printed on the Securities.
SECTION 9.6. Deposit of Redemption Price. At or prior
to 10:00 a.m., New York City time on 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 3.8) an amount of money
sufficient to pay the Redemption Price of, and accrued interest
on, all the Securities which are to be redeemed on that date.
SECTION 9.7. 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
(together with accrued interest, if any, to the Redemption Date),
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, if any, 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 regular record date or Special Record Date, as the case
may be, according to their terms and the provisions of
Section 2.12.
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 borne by the Securities.
SECTION 9.8. Securities Redeemed in Part. Any
Security which is to be redeemed only in part (pursuant to the
provisions of this Article) shall be surrendered at the office or
agency of the Company maintained for such purpose pursuant to
Section 3.7 (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 such Holder's attorney duly authorized in
writing), and the Company shall execute, and the Trustee shall
authenticate and deliver to the Holder of such Security without
service charge, a new Security or Securities, of any authorized
denomination as requested by such Holder, in an aggregate
principal amount equal to and in exchange for the unredeemed
portion of the principal of the Security so surrendered; provided
that each such new Security will be in a principal amount of
$1,000 or integral multiple thereof.
ARTICLE X
Miscellaneous
SECTION 10.1. 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.
SECTION 10.2. Notices. Any notice or communication shall
be in writing and delivered in person or mailed by first-class
mail addressed as follows:
if to the Company:
CK Witco Corporation
One American Lane
Greenwich, CT 06831-2559
Attn: General Counsel
if to the Trustee:
Citibank, N.A.
111 Wall Street, 5th Floor
New York, N.Y. 10005
Attn: Global Agency & Trust Services
The Company or the Trustee by notice to the other may
designate additional or different addresses for subsequent
notices or communications.
Any notice or communication mailed to a Securityholder
shall be mailed to the Securityholder at the Securityholder's
address as it appears on the registration books of the Registrar
and shall be sufficiently given if so mailed within the time
prescribed.
Failure to mail a notice or communication to a
Securityholder or any defect in it shall not 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.
SECTION 10.3. Communication by Holders with other
Holders. Securityholders may communicate pursuant to TIA
ss. 312(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 ss. 312(c).
SECTION 10.4. 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:
(1) 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
(2) 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.
SECTION 10.5. 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:
(1) a statement that the individual making such
certificate or opinion has read such covenant or condition;
(2) a brief statement as to the nature and scope of the
examination or investigation upon which the statements or
opinions contained in such certificate or opinion are based;
(3) a statement that, in the opinion of such
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
(4) a statement as to whether or not, in the opinion of
such individual, such covenant or condition has been complied
with.
SECTION 10.6. 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 10.7. Legal Holidays. If a payment date is
not a Business Day, payment shall be made on the next succeeding
day that is a Business Day, and no interest shall accrue for the
intervening period. If a regular record date is not a Business
Day, the record date shall not be affected.
SECTION 10.8. Governing Law. This Indenture and the
Securities shall be governed by, and construed in accordance
with, the laws of the State of New York but without giving effect
to applicable principles of conflicts of law to the extent that
the application of the laws of another jurisdiction would be
required thereby.
SECTION 10.9. No Recourse Against Others. An
incorporator, director, officer, employee, stockholder or
controlling person, as such, of the Company shall not have any
liability for any obligations of the Company under the Securities
or this Indenture 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 10.10. Successors. All agreements of the
Company in this Indenture and the Securities shall bind their
respective successors. All agreements of the Trustee in this
Indenture shall bind its successors.
SECTION 10.11. 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 10.12. Variable Provisions. The Company
initially appoints the Trustee as Paying Agent and Registrar and
custodian with respect to any Global Securities.
SECTION 10.13. 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 and the
Trustee) incurred in connection therewith, including, but not
limited to, costs and expenses of qualification of the 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 10.14. 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.
IN WITNESS WHEREOF, the parties have caused this
Indenture to be duly executed as of the date first written above.
CK WITCO CORPORATION
By:
Name:
Title:
CITIBANK, N.A.
By:
Name:
Title: