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EXHIBIT 4.08
CONFORMED COPY
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XXXXXX XXXXXXXX MATERIALS, INC.
AS ISSUER
FIRST UNION NATIONAL BANK
AS TRUSTEE
INDENTURE
DATED AS OF DECEMBER 7, 1998
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XXXXXX XXXXXXXX MATERIALS, INC.
CERTAIN SECTIONS OF THIS INDENTURE RELATING TO
SECTIONS 310 THROUGH 318, INCLUSIVE, OF THE
TRUST INDENTURE ACT OF 1939:
Trust Indenture
Act Section Indenture Section
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Section 310(a)(1)..............................................................................................7.10
(a)(2)................................................................................................7.10
(a)(3)......................................................................................Not applicable
(a)(4)......................................................................................Not applicable
(b)....................................................................................................7.8
Section 311(a).................................................................................................7.11
(b)...................................................................................................7.11
Section 312(a)..................................................................................................2.6
(b)...................................................................................................10.3
(c)...................................................................................................10.3
Section 313(a)..................................................................................................7.6
(b)....................................................................................................7.6
(c)....................................................................................................7.6
(d)....................................................................................................7.6
Section 314(a).............................................................................................4.6, 4.7
(a)(4)............................................................................................4.6, 4.7
(b).........................................................................................Not applicable
(c)(1)..........................................................................................10.4, 10.5
(c)(2)..........................................................................................10.4, 10.5
(c)(3)......................................................................................Not applicable
(d).........................................................................................Not applicable
(e)...................................................................................................10.5
Section 315(a).............................................................................................7.1, 7.2
(b)..............................................................................................7.5, 10.1
(c)....................................................................................................7.1
(d)....................................................................................................7.1
(e)...................................................................................................6.11
Section 316(a)..................................................................................................6.5
(a)(1).................................................................................................6.5
(a)(1)(B)..............................................................................................6.4
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Trust Indenture
Act Section Indenture Section
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(a)(2)......................................................................................Not applicable
(b)...............................................................................................6.6, 6.7
(c)..................................................................................................10.16
Section 317(a)(1)...............................................................................................6.8
(a)(2).................................................................................................6.9
(b)....................................................................................................2.5
Section 3.18(a)................................................................................................10.1
Exhibit A - Form of Security....................................................................................A-1
Exhibit B - Form of Certificate To Be Delivered in Connection with
Transfers or Exchanges of Original Securities..........................................................B-1
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NOTE: This reconciliation and tie shall not, for any purpose, be deemed to be
a part of the Indenture.
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TABLE OF CONTENTS
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PAGE
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ARTICLE 1.
DEFINITIONS AND INCORPORATION BY REFERENCE
Section 1.1 Definitions...........................................................................................1
Section 1.2 Other Definitions.....................................................................................5
Section 1.3 Incorporation by Reference of TIA.....................................................................5
Section 1.4 Rules of Construction.................................................................................6
ARTICLE 2.
THE SECURITIES
Section 2.1 Form and Dating.......................................................................................6
Section 2.2 Execution and Authentication..........................................................................9
Section 2.3 Title, Amount and Terms of Securities................................................................11
Section 2.4 Registrar and Paying Agent...........................................................................13
Section 2.5 Paying Agent to Hold Money in Trust..................................................................13
Section 2.6 Securityholder Lists.................................................................................13
Section 2.7 Transfer and Exchange................................................................................14
Section 2.8 Book-Entry Provisions for U.S. Global Note and Offshore Global Note..................................15
Section 2.9 Special Transfer Provisions..........................................................................17
Section 2.10 Replacement Securities..............................................................................19
Section 2.11 Outstanding Securities..............................................................................20
Section 2.12 Temporary Securities................................................................................20
Section 2.13 Cancellation........................................................................................20
Section 2.14 Defaulted Interest..................................................................................20
Section 2.15 Payment in Currencies...............................................................................21
Section 2.16 CUSIP Numbers.......................................................................................23
ARTICLE 3.
REDEMPTION
Section 3.1 Applicability of this Article........................................................................23
Section 3.2 Notices to Trustee...................................................................................23
Section 3.3 Selection of Securities to be Redeemed...............................................................24
Section 3.4 Notice of Redemption.................................................................................24
Section 3.5 Effect of Notice of Redemption.......................................................................25
Section 3.6 Deposit of Redemption Price..........................................................................25
Section 3.7 Securities Redeemed in Part..........................................................................25
ARTICLE 4.
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COVENANTS
Section 4.1 Certain Definitions..................................................................................25
Section 4.2 Payment of Securities................................................................................27
Section 4.3 Limitation on Liens..................................................................................27
Section 4.4 Limitation on Sale-Leaseback Transactions............................................................28
Section 4.5 No Lien Created, etc.................................................................................29
Section 4.6 Compliance Certificate...............................................................................29
Section 4.7 SEC Reports..........................................................................................29
Section 4.8 Rule 144A Information Requirement....................................................................30
ARTICLE 5.
SUCCESSOR CORPORATION
Section 5.1 When the Corporation May Merge, etc..................................................................30
Section 5.2 When Securities Must Be Secured......................................................................30
ARTICLE 6.
DEFAULTS AND REMEDIES
Section 6.1 Events of Default....................................................................................31
Section 6.2 Acceleration.........................................................................................32
Section 6.3 Other Remedies.......................................................................................32
Section 6.4 Waiver of Past Defaults..............................................................................32
Section 6.5 Control by Majority..................................................................................33
Section 6.6 Limitation on Suits..................................................................................33
Section 6.7 Rights of Holders to Receive Payment.................................................................33
Section 6.8 Collection Suit by Trustee...........................................................................33
Section 6.9 Trustee May File Proofs of Claim.....................................................................33
Section 6.10 Priorities..........................................................................................34
Section 6.11 Undertaking for Costs...............................................................................34
ARTICLE 7.
TRUSTEE
Section 7.1 Duties of Trustee....................................................................................34
Section 7.2 Rights of Trustee....................................................................................35
Section 7.3 Individual Rights of Trustee, etc....................................................................35
Section 7.4 Trustee's Disclaimer.................................................................................36
Section 7.5 Notice of Defaults...................................................................................36
Section 7.6 Reports by Trustee to Holders........................................................................36
Section 7.7 Compensation and Indemnity...........................................................................36
Section 7.8 Replacement of Trustee...............................................................................36
Section 7.9 Successor Trustee by Merger, etc.....................................................................38
Section 7.10 Eligibility; Disqualification.......................................................................38
Section 7.11 Preferential Collection of Claims Against Corporation...............................................38
ARTICLE 8.
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SATISFACTION, DISCHARGE AND DEFEASANCE
Section 8.1 Satisfaction and Discharge Under Limited Circumstances...............................................38
Section 8.2 Satisfaction and Discharge of Indenture..............................................................38
Section 8.3 Defeasance of Certain Obligations....................................................................40
Section 8.4 Application of Trust Money...........................................................................41
Section 8.5 Repayment to Corporation.............................................................................41
ARTICLE 9.
AMENDMENTS, SUPPLEMENTS AND WAIVERS
Section 9.1 Without Consent of Holders...........................................................................41
Section 9.2 With Consent of Holders..............................................................................42
Section 9.3 Compliance with Trust Indenture Act of 1939..........................................................42
Section 9.4 Revocation and Effect of Consents....................................................................42
Section 9.5 Notation on or Exchange of Securities................................................................43
Section 9.6 Trustee to Sign Amendments, etc......................................................................43
ARTICLE 10.
MISCELLANEOUS
Section 10.1 TIA Controls........................................................................................43
Section 10.2 Notices.............................................................................................43
Section 10.3 Communication by Holders with Other Holders.........................................................44
Section 10.4 Certificate and Opinion as to Conditions Precedent..................................................44
Section 10.5 Statements Required in Certificate or Opinion.......................................................44
Section 10.6 When Treasury Securities Disregarded................................................................45
Section 10.7 Rules by Trustee, Paying Agent, Registrar...........................................................45
Section 10.8 Legal Holidays......................................................................................45
Section 10.9 Governing Law.......................................................................................45
Section 10.10 No Adverse Interpretation of Other Agreements......................................................45
Section 10.11 No Recourse Against Others.........................................................................45
Section 10.12 Securities in a Foreign Currency...................................................................45
Section 10.13 Judgment Currency..................................................................................46
Section 10.14 Successors.........................................................................................46
Section 10.15 Duplicate Originals................................................................................46
Section 10.16 Acts of Holders; Record Dates......................................................................47
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NOTE: This Table of Contents shall not, for any purpose, be deemed to be a
part of the Indenture.
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INDENTURE dated as of December 7, 1998, between XXXXXX XXXXXXXX
MATERIALS, INC., a North Carolina corporation (the "Corporation"), and FIRST
UNION NATIONAL BANK, a national banking association (the "Trustee").
Each party agrees as follows for the benefit of the other party and, as
to each series of Securities, for the equal and ratable benefit of the Holders
of that series of the Corporation's Securities issued pursuant to this
Indenture:
RECITALS OF THE CORPORATION
The Corporation has duly authorized the creation of an issue of up to
$200,000,000 aggregate principal amount of (A) its 5.875% Notes due December 1,
2008, and (B) its 5.875% Notes due December 1, 2008 to be issued in exchange
therefor, of substantially the tenor and amount hereinafter set forth, and to
provide therefor the Corporation has duly authorized the execution and delivery
of this Indenture.
ARTICLE 1.
DEFINITIONS AND INCORPORATION BY REFERENCE
Section 1.1 Definitions.
"Agent" means any Registrar, Paying Agent or co-registrar.
"Board of Directors" means the Board of Directors, or the Executive
Committee or the Finance Committee of the Board of Directors, of the
Corporation.
"Board Resolution" means a resolution of the Board of Directors or of a
committee or person to which or to whom the Board of Directors has properly
delegated the appropriate authority, a copy of which has been certified by the
Secretary or an Assistant Secretary of the Corporation, to have been duly
adopted by the Board of Directors and to be in full force and effect on the date
of such certification and delivered to the Trustee.
"Components" means the currency amounts that were components of the ECU
on the ECU Conversion Date. If after the ECU Conversion Date the official unit
of any component currency is altered by way of combination or subdivision, the
number of units of that currency shall be divided or multiplied in the same
proportion to calculate the Component. If after the ECU Conversion Date two or
more component currencies are consolidated into a single currency, the amounts
of those currencies as Components shall be replaced by an amount of that single
currency equal to the sum of the amounts of those consolidated component
currencies expressed in such single currency, and that amount shall thereafter
be a Component. If after the ECU Conversion Date any component currency is
divided into two or more currencies, the amount of that currency as a Component
shall be replaced by amounts of those two or more currencies, each of which
shall be equal to the amount of that former component currency divided by the
number
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of currencies into which that component currency was divided, and those amounts
shall thereafter be Components.
"Corporation" means the party named as such in this Indenture until a
successor replaces it and thereafter means the successor.
"Default" means any event which is, or after notice or passage of time
or both would be, an Event of Default.
"Depositary" means, with respect to the Securities of any series
issuable or issued in whole or in part in the form of one or more Global
Securities, the party designated as Depositary by the Corporation pursuant to
Section 2.3 until a successor Depositary shall have become such pursuant to the
applicable provisions hereof, and thereafter "Depositary" shall mean or include
each party who is then a Depositary hereunder, and if at any time there is more
than one such party, "Depositary" as used in respect of the Securities on any
such series shall mean the Depositary with respect to the Securities of that
series.
"Discounted Security" means any Security which provides for an amount
(excluding any amounts attributable to accrued but unpaid interest) less than
its principal amount to be due and payable upon a declaration of acceleration of
the maturity of the Security pursuant to Section 6.2.
"ECU" means the European Currency Unit.
"Exchange Act" means the Securities Exchange Act of 1934, as it may be
amended from time to time.
"Exchange Securities" means the 5.875% Notes Due December 1, 2008 to be
issued by the Corporation, and containing terms identical to those of the
Original Securities (except that such Exchange Securities (i) shall have an
exchange offer registered under the Securities Act and (ii) shall have an
interest rate of 5.875% per annum, without provision for adjustment as provided
in paragraph 1 on the reverse of the Original Securities), that are issued and
exchanged for the Original Securities pursuant to the Registration Rights
Agreement and this Indenture or any indenture or indentures supplemental hereto.
"Foreign Currency" means a currency issued by the government of any
country other than the United States of America.
"Global Security" means a Security evidencing all or a part of a series
of Securities, issued to the Depositary for such series in accordance with
Section 2.1, and bearing the legend prescribed in Section 2.1.
"Holder" or "Securityholder" means the person in whose name a Security
is registered on the Registrar's books.
"Indenture" means this Indenture as amended or supplemented from time
to time.
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"Initial Purchasers" means Xxxxxxx, Sachs & Co., X.X. Xxxxxx Securities
Inc. and Xxxxxx Xxxxxxx & Co. Incorporated.
"Institutional Accredited Investor" means an institution that is an
"accredited investor" as that term is defined in Rule 501(a)(1), (2), (3), or
(7) under the Securities Act.
"Issue Date" means the date on which the Original Securities are
originally issued under this Indenture.
"Market Exchange Rate" for any currency means, as appropriate, the noon
U.S. dollar buying rate or selling rate for that currency for cable transfers
quoted in the City of New York on the applicable date as certified for customs
purposes by the Federal Reserve Bank of New York. If for any reason such rates
are not available for one or more currencies for which a Market Exchange Rate is
required, the Trustee shall use: (i) the quotation of the Federal Reserve Bank
of New York as of the most recent available date, (ii) quotations from one or
more major banks in the City of New York or in the country of issue of the
currency in question, or (iii) such other quotations as the Trustee shall deem
appropriate. Unless otherwise specified by the Trustee, if there is more than
one market for dealing in any currency by reason of foreign exchange regulations
or otherwise, the market to be used is that in which a nonresident issuer of
securities designated in that currency would purchase that currency in order to
make payments on those securities. All decisions and determinations of the
Trustee regarding the Market Exchange Rate shall be in its sole discretion and
shall, in the absence of manifest error, be conclusive for all purposes and
irrevocably binding upon the Corporation and all holders.
"Officer" means the Chairman of the Board, the Chief Executive Officer,
the President, any Vice President, the Treasurer or the Secretary of the
Corporation.
"Officers' Certificate" means a certificate signed by two Officers or
by an Officer and an Assistant Treasurer or Assistant Secretary of the
Corporation.
"Official Exchange Rate" means on the applicable date the exchange rate
between ECU and any currency as reported by the Commission of the European
Communities (currently based on the rates in effect at 2:30 P.M., Brussels time,
on the relevant exchange markets) or if that exchange rate ceases to be so
reported, then the exchange rate determined by the Trustee using, in its sole
discretion, quotations from one or more major banks in the City of New York or
such other quotations as the Trustee shall deem appropriate.
"Opinion of Counsel" means a written opinion from legal counsel who is
acceptable to the Trustee. The counsel may be an employee of or counsel to the
Corporation or the Trustee.
"Original Securities" means the 5.875% Notes Due December 1, 2008
issued by the Corporation under this Indenture or pursuant to any indenture of
indentures supplemental hereto.
"principal" of a Security means the principal of the Security plus,
when appropriate, the premium, if any, on the Security.
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"Private Placement Legend" means the legend set forth on the Original
Securities in the form set forth in Section 2.1(d).
"QIB" means a "qualified institutional buyer" as that term is defined
in Rule 144A.
"Registration Rights Agreement" means the Exchange and Registration
Rights Agreement, dated as of December 2, 1998, by and among the Corporation,
Xxxxxxx Xxxxx & Co., X.X. Xxxxxx Securities Inc., and Xxxxxx Xxxxxxx & Co.
Incorporated.
"Registration Statement" means the Registration Statement as defined
and described in the Registration Rights Agreement.
"SEC" means the Securities and Exchange Commission.
"Securities" means the Original Securities and the Exchange Securities
and any other securities issued pursuant to this Indenture from time to time, as
such Indenture may be amended or supplemented from time to time. For purposes of
this Indenture and any indenture or indentures supplemental hereto, all Original
Securities and Exchange Securities shall be treated as a single class and shall
vote together as one series of Securities under this Indenture.
"Securities Act" means the Securities Act of 1933, as it may be amended
from time to time.
"Series" when used with respect to the Securities means all Securities
bearing the same title and authorized by the same Board Resolution.
"TIA" means the Trust Indenture Act of 1939, as in effect (unless
otherwise stated herein) on the date of this Indenture.
"Trustee" means the party named as such in this Indenture until a
successor replaces it and thereafter means the successor. The term "Trustee"
includes any additional Trustee appointed pursuant to Section 2.3 or Section 7.8
but, if at any time there is more than one Trustee, the term "Trustee" as used
with respect to Securities of any series shall mean the Trustee with respect to
Securities of that series.
"Trust Officer" means a Vice President or any other officer or
assistant officer of the Trustee assigned by the Trustee to administer its
corporate trust matters.
"Uniform Commercial Code" means the North Carolina Uniform Commercial
Code.
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Section 1.2 Other Definitions.
Defined in
Term Section
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"Act"................................................................................................10.16
"Agent members".....................................................................................2.8(a)
"Attributable Debt"....................................................................................4.1
"Bankruptcy Law".......................................................................................6.1
"Capital Expenditures".................................................................................4.1
"Consolidated Net Tangible Assets".....................................................................4.1
"Custodian"............................................................................................6.1
"Debt".................................................................................................4.1
"ECU Conversion Date".................................................................................2.13
"Event of Default".....................................................................................6.1
"Exchange Offer".................................................................................Exhibit A
"Global Note".......................................................................................2.1(c)
"Judgment Date"......................................................................................10.13
"Legal Holiday".......................................................................................10.8
"Lien".................................................................................................4.1
"Long-Term Debt".......................................................................................4.1
"Paying Agent".........................................................................................2.4
"Physical Notes"....................................................................................2.1(c)
"Principal Property"...................................................................................4.1
"Registrar"............................................................................................2.4
"Restricted Property"..................................................................................4.1
"Restricted Subsidiary"................................................................................4.1
"Rule 144"................................................................................................
"Rule 144A"...............................................................................................
"Sale-Leaseback Transaction"...........................................................................4.1
"Subsidiary"...........................................................................................4.1
"Substitute Date"....................................................................................10.13
"United States"........................................................................................4.1
"U.S. Government Obligations...........................................................................8.2
"Voting Stock".........................................................................................4.1
Section 1.3 Incorporation by Reference of TIA. Whenever this Indenture
refers to a provision of the TIA, the provision is incorporated by reference in
and made a part of this Indenture. The following TIA terms used in this
Indenture have the following meanings:
"Commission" means the SEC.
"indenture securities" means the Securities.
"indenture security holder" means a Securityholder.
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"indenture to be qualified" means this Indenture.
"indenture trustee" or "institutional trustee" means the Trustee.
"obligor" on the indenture securities means the Corporation.
All other TIA terms used in this Indenture that are defined by the TIA,
defined by TIA reference to another statute or defined by SEC rule have the
meanings assigned to them.
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 generally accepted
accounting principles;
(3) "or" is not exclusive;
(4) words in the singular include the plural, and in the
plural include the singular;
(5) any gender used in this Indenture shall be deemed to
include the neuter, masculine or feminine gender; and
(6) provisions apply to successive events and
transactions.
ARTICLE 2.
THE SECURITIES
Section 2.1 Form and Dating.
(a) The Securities shall be issued substantially in the form or
forms (including global form) as shall be established by or pursuant to a Board
Resolution or Resolutions or any supplemental indenture, in each case with such
appropriate insertions, omissions, substitutions or other variations as are
required or permitted by this Indenture. The Securities may have notations,
legends or endorsements required by law, stock exchange rule or usage. Each
Security shall be dated the date of its authentication.
Notwithstanding the foregoing, if any Security of a series is issuable
in the form of a Global Security or Securities, each such Global Security may
provide that it shall represent the aggregate amount of Securities outstanding
under the series from time to time endorsed thereon and also may provide that
the aggregate amount of Securities outstanding under the series represented
thereby may from time to time be reduced to reflect exchanges. Any endorsement
of a Global Security to reflect the amount of Securities outstanding under the
series represented thereby shall be made by the Trustee in accordance with the
instructions of the Corporation and in
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such manner as shall be specified on such Global Security. Any instructions by
the Corporation with respect to a Global Security, after its initial issuance,
shall be in writing but need not comply with Section 10.4.
Before the first delivery of a Security of any series to the Trustee
for authentication, the Corporation shall deliver to the Trustee the following:
(1) the Board Resolution by or pursuant to which the
forms and terms of the Security have been approved;
(2) an Officers' Certificate of the Corporation dated the
date of delivery stating that all conditions precedent provided for in
this Indenture relating to the authentication and delivery of
Securities in that series have been complied with and directing the
Trustee to authenticate and deliver the Securities to or upon written
order of the Corporation; and
(3) an Opinion of Counsel stating that all conditions
precedent provided for in this Indenture relating to the authentication
and delivery of Securities of that series have been complied with, the
form and terms of the series have been established by or pursuant to a
Board Resolution or Resolutions in conformity with this Indenture, and
that Securities in such form when completed by appropriate insertions
and executed by the Corporation and delivered by the Corporation to the
Trustee for authentication in accordance with this Indenture,
authenticated and delivered by the Trustee in accordance with this
Indenture within the authorization as to aggregate principal amount
established from time to time by the Board of Directors and sold in the
manner specified in such Opinion of Counsel will be the legal, valid
and binding obligations of the Corporation entitled to the benefits of
this Indenture, subject to applicable bankruptcy, reorganization,
insolvency and other similar laws generally affecting creditors rights
and to general equity principles, and to such other qualifications as
such counsel shall conclude do not materially affect the rights of
Holders of Securities of that series or that are customarily included
in similar opinions by lawyers experienced in such matters.
Notwithstanding the foregoing, if the Corporation shall establish
pursuant to Section 2.3 that the Securities of a series are to be issued in
whole or in part in the form of one or more Global Securities, then the
Corporation shall execute and the Trustee shall, in accordance with this
Section, Section 2.2 and the authentication order of the Corporation with
respect to such series, authenticate and deliver one or more Global Securities
in temporary or permanent form that shall (a) represent and be denominated in an
aggregate amount equal to the aggregate principal amount of the Securities of
such series to be represented by one or more Global Securities, (b) be
registered in the name of the Depositary for such Global Security or Global
Securities or the nominee of such Depositary, (c) be delivered by the Trustee to
such Depositary or pursuant to such Depositary's instruction, and (d) bear a
legend substantially to the following effect: "Unless and until it is exchanged
in whole or in part for Securities in definitive form, this Security may not be
transferred except as a whole by the Depositary to a nominee of the Depositary
or by a nominee of the Depositary to the Depositary or another nominee of the
Depositary or by the Depositary or any nominee to a successor Depositary or a
nominee of any successor Depositary."
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(b) The Original Securities and Exchange Securities and the
Trustee's certificate of authentication shall be substantially in the form of
Exhibit A annexed hereto, which is part of this Indenture. The Securities may
have notations, legends or endorsements required by law, stock exchange rule or
usage. Each Security shall be dated the date of its authentication.
The terms and provisions contained in the forms of Securities annexed
hereto as Exhibit A shall constitute, and are expressly made, a part of this
Indenture. To the extent applicable, the Corporation and the Trustee, by their
execution and delivery of this Indenture, expressly agree to such terms and
provisions and to be bound thereby.
(c) Securities offered and sold in reliance on Rule 144A shall be
issued initially in the form of one or more permanent global Securities in
registered form, substantially in the form as above recited (the "U.S. Global
Note"), deposited with the Trustee, as custodian for the Depositary, duly
executed by the Corporation and authenticated by the Trustee as hereinafter
provided. The aggregate principal amount of the U.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.
Securities offered and sold in reliance on Regulation D under the
Securities Act shall be issued in the form of permanent certificated Securities
in registered form in substantially the form as above recited (the "Physical
Notes").
The definitive Securities shall be typed, printed, lithographed or
engraved or produced by any combination of these methods or may be produced in
any other manner permitted by the rules of any securities exchange on which the
Securities may be listed, all as determined by the officers executing such
Securities, as evidenced by their execution of such Securities.
(d) Unless and until an Original Security is exchanged for an
Exchange Security in connection with an effective Registration Statement
pursuant to the Registration Rights Agreement, the Global Note, and each
Physical Note shall bear the following legend on the face thereof:
THE SECURITIES EVIDENCED HEREBY HAVE NOT BEEN REGISTERED UNDER THE
UNITED STATES SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES
ACT"), AND MAY NOT BE OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED
EXCEPT (A) BY THE INITIAL INVESTOR (1) TO A PERSON WHOM THE SELLER
REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER (WITHIN THE
MEANING OF RULE 144A UNDER THE SECURITIES ACT) PURCHASING FOR ITS OWN
ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER IN A
TRANSACTION MEETING THE REQUIREMENTS OF RULE 144A, (2) PURSUANT TO AN
EXEMPTION FROM REGISTRATION UNDER THE SECURITIES ACT PROVIDED BY RULE
144 THEREUNDER (IF AVAILABLE), OR (3) PURSUANT TO AN EFFECTIVE
REGISTRATION STATEMENT UNDER THE SECURITIES ACT AND (B) BY SUBSEQUENT
INVESTORS, AS SET FORTH IN (A) ABOVE AND, IN ADDITION, TO AN
INSTITUTIONAL "ACCREDITED INVESTOR" (AS DEFINED
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IN RULE 501(a)(1), (2), (3), OR (7) OF REGULATION D UNDER THE
SECURITIES ACT) IN A TRANSACTION EXEMPT FROM REGISTRATION REQUIREMENTS
OF THE SECURITIES ACT, IN EACH CASE (A) AND (B) IN ACCORDANCE WITH ALL
APPLICABLE SECURITIES LAWS OF THE STATES OF THE UNITED STATES.
Each Global Note, whether or not an Exchange Note, shall bear the
following legend on the face thereof:
UNLESS THIS SECURITY IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF
THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE
CORPORATION OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR
PAYMENT, AND ANY SECURITY 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 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 SECURITY SHALL BE
LIMITED TO TRANSFERS MADE IN ACCORDANCE WITH THE RESTRICTIONS SET FORTH
IN SECTION 2.8 OF THE INDENTURE.
Section 2.2 Execution and Authentication. Two Officers shall sign the
Securities for the Corporation by manual or facsimile signature. The
Corporation's seal shall be impressed, affixed, imprinted or reproduced on the
Securities.
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 the Trustee manually signs the
certificate of authentication on the Security. The signature shall be conclusive
evidence that the Security has been authenticated under this Indenture.
Notwithstanding the provisions of Section 2.3 and of the preceding
paragraphs, if all Securities of a series are not to be originally issued at one
time (including, for example, a series constituting a medium-term note program),
it shall not be necessary to deliver the Officers' Certificate or the Opinion of
Counsel otherwise required pursuant to Section 2.1 at or prior to the time of
authentication of each Security of such series if such documents are delivered
at or prior to the time of authentication upon original issuance of the first
Security of such series. In such
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case the Trustee may conclusively rely on the foregoing documents and opinions
delivered pursuant to Section 2.1 and Section 2.3, and this Section, as
applicable (unless revoked by superseding comparable documents or opinions), as
to the matters set forth therein.
Notwithstanding the foregoing, if any Security shall have been duly
authenticated and delivered hereunder but never issued and sold by the
Corporation, and the Corporation shall deliver such Security to the Trustee for
cancellation as provided in Section 2.13 together with a written statement
(which need not comply with Section 2.1 and need not be accompanied by an
Opinion of Counsel) stating that such Security has never been issued and sold by
the Corporation, for all purposes of this Indenture such Security shall be
deemed never to have been authenticated and delivered hereunder and shall never
be entitled to the benefits of this Indenture.
If any Security of a series shall be represented by a Global Security,
then, for purposes of this Section and Section 2.12, the notation of the record
owners' interest therein upon original issuance of such Security shall be deemed
to be delivery in connection with the original issuance of each beneficial
owner's interest in such Global Security.
The Trustee's certificate of authentication on all Securities shall be
in substantially the following form:
This is one of the Securities of the series designated herein
and referred to in the within-mentioned Indenture.
Date: First Union National Bank, as Trustee
By:
---------------------------------------,
Authorized Officer
If at any time there shall be an Authenticating Agent appointed with
respect to any series of Securities, then the Trustee's certificate of
authentication to be borne by the Securities of each such series shall be
substantially as follows:
This is one of the Securities referred to in the within-mentioned
Indenture.
First Union National Bank, as Trustee
By:
---------------------------------------,
as Authenticating Agent
By:
----------------------------------------
Authorized Officer
The Trustee may appoint an authenticating agent acceptable to the
Corporation to authenticate Securities. An authenticating agent may authenticate
Securities whenever the
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Trustee may do so. Each reference in this Indenture to authentication by the
Trustee includes authentication by such Agent. An authenticating agent has the
same rights as an Agent to deal with the Corporation.
Section 2.3 Title, Amount and Terms of Securities. The principal amount
of Securities that may be authenticated and delivered and outstanding under this
Indenture is not limited. The Securities may be issued in a total principal
amount up to that authorized from time to time by or pursuant to relevant Board
Resolutions.
The Securities may be issued in one or more series, each of which shall
be issued pursuant to a Board Resolution or Resolutions of the Corporation,
which shall specify:
(1) the title of the Securities of that series (which
shall distinguish the Securities of that series from Securities of all
other series);
(2) any limit on the aggregate principal amount of the
Securities of that series that may be authenticated and delivered under
this Indenture (except for Securities authenticated and delivered upon
registration or transfer of, in exchange for or in lieu of other
Securities of that series pursuant to Section 2.7, 2.8, 2.9, 2.10 or
3.7);
(3) the date or dates (or manner of determining the same)
on which the principal of the Securities of that series is payable;
(4) the rate or rates, or the method to be used in
ascertaining the rate or rates (which may be fixed or variable), at
which the Securities of that series shall bear interest (if any), the
basis upon which interest shall be calculated if other than that of a
360-day year of 12 30-day months, the date or dates from which such
interest shall accrue, the interest payment dates on which such
interest shall be payable and the record date for the interest payable
on any interest payment date;
(5) if the trustee of that series is other than the
Trustee initially named in this Indenture or any successor thereto, the
trustee of that series;
(6) the place or places where the principal of and
interest, if any, on Securities of that series shall be payable;
(7) the period or periods within which, the price or
prices at which and the terms and conditions on which Securities of
that series may be redeemed, in whole or in part, at the option of the
Corporation;
(8) the obligation, if any, of the Corporation to redeem
or purchase Securities of that series pursuant to any sinking fund or
analogous provisions or at the option of Holders of Securities of that
series, and the period or periods within which, the price or prices at
which and the terms and conditions upon which Securities of that series
shall be redeemed or purchased, in whole or in part, pursuant to such
obligation;
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(9) if denominated in U.S. dollars, and in denominations
other than denominations of $1,000 and any multiple of $1,000, the
denominations in which Securities of that series shall be issuable;
(10) if denominated in other than U.S. dollars, the
currency or currencies, including composite currencies, in which the
Securities of that series are denominated, and the denominations in
which Securities of that series shall be issuable;
(11) if other than the currency in which the Securities of
that series are denominated, the currency or currencies, including
composite currencies, in which payment of the principal of and
interest, if any, on Securities of that series shall be payable;
(12) if the amount of payments of the principal of and
interest, if any, on the Securities of that series may be determined
with reference to an index based on a currency or currencies other than
that in which the Securities of that series are denominated, the manner
in which such amounts shall be determined;
(13) if other than the full principal amount, the portion
of the principal amount of Securities of that series which shall be
payable upon a declaration of acceleration of the maturity pursuant to
Section 6.2;
(14) if convertible into Securities of another series, the
terms upon which the Securities of that series will be convertible into
Securities of such other series;
(15) the right, if any, of the Corporation to redeem all
or any part of the Securities of that series before maturity and the
period or periods within which, the price or prices at which and the
terms and conditions upon which Securities of that series may be
redeemed;
(16) the provisions, if any, restricting defeasance of the
Securities of that series;
(17) if other than or in addition to the events specified
in Section 6.1, events of default with respect to the Securities of
that series;
(18) if the Securities of that series are to be issued in
whole or in part in the form of one or more Global Securities, the
Depositary for such Global Security or Global Securities and whether
beneficial owners of interests in any such Global Securities may
exchange such interests for other Securities of such series in the
manner provided in Section 2.7, and the manner and the circumstances
under which and the place or places where any such exchanges may occur
if other than in the manner provided in Section 2.7, and any other
terms of the series relating to the global nature of the Securities of
such series and the exchange, registration or transfer thereof and the
payment of any principal thereof or interest, if any, thereon;
(19) any other terms of or relating to the Securities of
that series (which terms shall not be inconsistent with the provisions
of this Indenture); and
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(20) the form of any notice to be delivered to the Trustee
with respect to any such Security.
References herein to currency shall include ECUs, unless otherwise
specified or unless the context otherwise requires.
All Securities of any particular series shall be identical as to
currency of denomination and otherwise shall be substantially identical except
as to denomination and except as may otherwise be provided in or pursuant to the
relevant Board Resolution or Resolutions.
The Trustee need not authenticate the Securities in any series if their
terms impose on the Trustee duties in addition to those imposed on the Trustee
by this Indenture. If the Trustee does authenticate any such Securities, the
authentication will evidence the Trustee's agreement to comply with any such
additional duties.
Each Depositary designated pursuant to this Section 2.4 for a Global
Security in registered form shall, if required, at the time of its designation
and at all times while it serves as a Depositary, be a clearing agency
registered under the Exchange Act and any other applicable statute or
regulation.
Section 2.4 Registrar and Paying Agent. The Corporation shall maintain
an office or agency where Securities may be presented for registration of
transfer or for exchange ("Registrar") and an office or agency where Securities
may be presented for payment ("Paying Agent"). The Registrar shall keep a
register of the Securities and of their transfer and exchange. The Corporation
may have one or more co-registrars and one or more additional paying agents. The
term "Paying Agent" includes any additional paying agent. There may be separate
Registrars and Paying Agents for different series of Securities.
The Corporation shall enter into an appropriate agency agreement with
any Registrar, Paying Agent or co-registrar not a party to this Indenture. The
agreements shall implement the provisions of this Indenture that relate to such
Agent. The Corporation shall notify the Trustee of the name and address of any
such Agent. If the Corporation fails to maintain a Registrar or Paying Agent,
the Trustee shall act as such.
The Corporation initially appoints the Trustee as Registrar and Paying
Agent.
Section 2.5 Paying Agent to Hold Money in Trust. Each Paying Agent for
any series of Securities shall hold in trust for the benefit of Holders of
Securities of the same series or the Trustee all money held by the Paying Agent
for the payment of principal of or interest on such Securities and shall notify
the Trustee of any default by the Corporation in making such payment. If the
Corporation or a Subsidiary acts as Paying Agent with respect to a series of
Securities, it shall segregate the money for that series and hold it as a
separate trust fund. The Corporation at any time may require a Paying Agent to
pay all money held by it to the Trustee. Upon doing so the Paying Agent shall
have no further liability for the money.
Section 2.6 Securityholder Lists. For each series of Securities, the
Trustee shall preserve in as current a form as is reasonably practicable the
most recent list available to it of the
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names and addresses of Holders of Securities of that series. If the Trustee is
not the Registrar, the Corporation shall furnish or cause to be furnished to the
Trustee on or before each interest payment date for each series of Securities
and at such other times as the Trustee may request in writing a list in such
form and as of such date as the Trustee may reasonably require of the names and
addresses of Holders of Securities of that series.
Section 2.7 Transfer and Exchange .
Where a Security (other than a Global Security except as set forth
herein) is presented to the Registrar or a co-registrar with a request to
register a transfer, the Registrar shall register the transfer as requested if
the requirements of Section 8-401(1) (or any successor provision) of the Uniform
Commercial Code are met, the requirements of Sections 2.8 and 2.9, if
applicable, are met, and, if so required by the Trustee or the Corporation, if
the Security presented is accompanied by a written instrument of transfer in
form satisfactory to the Trustee and the Corporation, duly executed by the
registered owner or by his or her attorney duly authorized in writing. Where
Securities (other than a Global Security except as set forth herein) of any
series are presented to the Registrar or a co-registrar with a request to
exchange them for an equal principal amount of Securities of other denominations
of the same series with identical terms as the Securities exchanged (including
the exchange of Original Securities for Exchange Securities), the Registrar
shall make the exchange as requested if the same requirements are met; provided
that no exchanges of Original Securities for Exchange Securities shall occur
until a Registration Statement shall have been declared effective by the SEC and
that any Original Securities that are exchanged for Exchange Securities shall be
cancelled by the Trustee in accordance with Section 2.13. The Corporation shall
notify the Trustee, the Registrar and the Paying Agent in writing of the
effectiveness of any such Registration Statement and of the occurrence of any
Registration Default. To permit transfers and exchanges, the Trustee shall
authenticate Securities at the Registrar's request. No service charge shall be
made for any registration of transfer or exchange of the Securities, but the
Corporation may require payment of a sum sufficient to cover any transfer tax or
similar governmental charge payable in connection therewith (other than any such
transfer taxes or similar governmental charge payable upon exchange pursuant to
Section 2.12, 3.7 or 9.5 of this Indenture.). The Corporation shall not be
required to make transfers or exchanges of Securities of any series for a period
of 15 days before a selection of Securities of the same series to be redeemed or
before an interest payment.
Notwithstanding any other provision of this Section, unless and until
it is exchanged in whole or in part for Securities in definitive form, a Global
Security representing all or a portion of the Securities of a series may not be
transferred except as a whole by the Depositary for such series to a nominee of
such Depositary or by a nominee of such Depositary to such Depositary or another
nominee of such Depositary or by such Depositary or any such nominee to a
successor Depositary for such series or a nominee of such successor Depositary.
None of the Corporation, the Trustee, the Paying Agent, the Registrar
or any co-registrar shall have any responsibility or liability for any aspect of
the records relating to or payments made on account of beneficial ownership
interests of a Global Security or for maintaining, supervising or reviewing any
records relating to such beneficial ownership interests.
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If at any time the Depositary for the Securities of a series notifies
the Corporation that it is unwilling or unable to continue as Depositary for the
Securities of such series or if at any time the Depositary for the Securities of
such series shall no longer be eligible under Section 2.3, the Corporation shall
appoint a successor Depositary with respect to the Securities of such series. If
a successor Depositary for the Securities of such series is not appointed by the
Corporation within 90 days after the Corporation receives such notice or becomes
aware of such ineligibility, the Corporation's election pursuant to Section
2.3(18) shall no longer be effective with respect to the Securities of such
series and the Corporation will execute, and the Trustee, upon receipt of an
order of the Corporation for the authentication and delivery of definitive
Securities of such series, will authenticate and deliver Securities of such
series in definitive form in the Global Security or Securities representing such
series in exchange for such Global Security or Securities.
The Corporation may at any time and in its sole discretion determine
that the Securities of any series issued in the form of one or more Global
Securities shall no longer be represented by such Global Security or Securities.
In such event the Corporation will execute, and the Trustee, upon receipt of an
order of the Corporation for the authentication and delivery of definitive
Securities of such series, will authenticate and deliver Securities of such
series in definitive form in an aggregate principal amount equal to the
principal amount of the Global Security or Securities representing such series
in exchange for such Global Security or Securities.
If specified by the Corporation pursuant to Section 2.3 with respect to
a series of Securities, the Depositary for such series of Securities may
surrender a Global Security for such series of Securities in exchange in whole
or in part for the Securities of such series in definitive form on such terms as
are acceptable to the Corporation and such Depositary. Thereupon, the
Corporation shall execute, and the Trustee shall authenticate and deliver:
(1) to each party specified by such Depositary a new
Security or Securities of the same series, of any authorized
denomination as requested by such party in aggregate principal amount
equal to and in exchange for such party's beneficial interest in the
Global Security; and
(2) to such Depositary a new Global Security in a
denomination equal to the difference, if any, between the principal
amount of the surrendered Global Security and the aggregate principal
amount of Securities delivered to Holders thereof.
Upon the exchange of the Global Security for Securities in definitive
form, such Global Security shall be canceled by the Trustee. Securities issued
in exchange for a Global Security pursuant to this Section 2.7 shall be
registered in such names and in such authorized denominations as the Depositary
for such Global Security, pursuant to instructions from its direct or indirect
participants or otherwise, shall instruct the Trustee. The Trustee shall deliver
such Securities to the parties in whose names such Securities are so registered.
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Section 2.8 Book-Entry Provisions for Global Note .
(a) The Global Note initially shall (i) be registered in the name
of the Depositary for such Global Note or the nominee of such Depositary, (ii)
be delivered to the Trustee as custodian for such Depositary and (iii) bear
legends as set forth in Section 2.1(d).
Members of, or participants in, the Depositary ("Agent Members") shall
have no rights under this Indenture with respect to any Global Note held on
their behalf by the Depositary, or the Trustee as its custodian, or under the
Global Note, and the Depositary may be treated by the Corporation, the Trustee
and any agent of the Corporation or the Trustee as the absolute owner of such
Global Note, for all purposes whatsoever. Notwithstanding the foregoing, nothing
herein shall prevent the Corporation, the Trustee or any agent of the
Corporation 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
governing the exercise of the rights of a holder of any Security.
(b) Transfers of the Global Note shall be limited to transfers of
such Global Note in whole, but not in part, to the Depositary, its successors or
their respective nominees. Beneficial interests in the Global Note may be
transferred in accordance with the applicable rules and procedures of the
Depositary and the provisions of Section 2.9 hereof. In addition, Physical Notes
shall be transferred to all beneficial owners in exchange for their beneficial
interests in the Global Note if (i) the Depositary notifies the Corporation that
it is unwilling or unable to continue as Depositary for the Global Note and a
successor depositary is not appointed by the Corporation within 90 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 to make such transfer.
(c) [Intentionally omitted.]
(d) In connection with any transfer of a beneficial interest to a
transferee receiving Physical Notes pursuant to paragraph (b) of this Section
2.8, the Registrar shall reflect on its books and records the date and a
decrease in the principal amount of the Global Note in an amount equal to the
principal amount of the beneficial interest in the Global Note to be
transferred, and the Corporation shall execute, and the Trustee shall
authenticate and deliver, one or more Physical Notes of like tenor and amount.
(e) In connection with the transfer of the entire Global Note to
beneficial owners receiving Physical Notes pursuant to paragraph (b) of this
Section 2.8, the Global Note shall be deemed to be surrendered to the Trustee
for cancellation, and the Corporation shall execute, and the Trustee shall
authenticate and deliver, to each beneficial owner identified by the Depositary
in exchange for its beneficial interest in the Global Note an equal aggregate
principal amount of Physical Notes of authorized denominations.
(f) Any Physical Note delivered in exchange for an interest in the
Global Note pursuant to paragraph (b) or (d) of this Section 2.8 shall, except
as otherwise provided by paragraph (c) of Section 2.9, bear the legend regarding
transfer restrictions applicable to the Physical Note set forth in Section
2.1(d).
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(g) [Intentionally omitted.]
(h) The registered holder of the Global Note 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 such holder is
entitled to take under this Indenture or the Securities.
Section 2.9 Special Transfer Provisions.
Unless and until an Original Security is exchanged for an Exchange
Note, or the Original Securities are registered for sale in connection with an
effective registration pursuant to the Registration Rights Agreement, the
following provisions shall apply:
(a) Transfers to Non-QIB Institutional Accredited Investors. The
following provisions shall apply with respect to the registration of any
proposed transfer of an Original Security to any Institutional Accredited
Investor which is not a QIB:
(i) The Registrar shall register the transfer of any Original
Security, whether or not such Original Security bears the Private
Placement Legend, if (x) the requested transfer is at least two years
after the original Issue Date of the Original Securities and the
proposed transferor checks box A.3 on Exhibit B attached hereto,
certifying that the sale has been made in compliance with the
provisions of Rule 144 or (y) the proposed transferor checks box A.4
provided for on Exhibit B attached hereto, certifying to the Registrar
that it (or any person holding a beneficial interest in such Original
Security through it) was not the initial Holder or beneficial owner of
such Original Security and the proposed transferee has delivered to the
Registrar (A) a certification substantially in the form of Section C of
Exhibit B hereto and (B) if the aggregate principal amount of the
Original Securities being transferred is less than $100,000 at the time
of such transfer, an opinion of counsel acceptable to the Corporation
and the Registrar that such transfer is in compliance with the
Securities Act.
(ii) If the proposed transferor is an Agent Member holding a
beneficial interest in the Global Note, upon receipt by the Registrar
of (x) the documents, if any, required by paragraph (i) and (y)
instructions given in accordance with the Depositary's and the
Registrar's procedures, the Registrar shall reflect on its books and
records the date and decrease in the principal amount of the Global
Note in an amount equal to the principal amount of the beneficial
interest in the Global Note to be transferred, and the Corporation
shall execute, and the Trustee shall authenticate and deliver, one or
more Physical Notes of like tenor and amount. If the proposed
transferor holds Original Securities represented by Physical Notes,
upon receipt by the Registrar of the documents, if any, required by
paragraph (i) and surrender of the Physical Notes representing the
Securities to be transferred, the Corporation shall execute, and the
Trustee shall authenticate and deliver, one or more Physical Notes of
like tenor and amount and cancel the Physical Notes so surrendered for
transfer.
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(b) Transfers to QIBs. The following provisions shall apply with
respect to the registration of any proposed transfer of an Original Security to
a QIB:
(i) If the Original Security to be transferred consists of
Physical Notes, the Registrar shall register the transfer if such
transfer is being made by a proposed transferor who has checked box A.1
provided for on Exhibit B attached hereto, certifying that the sale has
been made in compliance with the provisions of Rule 144A to a
transferee who has signed the certification provided for in Section B
of Exhibit B attached hereto stating that it is purchasing the Original
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 within the meaning of Rule 144A, and is aware that the sale to
it is being made in reliance on Rule 144A and acknowledges that it has
received such information regarding the Corporation 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) If the proposed transferee is an Agent Member, and the
Original Security to be transferred consists of Physical Notes, upon
receipt by the registrar of the documents referred to in clause (i) and
instructions given in accordance with the Depositary's and the
Registrar's procedures, the Registrar shall reflect on its books and
records the date and an increase in the principal amount of the Global
Note in an amount equal to the principal amount of the Physical Note to
be transferred, and the Trustee shall cancel the Physical Note so
transferred.
(c) Private Placement Legend. Upon the transfer, exchange or
replacement of Securities not bearing the Private Placement Legend, the
Registrar shall deliver Securities that do not bear the Private Placement
Legend. Upon the transfer, exchange or replacement of Securities bearing the
Private Placement Legend, the Registrar shall deliver only Securities that bear
the Private Placement Legend unless the circumstances contemplated by paragraph
(a)(i)(x) of this Section 2.9 exist or (ii) there is delivered to the Registrar
an opinion of counsel reasonably satisfactory to the Corporation and the
Registrar to the effect that neither such legend nor the related restrictions on
transfer are required in order to maintain compliance with the provisions of the
Securities Act.
(d) General. By its acceptance of any Security bearing the Private
Placement Legend, each holder of such Security acknowledges the restrictions on
transfer of such Security set forth in this Indenture and in the Private
Placement Legend and agrees that it will transfer such Security only as provided
in this Indenture. The Registrar shall not register a transfer of any Security
unless such transfer complies with the restrictions on transfer of such Security
set forth in this Indenture, provided, however, that the Registrar shall
register the transfer of any Original Security, whether or not such Original
Security bears the Private Placement Legend, if the requested transfer is at
least two years after the later of the original Issue Date of the Original
Security and the last date on which such Original Security was held by an
affiliate of the Corporation. In connection with any transfer of Securities,
each holder agrees by its acceptance of the Original Securities to furnish the
Registrar or the Corporation such certifications, legal opinions or other
information as either
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of them may reasonably require to confirm that such transfer is being made
pursuant to an exemption from, or a transaction not subject to, the registration
requirements of the Securities Act; provided that the Registrar shall not be
required to determine (but may rely on a determination made by the Corporation
with respect to) the sufficiency of any such certifications, legal opinions or
other information.
The Registrar shall retain copies of all letters, notices and other
written communications received pursuant to Section 2.8 hereof or this Section
2.9. The Corporation shall have the right to inspect and make copies of all such
letters, notices or other written communications at any reasonable time upon the
giving of reasonable written notice to the Registrar. The Registrar shall be
entitled to rely on certifications and representations made to it by transferees
and transferors with respect to the matters described herein and shall have no
duty to investigate such representations.
Section 2.10 Replacement Securities. If the Holder of a Security claims
that the Security has been mutilated, destroyed, lost or stolen, the Corporation
may issue and the Trustee shall authenticate a replacement Security of the same
series with identical terms as the Securities exchanged if the requirements of
Section 8-405 (or any successor provision) of the Uniform Commercial Code are
met. Such holder shall furnish an indemnity bond sufficient in the judgment of
the Corporation and the Trustee to protect the Corporation, the Trustee, the
Paying Agent, the Registrar and any co-registrar from any loss which any of them
may suffer if a Security is replaced. The Corporation and the Trustee may charge
for their expenses in replacing a Security.
In case any such mutilated, destroyed, lost or stolen Security has
become due and payable, the Corporation in its discretion may, instead of
issuing a new Security, pay such Security (without surrender thereof except in
the case of a mutilated Security) if the applicant for such payment shall
furnish to the Corporation, the Trustee, the Paying Agent, the Registrar and any
co-registrar for such Security such security or indemnity as may be required by
them to hold each of them harmless, and in case of destruction, loss or theft,
evidence satisfactory to the Corporation, the Trustee, the Paying Agent, the
Registrar and any co-registrar, and any agent of any of them, of the
destruction, loss or theft of such Security and the ownership thereof.
Upon the issuance of any new Security under this Section 2.10, the
Corporation 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 all fees and expenses of the Trustee, the Paying Agent, the
Registrar and any co-registrar for such Security) connected therewith.
Every new Security of any series issued pursuant to this Section 2.10
in lieu of any destroyed, lost or stolen Security or in exchange for any
mutilated Security, shall constitute an original additional obligation of the
Corporation, whether or not the destroyed, lost or stolen Security shall be at
any time enforceable by anyone, and shall be entitled to all the benefits of
this Indenture equally and proportionately with any and all other Securities of
the same series.
The provisions of this Section 2.10 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.
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Section 2.11 Outstanding Securities. Securities outstanding at any time
are all Securities authenticated by the Trustee (and, in the case of Global
Securities endorsed by the Trustee) except for those canceled by it, those
delivered to it for cancellation and those described in this Section as not
outstanding. A Security does not cease to be outstanding because the Corporation
or an affiliate of the Corporation holds the Security.
If a Security is replaced pursuant to Section 2.10, it ceases to be
outstanding unless the Trustee receives proof satisfactory to it that the
replaced Security is held by a bona fide purchaser.
If the Paying Agent holds on a redemption date or maturity date money
sufficient to pay Securities payable on that date, then on and after that date
such Securities cease to be outstanding and interest on them ceases to accrue.
If a Security is called for redemption, the Corporation and the Trustee
need not treat the Security as outstanding in determining whether Holders of the
required principal amount of Securities have concurred in any direction, waiver
or consent.
Upon the exchange of any Original Securities for Exchange Securities,
such Original Securities shall be cancelled in accordance with Section 2.13 and
shall no longer be deemed outstanding for any purpose.
Section 2.12 Temporary Securities. Until definitive Securities of any
series are ready for delivery or a permanent Global Security or Securities are
prepared, as the case may be, the Corporation may prepare and the Trustee shall
authenticate temporary Securities or one or more temporary Global Securities, as
the case may be, of the same series in accordance with the terms and conditions
of this Indenture. Temporary Securities of any series shall be substantially in
the form of definitive Securities or permanent Global Securities, as the case
may be, of the same series, but may have variations that the Corporation
considers appropriate for temporary Securities. Without unreasonable delay, the
Corporation shall prepare and the Trustee shall authenticate definitive
Securities or a permanent Global Security or Securities, as the case may be, of
the same series in exchange for temporary Securities. Until so exchanged, the
temporary Securities of any series shall be entitled to the same benefits under
this Indenture as definitive Securities or permanent Global Securities of such
series.
Section 2.13 Cancellation. The Corporation 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 transfer,
exchange or payment. The Trustee and no one else shall cancel or destroy all
Securities surrendered for transfer, exchange, payment or cancellation, and
shall so certify to the Corporation. The Corporation may not issue new
Securities to replace Securities it has paid or delivered to the Trustee for
cancellation.
Section 2.14 Defaulted Interest. If the Corporation defaults in a
payment of interest on any Securities of any series, it shall pay the defaulted
interest to the persons who are Holders of those Securities on a subsequent
special record date. The Corporation shall fix the special record date and
payment date. At least 15 days before the special record date, the Corporation
shall mail to each Holder of Securities of that series a notice that states the
special record date, the payment
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date and the amount of defaulted interest to be paid. The Corporation may pay
defaulted interest in any other lawful manner.
Section 2.15 Payment in Currencies.
(a) Payment of the principal of and interest, if any, on the
Securities shall be made in the currency or currencies specified below:
(1) for Securities of a series denominated in U.S.
dollars, payment shall be made in U.S. dollars;
(2) for Securities of a series denominated in ECU,
payment shall be made in ECU unless the Holder of a Security of that
series elects to receive payment in U.S. dollars or any Foreign
Currency or Currencies designated for that purpose pursuant to Section
2.3 and such election is permitted by the Board Resolution or
Resolutions adopted pursuant to Section 2.3 in respect of that series;
and
(3) for Securities of a series denominated in a Foreign
Currency, payment shall be made in that Foreign Currency unless the
Holder of a Security of that series elects to receive payment in U.S.
dollars and such election is permitted by the Board Resolution or
Resolutions adopted pursuant to Section 2.3 in respect of that series.
A Holder may make the election referred to in clause (2) or (3) above by
delivering to the Trustee a written notice of election substantially in the form
contemplated by the Board Resolution or Resolutions adopted pursuant to Section
2.3 or in any other form acceptable to the Trustee. For any payment, a notice of
election will not be effective unless it is received by the Trustee not later
than the close of business on the applicable record date. An election shall
remain in effect until the Holder delivers to the Trustee a written notice
specifying a change in the currency in which payment is to be made. No change in
currency may be made for payments to be made on Securities of a series for which
notice of redemption has been given pursuant to Article 3 or as to which the
Corporation has accomplished a satisfaction, discharge or defeasance pursuant to
Section 8.1, 8.2 or 8.3.
(b) The Trustee shall deliver to the Corporation, not later than
the fourth business day after each record date for payment on Securities of a
series denominated in ECU or a Foreign Currency, a written notice specifying, in
the currency in which the Securities of that series are denominated, the
aggregate amount of the principal of and interest, if any, on Securities of that
series to be paid on the payment date. If at least one Holder has made the
election referred to in clause (2) or (3) of paragraph (a) of this Section, the
written notice shall also specify, in each currency elected, the amount of
principal of and interest, if any, to be paid in that currency on the payment
date.
(c) The amount payable to Holders of Securities of a series
denominated in ECU who have elected to receive payment in U.S. dollars or a
Foreign Currency or Currencies as provided in paragraph (a) of this Section
shall be determined by the Trustee on the basis of the Official Exchange Rate in
effect on the record date. The amount payable to Holders of Securities of a
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series denominated in a Foreign Currency who have elected to receive payment in
U.S. dollars shall be determined by the Trustee on the basis of the Market
Exchange Rate in effect on the record date.
(d) (i) If the Foreign Currency in which a series of Securities is
denominated ceases to be used both by the government of the country
that issued such currency and for the settlement of transactions by
public institutions of or within the international banking community,
then for each payment date on Securities of that series occurring after
the last date on which the Foreign Currency was so used, all payments
on Securities of that series shall be made in U.S. dollars. If payment
is to be made in U.S. dollars to the Holders of Securities of any such
series pursuant to the preceding sentence, then the amount to be paid
in U.S. dollars on a payment date by the Corporation to the Trustee and
by the Trustee or any Paying Agent to Securityholders shall be
determined by the Trustee as of the applicable record date and shall be
equal to the sum obtained by converting the specified Foreign Currency
into U.S. dollars at the Market Exchange Rate on the last record date
on which such Foreign Currency was so used in either such capacity.
If a Holder of a Security denominated in ECU has elected to
receive payment in a specified Foreign Currency as provided for by
paragraph (a) of this Section and such Foreign Currency ceases to be
used both by the government of the country that issued such currency
and for the settlement of transactions by public institutions of or
within the international banking community, the Holder shall, subject
to paragraph (d)(ii) of this Section, receive payment in ECU unless the
Holder has elected or elects to receive payment in another Foreign
Currency as provided for by clause (3) of paragraph (a) of this
Section.
(ii) If the ECU ceases to be used both within the European
Monetary System and for the settlement of transactions by public
institutions of or within the European Communities, payments on
Securities of a series denominated in ECU on payment dates occurring
after the last date on which the ECU was so used (the "ECU Conversion
Date") shall be made in U.S. dollars unless the Holder has elected or
elects to receive payment in a Foreign Currency as provided for by
clause (2) of paragraph (a) of this Section.
If payment on Securities of a series denominated in ECU is to be made
in U.S. dollars pursuant to the preceding paragraph, then the amount to be paid
in U.S. dollars on a payment date by the Corporation to the Trustee and by the
Trustee or any Paying Agent to Securityholders shall be determined by the
Trustee as of the applicable record date and shall be equal to the sum of the
amounts obtained by converting each Component into U.S. dollars at its
respective Market Exchange Rate as of such record date, multiplied by the number
of ECU that would have been so paid had the ECU not ceased to be so used. If
payment on Securities denominated in ECU is to be made in Foreign Currency
pursuant to the preceding paragraph, then the amount to be paid in such Foreign
Currency on a payment date by the Corporation to the Trustee and by the Trustee
or any Paying Agent to Securityholders shall be determined by the Trustee as of
the applicable record date and shall be determined by (A) converting each
Component into U.S. dollars at the Market Exchange Rate for such Component on
such record date and (B) converting the sum in
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U.S. dollars so obtained into such Foreign Currency at the Market Exchange Rate
on such record date.
(e) All decisions and determinations of the Trustee regarding the
amount payable in accordance with paragraph (c) of this Section, conversion of
Foreign Currency into U.S. dollars pursuant to paragraph (d)(i) of this Section
or the conversion of ECU into U.S. dollars or Foreign Currency pursuant to
paragraph (d)(ii) of this Section, the Official Exchange Rate or the Market
Exchange Rate shall, in the absence of manifest error, be conclusive for all
purposes and irrevocably binding upon the Corporation and all Securityholders.
If a Foreign Currency in which payment on Securities of a series may be made
pursuant to paragraph (a) of this Section ceases to be used both by the
government of the country that issued such currency and for the settlement of
transactions by public institutions of or within the international banking
community, the Corporation shall give notice to the Trustee and mail notice by
first-class mail to each Holder of Securities of that series specifying the last
date on which the Foreign Currency was used for the payment of principal of or
interest, if any, on Securities of that series. If the ECU ceases to be used
both within the European Monetary System and for the settlement of transactions
by public institutions of or within the European Communities, the Corporation
shall give notice to the Trustee and mail notice by first-class mail to each
Holder of Securities of a series denominated or payable in ECU specifying the
ECU Conversion Date and the Components on the ECU Conversion Date. In the event
of any subsequent change in any Component, the Corporation shall give notice to
the Trustee and Securityholders similarly.
Section 2.16 CUSIP Numbers. The Corporation 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 that 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.
ARTICLE 3.
REDEMPTION
Section 3.1 Applicability of this Article. Securities of any series
that are redeemable prior to their maturity shall be redeemable in accordance
with their terms (except as otherwise specified in this Indenture for Securities
of any series) and in accordance with this Article 3.
Section 3.2 Notices to Trustee. If the Corporation wants to redeem any
Securities, it shall notify the Trustee of the redemption date and the principal
amount of Securities to be redeemed in accordance with the terms of the
Securities. If the redemption is of less than all the outstanding Securities of
a series, the Corporation shall furnish to the Trustee a written statement
signed by an officer of the Corporation stating that with respect to that series
there exists no Event of Default and no circumstance which, after notice or the
passage of time or both, would
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constitute an Event of Default. The Corporation shall give the notice provided
for in this Section at least 50 days before the redemption date.
Section 3.3 Selection of Securities to be Redeemed. If, at the option
of the Corporation, less than all the Securities of a series are to be redeemed,
the Trustee shall select the Securities to be redeemed by a method the Trustee
considers fair and appropriate, subject to any applicable stock exchange
requirements. The Trustee shall make the selection from outstanding Securities
not previously called for redemption. The Trustee may select for redemption
portions of the principal of Securities that have a denomination larger than
$1,000 (or the applicable minimum denomination for such Securities in the event
the Securities are payable in ECUs or a Foreign Currency or Currencies),
Securities and portions of them it selects shall be in amounts of $1,000 (or the
applicable minimum denomination for such Securities in the event the Securities
are payable in ECUs or a Foreign Currency or Currencies) or a multiple of $1,000
(or the applicable minimum denomination for such Securities in the event the
Securities are payable in ECUs or a Foreign Currency or Currencies). Provisions
of this Indenture that apply to Securities called for redemption also apply to
portions of Securities called for redemption.
The Trustee for the Securities of any series to be redeemed shall
promptly notify the Corporation in writing of the Securities of such series
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 the 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 Securities which has been or is to be
redeemed.
Section 3.4 Notice of Redemption. At least 20 days but not more than 60
days before a date of redemption of Securities at the option of the Corporation,
the Corporation shall mail a notice of redemption by first-class mail to each
Holder of Securities to be redeemed.
The notice shall identify the Securities to be redeemed and shall
state:
(1) the redemption date;
(2) the redemption price;
(3) the name and address of the Paying Agent;
(4) that Securities called for redemption must be
surrendered to the Paying Agent to collect the redemption price; and
(5) that interest on Securities called for redemption
ceases to accrue on and after the redemption date.
At the Corporation's request, the Trustee shall give the notice of
redemption in the Corporation's name and at its expense. In such event the
Corporation will provide the Trustee with the information required by clauses
(1) through (5).
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Section 3.5 Effect of Notice of Redemption. Once notice of redemption
is mailed, Securities called for redemption become due and payable on the
redemption date and at the redemption price stated in the notice. Upon surrender
to the Paying Agent, such Securities shall be paid at the redemption price
stated in the notice, plus accrued interest to the redemption date; provided,
however, that any regular payment of interest becoming due on the redemption
date shall be payable to the Holder of any such Security being redeemed as
provided in the Security.
Section 3.6 Deposit of Redemption Price. By the opening of business on
the redemption date, the Corporation shall deposit with the Paying Agent money
sufficient to pay the redemption price of and accrued interest on all Securities
to be redeemed on that date.
Section 3.7 Securities Redeemed in Part. Upon surrender of a Security
that is redeemed in part, the Trustee shall authenticate for the Holder a new
Security equal in principal amount to the unredeemed portion of the Security
surrendered.
ARTICLE 4.
COVENANTS
Section 4.1 Certain Definitions. "Attributable Debt" for a lease means
the carrying value of the capitalized rental obligation determined under
generally accepted accounting principles whether or not such obligation is
required to be shown on the balance sheet as a long-term liability. The carrying
value may be reduced by the capitalized value of the rental obligations,
calculated on the same basis, that any sublessee has for all or part of the same
property. This term does not include any obligation to make payments arising
from the transfer of tax benefits under the Economic Recovery Tax Act of 1981
(as it may from time to time be amended, or any successor statute) to the extent
such obligation is offset by or conditioned upon receipt of payments from
another person. A lease obligation shall be counted only once even if the
Corporation and one or more of its Subsidiaries may be responsible for the
obligation.
"Capital Expenditures" means, for any period, any expenditures of the
Corporation or its Subsidiaries during such period that, in conformity with
generally accepted accounting principles consistently applied, are required to
be included in fixed asset accounts on the consolidated balance sheet of the
Corporation and its Subsidiaries.
"Consolidated Net Tangible Assets" means total assets less (1) total
current liabilities (excluding any Debt which, at the option of the borrower, is
renewable or extendable to a term exceeding 12 months and which is included in
current liabilities and further excluding any deferred income taxes which are
included in current liabilities) and (2) goodwill, patents and trademarks, all
as reflected in the Corporation's most recent consolidated balance sheet
preceding the date of a determination under Section 4.3(11).
"Debt" means any debt for borrowed money which would appear on the
balance sheet as a liability or any guarantee of such a debt and includes
purchase money obligations. This term does not include any obligation to make
payments arising from the transfer of tax benefits under the
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Economic Recovery Tax Act of 1981 (as it may from time to time be amended, or
any successor statute) to the extent such obligation is offset by or conditioned
upon receipt of payments from another person. A Debt shall be counted only once
even if the Corporation and one or more of its Subsidiaries may be responsible
for the obligation.
"Lien" means any mortgage, pledge, security interest or lien. This term
does not include any obligation arising from the transfer of tax benefits under
the Economic Recovery Tax Act of 1981 (as it may from time to time be amended,
or any successor statute) to the extent such obligation is offset by or
conditioned upon receipt of payments from another person.
"Long-Term Debt" means Debt that by its terms matures on a date more
than 12 months after the date it was created or Debt that the obligor may extend
or renew without the obligee's consent to a date more than 12 months after the
Debt was created.
"Principal Property" means, as to any particular series of Securities,
any mining and quarrying or manufacturing facility located in the United States
and owned by the Corporation or by one or more Restricted Subsidiaries from the
date Securities of that series are first issued and which has, as of the date
the Lien is incurred, a net book value (after deduction of depreciation and
other similar charges) greater than 3% of Consolidated Net Tangible Assets,
except (1) any such facility or property which is financed by obligations of any
State, political subdivision of any State or the District of Columbia under
terms which permit the interest payable to the holders of the obligations to be
excluded from gross income as a result of the plant, facility or property
satisfying the conditions of Section 103(b)(4)(C), (D), (E), (F) or (H) or
Section 103(b)(6) of the Internal Revenue Code of 1954 or of Section 142(a) or
Section 144(a) of the Internal Revenue Code of 1986, or of any successors to
such provisions, or (2) any such facility or property which, in the opinion of
the Board of Directors of the Corporation, is not of material importance to the
total business conducted by the Corporation and its Subsidiaries taken as a
whole. However, the chief executive officer or chief financial officer of the
Corporation may at any time declare any mining and quarrying or manufacturing
facility or other property to be a Principal Property by delivering a
certificate to that effect to the Trustee.
"Restricted Property" means, as to any particular series of Securities,
any Principal Property, any Debt of a Restricted Subsidiary owned by the
Corporation or a Restricted Subsidiary on the date Securities of that series are
first issued or secured by a Principal Property (including any property received
upon a conversion or exchange of such debt), or any shares of stock of a
Restricted Subsidiary owned by the Corporation or a Restricted Subsidiary
(including any property or shares received upon a conversion, stock split or
other distribution with respect to the ownership of such stock).
"Restricted Subsidiary" means a Subsidiary that has substantially all
its assets located in, or carries on substantially all its business in, the
United States and that owns a Principal Property. Notwithstanding the preceding
sentence, a Subsidiary shall not be a Restricted Subsidiary during such period
of time as it has shares of capital stock registered under the Exchange Act or
it files reports and other information with the SEC pursuant to Section 13 or
15(d) of the Exchange Act.
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"Sale-Leaseback Transaction" means an arrangement whereby the
Corporation or a Restricted Subsidiary now owns or hereafter acquires a
Principal Property, transfers it to a person and contemporaneously leases it
back from the person. This term does not include any transaction arising from
the transfer of tax benefits under the Economic Recovery Tax Act of 1981 (as it
may from time to time be amended, or any successor statute) to the extent the
obligation to make rental payments is offset or conditioned upon receipt of
payments from another person.
"Subsidiary" means a corporation, a majority of the Voting Stock of
which is owned by the Corporation, the Corporation and one or more Subsidiaries,
or one or more Subsidiaries.
"United States" means the United States of America. The Commonwealth of
Puerto Rico, the Virgin Islands and other territories and possessions are not
part of the United States.
"Voting Stock" means capital stock having voting power under ordinary
circumstances to elect directors.
Section 4.2 Payment of Securities. The Corporation shall promptly pay
the principal of and interest, if any, on the Securities on the dates and in
the manner provided in the Securities.
To the extent lawful, the Corporation shall pay interest on overdue
principal at the rate borne by the Securities and shall pay interest on overdue
installments of interest at the same rate.
Section 4.3 Limitation on Liens. The Corporation shall not, and shall
not permit any Restricted Subsidiary to, incur a Lien on Restricted Property to
secure a Debt unless:
(1) the Lien equally and ratably secures the Securities and
the Debt. The Lien may equally and ratably secure the Securities and
any other obligation of the Corporation or a Subsidiary. The Lien may
not secure an obligation of the Corporation that is subordinated to any
Securities; or
(2) the Lien is on property, Debt or shares of stock of a
corporation at the time such corporation becomes a Restricted
Subsidiary; or
(3) the Lien is on property at the time the Corporation or a
Restricted Subsidiary acquires the property. However, the Lien may not
extend to any other Restricted Property owned by the Corporation or a
Restricted Subsidiary at the time the property is acquired; or
(4) the Lien secures Debt incurred to finance all or some of
the purchase price or cost of construction of property of the
Corporation or a Restricted Subsidiary. The Lien may not extend to any
other Restricted Property owned by the Corporation or a Restricted
Subsidiary at the time the Lien is incurred. However, in the case of
any construction the Lien related to the construction may extend to
unimproved real property. The Debt secured by the Lien may not be
incurred more than one year after the later of the acquisition,
completion of construction or commencement of full operation of the
property subject to the Lien; or
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(5) the Lien secures Debt of a Restricted Subsidiary owed to
the Corporation or another Restricted Subsidiary; or
(6) the Lien is on property of a corporation at the time such
corporation merges into, or consolidates or enters into a share
exchange with, the Corporation or a Restricted Subsidiary; or
(7) the Lien is on property of a person at the time the person
transfers or leases all or substantially all its assets to the
Corporation or a Restricted Subsidiary; or
(8) the Lien is in favor of a government or governmental
entity and
(A) secures payment pursuant to a contract, subcontract,
statute or regulation; or
(B) secures Debt which is guaranteed by the government or
governmental entity; or
(C) secures Debt incurred to finance all or some of
the purchase price or cost of construction of goods, products
or facilities produced under contract or subcontract for the
government or governmental entity; or
(D) secures Debt incurred to finance all or some of the
purchase price or cost of construction of the property
subject to the Lien; or
(9) the Lien arises pursuant to any order of attachment,
distraint or similar legal process arising in connection with court
proceedings so long as the execution or other enforcement thereof is
effectively stayed and the claims secured thereby are being contested
in good faith by appropriate proceedings; or
(10) as to any particular series of Securities, the Lien
extends, renews or replaces in whole or in part a Lien ("existing
Lien") permitted by any of the clauses (1) through (9) or a Lien
existing on the date that Securities of such series are first issued.
The Lien may not extend beyond the property subject to the existing
Lien. The Debt secured by the Lien may not exceed the Debt secured at
the time by the existing Lien unless the existing Lien or a predecessor
Lien was incurred under clause (1) or (5); or
(11) the Debt secured by the Lien plus all other Debt secured
by Liens on Restricted Property, excluding Debt secured by a Lien
permitted by any of the clauses (1) through (10) and any Debt secured
by a Lien existing at the date of this Indenture, at the time does not
exceed 10% of Consolidated Net Tangible Assets. Attributable Debt for
any lease entered into under clause (4) of Section 4.4 shall be
included in the determination and treated as Debt secured by a Lien on
Restricted Property not otherwise permitted by any of the clauses (1)
through (10).
Section 4.4 Limitation on Sale-Leaseback Transactions. The Corporation
shall not, and shall not permit any Restricted Subsidiary to, enter into a
Sale-Leaseback Transaction unless:
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(1) the lease has a term of three years or less; or
(2) the lease is between the Corporation and a Restricted
Subsidiary or between Restricted Subsidiaries; or
(3) the Corporation or a Restricted Subsidiary under clauses
(2) through (10) of Section 4.3 could create a Lien on the property to
secure Debt at least equal in amount to the Attributable Debt for the
lease; or
(4) the Corporation or a Restricted Subsidiary under clause
(11) of Section 4.3 could create a Lien on the property to secure Debt
at least equal in amount to the Attributable Debt for the lease; or
(5) the Corporation owns or acquires other property which will
be made a Principal Property and is determined by the Board of
Directors of the Corporation to have a fair value equal to or greater
than the Attributable Debt incurred; or
(6) within 270 days the Corporation makes Capital Expenditures
with respect to a Principal Property in an amount at least equal to the
amount of the Attributable Debt incurred; or
(7) (A) the Corporation or a Restricted Subsidiary makes an
optional prepayment in cash of its Debt or capital lease
obligations at least equal in amount to the Attributable Debt
for the lease;
(B) the prepayment is made within 270 days of the
effective date of the lease;
(C) the Debt prepaid is not owned by the Corporation or a
Restricted Subsidiary;
(D) the Debt prepaid is not subordinated to any of the
Securities; and
(E) the Debt prepaid was Long-Term Debt at the time it
was created.
Section 4.5 No Lien Created, etc. This Indenture and the Securities do
not create a Lien, charge or encumbrance on any property of the Corporation or
any Subsidiary.
Section 4.6 Compliance Certificate. The Corporation shall deliver to
the Trustee within 120 days after the end of each fiscal year of the Corporation
an Officers' Certificate stating whether or not the signers know of any default
by the Corporation in performing its covenants in Section 4.3 or 4.4. If they do
know of such a default, the certificate shall describe the default. The
certificate need not comply with Section 10.5.
Section 4.7 SEC Reports. The Corporation shall file with the Trustee
within 15 days after it files them with the SEC copies of the annual reports and
of the information, documents and other reports (or copies of such portions of
any of the foregoing as the SEC may by rules and
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regulations prescribe) which the Corporation is required to file with the SEC
pursuant to Section 13 or Section 15(d) of the Exchange Act. The Corporation
also shall comply with the other provisions of TIA ss. 314(a).
Section 4.8 Rule 144A Information Requirement. If at any time the
Corporation is no longer subject to Section 13 or 15(d) of the Exchange Act, the
Corporation will furnish to the Holders or beneficial holders of the Rule 144A
Securities and prospective purchasers of Rule 144A Securities designated by the
holders of such Securities, upon their request, information required to be
delivered pursuant to Rule 144A(d)(4) under the Securities Act.
ARTICLE 5.
SUCCESSOR CORPORATION
Section 5.1 When the Corporation May Merge, etc. The Corporation shall
not consolidate with or merge into, or transfer all or substantially all its
assets to another corporation, unless (1) the resulting, surviving or transferee
corporation assumes by supplemental indenture all the obligations of the
Corporation under the Securities and this Indenture, (2) immediately after
giving effect to such transaction no Event of Default and no circumstances
which, after notice or lapse of time or both, would become an Event of Default,
shall have happened and be continuing, and (3) the Corporation shall have
delivered to the Trustee an Officers' Certificate and an Opinion of Counsel,
each stating that such consolidation, merger or transfer and such supplemental
indenture comply with this Indenture, and thereafter all such obligations of the
Corporation shall terminate.
Section 5.2 When Securities Must Be Secured. If upon any such
consolidation, merger or transfer a Restricted Property would become subject to
an attaching Lien that secures Debt, then, before the consolidation, merger or
transfer occurs, the Corporation by supplemental indenture shall secure the
Securities by a direct lien on the Restricted Property. The direct Lien shall
have priority over all Liens on the Restricted Property except those already on
it. The direct Lien may equally and ratably secure the Securities and any other
obligation of the Corporation or a Subsidiary. However, the Corporation need not
comply with this Section if:
(1) upon the consolidation, merger or transfer the attaching
Lien will secure the Securities, equally and ratably with or prior to
Debt secured by the attaching Lien; or
(2) the Corporation or a Restricted Subsidiary under any of
the clauses (2) through (11) of Section 4.3 could create a Lien on the
Restricted Property to secure Debt at least equal in amount to that
secured by the attaching Lien.
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ARTICLE 6.
DEFAULTS AND REMEDIES
Section 6.1 Events of Default. An "Event of Default" occurs with
respect to a series of Securities if:
(1) the Corporation defaults in the payment of interest on any
Security of that series when the same becomes due and payable and the
default continues for a period of 30 days;
(2) the Corporation defaults in the payment of the principal
of any Security of that series when the same becomes due and payable at
maturity, upon redemption or otherwise;
(3) the Corporation fails to comply with any of its other
agreements in the Securities of that series or this Indenture for the
benefit of that series and the default continues for the period and
after the notice specified in this Section;
(4) the Corporation pursuant to or within the meaning of any
Bankruptcy Law:
(A) commences a voluntary case,
(B) consents to the entry of an order for relief against
it in an involuntary case,
(C) consents to the appointment of a Custodian of it or
for all or substantially all of its property, or
(D) makes a general assignment for the benefit of its
creditors;
(5) a court of competent jurisdiction enters an order or
decree under any Bankruptcy Law that:
(A) is for relief against the Corporation in an
involuntary case,
(B) appoints a Custodian of the Corporation or for all
or substantially all of the property of the Corporation, or
(C) orders the winding up or liquidation of the
Corporation,
and the order or decree remains unstayed and in effect for 60 days; or
(6) there occurs any other event specifically described as an
Event of Default by the Securities of that series.
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The term "Bankruptcy Law" means Xxxxx 00, Xxxxxx Xxxxxx Code or any
similar Federal or state law for the relief of debtors. The term "Custodian"
means any receiver, trustee, assignee, liquidator, custodian or similar official
under any Bankruptcy Law.
A default under clause (3) is not an Event of Default with respect to a
series of Securities until the Trustee or the Holders of at least 25% in
principal amount of the Securities of that series notify the Corporation of the
default and the Corporation does not cure the default within 90 days after
receipt of the notice. The notice must specify the default, demand that it be
remedied and state that the notice is a "Notice of Default." Subject to Sections
7.1 and 7.2, the Trustee shall not be charged with knowledge of any default, or
of the delivery to the Corporation of a notice of default by any Holder, unless
written notice thereof shall have been given to the Trustee by the Corporation,
the Paying Agent, the Holder of a Security or an agent of such Holder.
Section 6.2 Acceleration. If an Event of Default with respect to a
series of Securities occurs and is continuing, the Trustee, by notice to the
Corporation, or the Holders of at least 25% in principal amount of the
Securities of that series by notice to the Corporation and the Trustee, may
declare the principal (or, in the case of Discounted Securities, such amount of
principal as may be provided for in such Securities) of and accrued interest on
all the Securities of that series to be due and payable immediately. Upon a
declaration such principal and interest shall be due and payable immediately.
The Holders of a majority in principal amount of the Securities of any series by
notice to the Trustee may rescind an acceleration (and upon such rescission any
Event of Default caused by such acceleration shall be deemed cured) with respect
to that series and its consequences if all existing Events of Default with
respect to the series have been cured or waived, if the rescission would not
conflict with any judgment or decree, and if all payments due to the Trustee and
any predecessor Trustee under Section 7.7 have been made.
Section 6.3 Other Remedies. If an Event of Default with respect to a
series of Securities occurs and is continuing, the Trustee may pursue any
available remedy by proceeding at law or in equity to collect the payment of
principal of (or, in the case of Discounted Securities, such amount of principal
as may be provided for in such Securities) or interest on the Securities of that
series or to enforce the performance of any provision of such 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 acquiescence in the Event of Default. No remedy is
exclusive of any other remedy. All available remedies are cumulative to the
extent permitted by law.
Section 6.4 Waiver of Past Defaults. Subject to Section 9.2, the
Holders of a majority in principal amount of the Securities of a series by
notice to the Trustee may waive an existing Default or Event of Default with
respect to that series and its consequences. When a Default or Event of Default
is waived, it is cured and stops continuing, but no such waiver shall extend to
any subsequent or other Default or Event of Default or impair any right
consequent thereto.
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Section 6.5 Control by Majority. The Holders of a majority in principal
amount of the Securities of a series may direct the time, method and place of
conducting any proceeding for any remedy available to the Trustee or of
exercising any trust of power conferred on it with respect to that series.
However, the Trustee may refuse to follow any direction that conflicts with law
or this Indenture, or, subject to Section 7.1, that the Trustee determines is
unduly prejudicial to the rights of other Holders of Securities of the same
series or would involve the Trustee in personal liability.
Section 6.6 Limitation on Suits. No Holder of a Security of any series
may pursue any remedy with respect to this Indenture or the Securities unless:
(1) the Holder gives to the Trustee written notice stating
that an Event of Default with respect to the Securities of the series
is continuing;
(2) the Holders of at least 25% in principal amount of the
Securities of that series make a written request to the Trustee to
pursue the remedy;
(3) such Holder or Holders offer to the Trustee indemnity
satisfactory to the Trustee against any loss, liability or expense;
(4) the Trustee does not comply with the request within 60
days after receipt of the request and the offer of indemnity; and
(5) during such 60-day period the Holders of a majority in
principal amount of the Securities of that series do not give the
Trustee a direction inconsistent with the request.
A Securityholder may not use this Indenture to prejudice the rights of
another Securityholder or to obtain a preference or priority over the other
Securityholder.
Section 6.7 Rights of Holders to Receive Payment. Notwithstanding any
other provision of this Indenture, the right of any Holder to receive payment of
principal of and interest on the Security on or after the respective due dates
expressed in the Security, or to bring suit for the enforcement of any such
payment on or after such respective date, shall not be impaired or affected
without the consent of the Holder.
Section 6.8 Collection Suit by Trustee. If an Event of Default in
payment of interest or principal specified in Section 6.1(1) or (2) occurs and
is continuing, the Trustee may recover judgment in its own name and as trustee
of an express trust against the Corporation for the whole amount of principal
and interest remaining unpaid.
Section 6.9 Trustee May File Proofs of Claim. The Trustee may file such
proofs of claim and other papers or documents as may be necessary or advisable
in order to have the claims of the Trustee and the Securityholders allowed in
any judicial proceedings relative to the Corporation, or any of its creditors or
property, and unless prohibited by law or applicable regulations, may vote on
behalf of the Holders in any election of a trustee in bankruptcy or other person
performing similar functions.
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Section 6.10 Priorities. If the Trustee collects any money pursuant to
this Article with respect to the Securities of any series, it shall pay out the
money in the following order:
First: to the Trustee for amounts due under Section 7.7;
Second: to Holders of Securities of that series for amounts due and
unpaid on such Securities for principal and interest, ratably, without
preference or priority of any kind, according to the amounts due and
payable on such Securities for principal and interest, respectively;
and
Third: to the Corporation.
The Trustee may fix a record date and payment date for any payment to
Securityholders pursuant to this Section.
Section 6.11 Undertaking for Costs. In any suit for the enforcement of
any right or remedy under this Indenture or in any suit against the Trustee for
any action taken or omitted by it as Trustee, a court in its discretion may
require the filing by any party litigant in the suit other than the Trustee of
an undertaking to pay the costs of the suit, and the court in its discretion may
assess reasonable costs, including reasonable attorneys' fees, against any party
litigant in the suit including the Trustee, 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 a Holder pursuant to Section
6.7 or a suit by Holders of more than 10% in principal amount of the Securities
of any series.
ARTICLE 7.
TRUSTEE
Section 7.1 Duties of Trustee.
(a) If an Event of Default has occurred and is continuing, the Trustee
shall with respect to Securities exercise its rights and powers and use the same
degree of care and skill in their exercise as a prudent man would exercise or
use under the circumstances in the conduct of his own affairs.
(b) Except during the continuance of an Event of Default:
(1) the Trustee need perform only those duties that are
specifically set forth in this Indenture and no others; 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,
notices or opinions furnished to the Trustee and conforming to the
requirements of this Indenture. However, the Trustee shall examine the
certificates,
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notices and opinions to determine whether or not they conform to the
requirements of this Indenture.
(c) The Trustee may not be relieved from liability for its own
negligent action, its own negligent failure to act or its own willful misconduct
except that:
(1) this 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 6.5;
(d) Every provision of this Indenture that in any way relates to the
Trustee is subject to paragraphs (a), (b) and (c) of this Section;
(e) The Trustee may refuse to perform any duty or exercise any right or
power unless it receives indemnity satisfactory to it against any loss,
liability or expense.
(f) The Trustee shall not be liable for interest on any money received
by it except as the Trustee may agree with the Corporation.
Section 7.2 Rights of Trustee.
(a) Subject to Section 7.1, the Trustee may 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 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.
Section 7.3 Individual Rights of Trustee, etc. The Trustee in its
individual or any other capacity may become the owner or pledgee of Securities
and may otherwise deal with the Corporation or any of its affiliates with the
same rights it would have if it were not Trustee. Any Agent may do the same with
like rights. However, the Trustee must comply with Sections 7.10 and 7.11.
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Section 7.4 Trustee's Disclaimer. The Trustee makes no representations
as to the validity or adequacy of this Indenture or the Securities, it shall not
be accountable for the Corporation's use of the proceeds from the Securities,
and it shall not be responsible for any statement in the Securities other than
its certificate of authentication.
Section 7.5 Notice of Defaults. If a Default occurs with respect to a
series of Securities and is continuing and if it is known to the Trustee, the
Trustee shall mail to each Holder of Securities of that series notice of the
Default within 90 days after it occurs. Except in the case of a default in
payment on any Security, the Trustee may withhold the notice if and so long as a
committee of its Trust Officers determines in good faith that withholding the
notice is in the interests of such Holders.
Section 7.6 Reports by Trustee to Holders. If required pursuant to TIA
ss. 313(a), the Trustee, within 60 days after each May 15, shall mail to each
Securityholder a brief report dated as of May 15 that complies with TIA ss.
313(a). The Trustee also shall comply with the reporting obligations of TIA ss.
313(b).
A copy of each report at the time of its mailing to Securityholders
shall be filed with the SEC and each stock exchange on which the Securities are
listed. The Corporation agrees to notify the Trustee whenever the Securities
become listed on any stock exchange.
Section 7.7 Compensation and Indemnity. The Corporation shall pay to
the Trustee from time to time reasonable compensation for its services. The
Corporation shall reimburse the Trustee upon request for all reasonable
out-of-pocket expenses incurred by it. Such expenses shall include the
reasonable compensation and expenses of the Trustee's agents and counsel. The
Corporation shall indemnify the Trustee against any loss or liability incurred
by it in connection with the administration of this trust and its duties
hereunder. The Trustee shall notify the Corporation promptly of any claim for
which it may seek indemnity. The Corporation need not pay for any settlement
made without its consent. The Corporation need not reimburse any expense or
indemnify against any loss or liability incurred by the Trustee through
negligence or bad faith.
To secure the Corporation's payment obligations in this Section, the
Trustee shall have a senior claim to which the Securities are hereby made
subordinate on all money or property held or collected by the Trustee, except
that held in trust to pay principal of and interest on particular Securities.
When the Trustee incurs expenses or renders services after an Event of
Default specified in Section 6.1(4) or (5) occurs, the expenses and the
compensation for the services are intended to constitute expenses of
administration under any Bankruptcy Law.
Section 7.8 Replacement of Trustee. The Trustee may resign with respect
to the Securities of one or more series by so notifying the Corporation. The
Holders of a majority in principal amount of the Securities of any series may
remove the Trustee with respect to that series by so notifying the removed
Trustee and may appoint a successor Trustee with the Corporation's consent. The
Corporation may remove the Trustee if:
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(1) the Trustee fails to comply with Section 7.10;
(2) the Trustee is adjudged a bankrupt or an 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 or if a vacancy exists in the
office of trustee for any reason, the Corporation shall promptly appoint a
successor Trustee.
A successor Trustee shall deliver a written acceptance of its
appointment to the retiring Trustee and to the Corporation. Immediately after
that, the retiring Trustee shall transfer all property held by it as Trustee for
the benefit of the series with respect to which it is retiring to the successor
Trustee, the resignation or removal of the retiring Trustee shall then become
effective, and the successor Trustee shall have all the rights, powers and
duties of the Trustee under this Indenture with respect to that series. A
successor Trustee shall mail notice of its succession to each Holder of the
Securities of the series affected.
If pursuant to Section 2.3(5) a trustee, other than the Trustee
initially named in this Indenture (or any successor thereto), is appointed with
respect to one or more series of Securities, the Corporation, the Trustee
initially named in this Indenture (or any successor thereto) and such newly
appointed trustee shall execute and deliver a supplement to this Indenture which
shall contain such provisions as shall be necessary or desirable to confirm that
all the rights, powers, trusts and duties of the Trustee initially named in this
Indenture (or any successor thereto) with respect to the Securities of any
series as to which the Trustee is continuing as trustee hereunder shall continue
to be vested in the Trustee initially named in this Indenture (or any successor
thereto), and shall add to, supplement or change any of the provisions of this
Indenture as shall be necessary or desirable to provide for or facilitate the
administration of the trusts hereunder by more than one trustee, it being
understood that nothing herein or in such supplemental indenture shall
constitute such trustees co-trustees of the same trust and that each such
trustee shall be trustee of a trust or trusts relating to the separate series of
Securities as if it were acting under a separate indenture.
If a successor Trustee with respect to a series of Securities does not
take office within 60 days after the retiring Trustee resigns or is removed, the
retiring Trustee, the Corporation or the Holders of a majority in principal
amount of the Securities of that series may petition any court of competent
jurisdiction for the appointment of a successor Trustee.
If the Trustee with respect to a series of Securities fails to comply
with Section 7.10, any Holder of Securities of that series may petition any
court of competent jurisdiction for the removal of the Trustee and the
appointment of a successor Trustee.
If there are two or more Trustees at any time under this Indenture,
each will be the Trustee of a separate trust held under this Indenture for the
benefit of the series of Securities for
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which it is acting as Trustee and the rights and obligations of each Trustee
will be determined as if it were acting under a separate indenture.
Section 7.9 Successor Trustee by Merger, etc. If the Trustee
consolidates with, merges or converts into or transfers all or substantially all
its corporate trust assets to another corporation, the resulting, surviving or
transferee corporation without any further act shall be the successor Trustee.
Section 7.10 Eligibility; Disqualification. This Indenture shall always
have a Trustee that satisfies the requirements of TIA ss. 310(a). The Trustee
shall have a combined capital and surplus of at least $5,000,000 as set forth in
its most recent published annual report of condition. The Trustee shall comply
with TIA ss. 310(b), provided that the question whether the Trustee has a
conflicting interest shall be determined as if each series of Securities were
separate issues of securities issued under separate indentures.
Section 7.11 Preferential Collection of Claims Against Corporation. 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 therein.
ARTICLE 8.
SATISFACTION, DISCHARGE AND DEFEASANCE
Section 8.1 Satisfaction and Discharge Under Limited Circumstances. If
at any time (a) all Securities of a series previously authenticated (other than
any Securities destroyed, lost or stolen and replaced or paid as provided in
Section 2.10) shall have been delivered to the Trustee for cancellation, or (b)
all the Securities of a series not previously delivered to the Trustee for
cancellation shall have become due and payable, the Corporation has deposited or
caused to be deposited with the Trustee as trust funds the entire amount (other
than moneys paid to the Corporation in accordance with Section 8.5) sufficient
to pay at maturity or upon redemption all Securities of that series not
previously delivered to the Trustee for cancellation, including principal and
interest due, and if, in either case, the Corporation shall also pay all other
sums then payable under this Indenture by the Corporation, then this Indenture
shall cease to be of further effect with respect to Securities of that series,
and the Trustee, on demand of and at the cost and expense of the Corporation,
shall execute proper instruments acknowledging satisfaction of and discharging
this Indenture with respect to Securities of that series. The Corporation will
reimburse the Trustee for any subsequent costs or expenses reasonably and
properly incurred by the Trustee in connection with this Indenture or the
Securities.
Section 8.2 Satisfaction and Discharge of Indenture. The Corporation
may take any action provided for in this Section unless the Securities of the
affected series specifically provide that this Section shall not apply to the
series. The Corporation at any time at its option may terminate all of its
obligations under the Securities of a series previously authenticated and its
obligations under this Indenture with respect to such series (except as provided
below), and the
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Trustee, at the expense of the Corporation, shall, upon the request of the
Corporation, execute proper instruments acknowledging satisfaction of and
discharging this Indenture with respect to Securities of that series, effective
on the date the following conditions are satisfied:
(1) with reference to this Section, the Corporation has
deposited or caused to be deposited with the Trustee, as trust funds in
trust, specifically pledged as security for and dedicated solely to the
benefit of the Holders of the Securities of that series, (a) lawful
money, in the currency or currencies in which Securities of that series
are payable, in an amount, or (b) if the Securities of that series are
payable in U.S. dollars, U.S. Government Obligations which through the
payment of interest and principal in respect thereof in accordance with
their terms (and, as to callable U.S. Government Obligations,
regardless of when they are called) will provide not later than the
opening of business on the due dates of any payment of the principal of
and any interest on the Securities of that series lawful money of the
United States in an amount, or (c) Securities of that series, or (d) a
combination thereof, sufficient to pay and discharge the principal of
and interest on the Securities of that series on the date on which such
payments are due and payable in accordance with the terms of this
Indenture and of the Securities of that series and 91 days have passed
during which no Event of Default under Section 6.1(4) or 6.1(5) has
occurred;
(2) if the Securities of that series are then listed on any
national securities exchange, the Corporation shall have delivered to
the Trustee an Opinion of Counsel to the effect that such deposit,
defeasance and discharge will not cause such Securities to be delisted;
and
(3) the Corporation has delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, complying with Section 10.4
relating to the Corporation's exercise of such option.
The trust established pursuant to subsection (1) above shall be
irrevocable and shall be made under the terms of an escrow trust agreement in
form and substance satisfactory to the Trustee. The escrow trust agreement may,
at the Corporation's election, grant the Corporation the right to substitute
U.S. Government Obligations or Securities of the same series from time to time
for any or all of the U.S. Government Obligations deposited with the Trustee
pursuant to this Section and the escrow trust agreement; provided, however, that
the condition specified in subsection (1) above is satisfied immediately
following any such substitution or substitutions. If any Securities of a series
are to be redeemed prior to their stated maturity pursuant to optional
redemption provisions the applicable escrow trust agreement shall provide
therefor and the Corporation shall make such arrangements as are satisfactory to
the Trustee for the giving of notice of redemption by the Trustee in the name,
and at the expense, of the Corporation.
Upon the satisfaction of the conditions set forth in this Section with
respect to the Securities, the terms and conditions of the Securities, including
the terms and conditions with respect thereto set forth in this Indenture, shall
no longer be binding upon, or applicable to, the Corporation.
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Notwithstanding the satisfaction and discharge of this Indenture, the
obligations of the Corporation under Sections 2.4, 2.5, 2.6, 2.7, 2.8, 2.9,
2.10, 2,12, 7.7 and 7.8 with respect to the Securities of that series shall
survive until the Securities of that series are no longer outstanding.
Thereafter, the Corporation's obligations in Section 7.7 shall survive.
"U.S. Government Obligations" means the following obligations:
(1) direct obligations of the United States for the payment
of which its full faith and credit is pledged; or
(2) obligations of a person controlled or supervised by and
acting as an agency or instrumentality of the United States the payment
of which is unconditionally guaranteed as a full faith and credit
obligation by the United States.
Section 8.3 Defeasance of Certain Obligations. The Corporation may take
any action provided for in this Section unless the Securities of the affected
series specifically provide that this Section shall not apply to the series. The
Corporation at any time at its option may cease to be under any obligation to
comply with Sections 4.3, 4.4, 4.6, 5.1 and 5.2 with respect to Securities of a
series effective on the date the following conditions are satisfied:
(1) with reference to this Section, the Corporation has
deposited or caused to be deposited with the Trustee irrevocably, as
trust funds in trust, specifically pledged as security for and
dedicated solely to the benefit of the Holders of the Securities of
that series, (a) lawful money, in the currency or currencies in which
Securities of that series are payable, in an amount, or (b) if the
Securities of that series are payable in U.S. dollars, U.S. Government
Obligations which through the payment of interest and principal in
respect thereof in accordance with their terms (and, as to callable
U.S. Government Obligations, regardless of when they are called) will
provide not later than the opening of business on the due dates of any
payment of principal of and interest on the Securities of that series
lawful money of the United States in an amount, or (c) Securities of
that issue, or (d) a combination thereof, sufficient to pay and
discharge the principal of and interest on the Securities of that
series on the day on which such payments are due and payable in
accordance with the terms of this Indenture and of the Securities of
that series; and
(2) the Corporation has delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel complying with Section 10.4
relating to the Corporation's exercise of such option.
The trust established pursuant to subsection (1) above shall be
irrevocable and shall be made under the terms of an escrow trust agreement in
form and substance satisfactory to the Trustee. The escrow trust agreement may,
at the Corporation's election, grant the Corporation the right to substitute
U.S. Government Obligations or Securities of the same series from time to time
for any or all of the U.S. Government Obligations deposited with the Trustee
pursuant to this Section and the escrow trust agreement; provided, however, that
the condition specified in subsection (1) above is satisfied immediately
following any such substitution or substitutions. If any Securities of a series
are to be redeemed prior to their stated maturity pursuant to optional
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redemption provisions the applicable escrow trust agreement shall provide
therefor and the Corporation shall make such arrangements as are satisfactory to
the Trustee for the giving of notice of redemption by the Trustee in the name,
and at the expense, of the Corporation.
The Corporation's exercise of its option under this Section shall not
preclude the Corporation from subsequently exercising its option under Section
8.2 hereof and the Corporation may so exercise that option by providing the
Trustee with written notice to such effect.
Section 8.4 Application of Trust Money. The Trustee shall hold in trust
money, U.S. Government Obligations, and Securities of that series deposited with
it pursuant to Sections 8.1, 8.2 or 8.3. It shall apply the deposited money and
U.S. Government Obligations through the Paying Agent and in accordance with this
Indenture, to the payment of principal and interest on the Securities of the
series for the payment of which such money and U.S. Government Obligations has
been deposited. The Holder of any Security replaced pursuant to Section 2.8
shall not be entitled to any such payment and shall look only to the Corporation
for any payment which such Holder may be entitled to collect. In connection with
the satisfaction and discharge of this Indenture or the defeasance of certain
obligations under this Indenture with respect to Securities of a series pursuant
to Section 8.2 or Section 8.3 hereof, respectively, the escrow trust agreement
may, at the Corporation's election, (1) enable the Corporation to direct the
Trustee to invest any money received by the Trustee on the U.S. Government
Obligations deposited in trust thereunder in additional U.S. Government
Obligations and (2) enable the Corporation to withdraw monies or U.S. Government
Obligations from the trust from time to time; provided, however, that the
condition specified in Section 8.2(1) or 8.3(1) is satisfied immediately
following any investment of such money by the Trustee or the withdrawal of
monies or U.S. Government Obligations from the trust by the Corporation as the
case may be.
Section 8.5 Repayment to Corporation. The Trustee and the Paying Agent
shall promptly pay to the Corporation upon request any excess money or
securities held by them at any time. The Trustee and the Paying Agent shall pay
to the Corporation upon request any money held by them for the payment of
principal or interest that remains unclaimed for two years.
ARTICLE 9.
AMENDMENTS, SUPPLEMENTS AND WAIVERS
Section 9.1 Without Consent of Holders. The Corporation may amend or
supplement this Indenture or the Securities of any series without notice to or
consent of any Securityholder:
(1) to cure any ambiguity, omission, defect or inconsistency;
(2) to comply with Article 5;
(3) to provide for uncertificated Securities in addition to
or in place of certificated Securities;
(4) to effectuate or comply with the provisions of Section
2.3(5) or 7.8;
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(5) to make any change that does not materially adversely
affect the rights of any Holder of any Security of that series; or
(6) to add or change or eliminate any provisions of this
Indenture as shall be necessary or desirable in accordance with any
amendments to the TIA.
The Trustee may waive compliance by the Corporation with any provision
of this Indenture or the Securities of any series without notice to or consent
of any Securityholder if the waiver does not materially adversely affect the
rights of any Holder of any Securities of that series.
Section 9.2 With Consent of Holders. The Corporation may amend or
supplement this Indenture or the Securities without notice to any Securityholder
but with the written consent of the Holders of not less than a majority in
principal amount of the Securities of each series affected and the Trustee shall
execute any such amendment or supplement at the direction of the Corporation.
The Holders of a majority in principal amount of the Securities of each series
affected may waive compliance by the Corporation with any provision of this
Indenture or the Securities of each such series without notice to any
Securityholder. However, without the consent of each Securityholder affected, an
amendment, supplement or waiver, including a waiver pursuant to Section 6.4, may
not:
(1) reduce the amount of Securities of any series whose
Holders must consent to an amendment, supplement or waiver;
(2) reduce the rate of or extend the time for payment of
interest on any Security;
(3) reduce the principal of or extend the fixed maturity of
any Security;
(4) reduce the portion of the principal amount of a
Discounted Security payable upon acceleration of its maturity; or
(5) make any Security payable in money other than that stated
in the Security.
It shall not be necessary for any Act of Holders under this Section to approve
the particular form of any proposed supplement or amendment, but it shall be
sufficient if such Act shall approve the substance thereof.
Section 9.3 Compliance with Trust Indenture Act of 1939. Every
amendment to or supplement of this Indenture or the Securities shall comply with
the TIA as then in effect.
Section 9.4 Revocation and Effect of Consents. A consent to an
amendment, supplement or waiver by a Holder of a Security 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 is not made on the Security. However, any such Holder or subsequent
Holder may revoke the consent as to his Security or portion of the
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Security. The Trustee must receive the notice of revocation before the date the
amendment, supplement or waiver becomes effective.
After an amendment, supplement or waiver becomes effective, it shall
bind every Securityholder unless it makes a change described in clauses (2),
(3), (4) or (5) of Section 9.2. In that case, the amendment, supplement or
waiver shall bind each Holder of a Security who has consented to it and every
subsequent Holder of a Security or portion of a Security that evidences the same
debt as the consenting Holder's Security.
Section 9.5 Notation on or Exchange of Securities. If an amendment,
supplement or waiver 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 about the changed terms and return it to
the Holder, Alternatively, if the Corporation or the Trustee so determine, the
Corporation in exchange for the Security shall issue and the Trustee shall
authenticate a new Security that reflects the changed terms.
Section 9.6 Trustee to Sign Amendments, etc. The Trustee shall sign any
amendment, supplement or waiver authorized pursuant to this Article if the
amendment, supplement or waiver 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, supplement or waiver the Trustee shall
be entitled to receive, and (subject to Section 7.1) shall be fully protected in
relying upon, an Opinion of Counsel stating that such amendment, supplement or
waiver is authorized or permitted by this Indenture. The Corporation shall not
sign an amendment or supplement unless authorized by an appropriate Board
Resolution.
ARTICLE 10.
MISCELLANEOUS
Section 10.1 TIA 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 required provision shall control.
Section 10.2 Notices. Any notice or communication shall be
sufficiently given if in writing and delivered in person or mailed by
first-class mail addressed as follows:
if to the Corporation:
Xxxxxx Xxxxxxxx Materials, Inc.
Attention: Chief Financial Officer
0000 Xxxxxxx Xxxx
Xxxxxxx, Xxxxx Xxxxxxxx 00000
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if to the Trustee:
First Union National Bank
Attention: Corporate Trust
000 Xxxxx Xxxxx Xxxxxx, 0xx Xxxxx
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000-0000
The Corporation 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 of 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 Corporation, 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 Corporation to the Trustee to take any action
under this Indenture, the Corporation shall furnish to the Trustee:
(1) an Officers' Certificate 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 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 condition or covenant
provided for in this Indenture shall include:
(1) a statement that the person making such certificate
or opinion has read such covenant or condition;
(2) a brief statement as to the nature and scope of the
examination or investigation upon which the statements or opinions
contained in such certificate or opinion are based;
44
51
(3) a statement that, in the opinion of such person, the
person has made such examination or investigation as is necessary to
enable the person to express an informed opinion as to whether such
covenant or condition has been complied with;
(4) a statement as to whether or not, in the opinion of
such person, such condition or covenant has been complied with.
Section 10.6 When Treasury Securities Disregarded. In determining
whether the Holders of the required principal amount of Securities have
concurred in any direction, waiver or consent, Securities owned by the
Corporation or by any person directly or indirectly controlling or controlled by
or under direct or indirect common control with the Corporation, shall be
disregarded, except that for the purpose of determining whether the Trustee
shall be protected in relying on any such direction, waiver or consent, only
Securities which the Trustee knows are so owned shall be so disregarded. Also,
subject to the foregoing, only Securities outstanding at the time shall be
considered in any such determination.
Section 10.7 Rules by Trustee, Paying Agent, Registrar. The Trustee may
make reasonable rules for action by or a meeting of Securityholders. The Paying
Agent or Registrar may make reasonable rules for its functions.
Section 10.8 Legal Holidays. A "Legal Holiday" is a Saturday, a Sunday,
a legal holiday or a day on which banking institutions are not required to be
open. If a payment date is a Legal Holiday at a place of payment, payment shall
be made at that place on the next succeeding day that is not a Legal Holiday,
and no interest shall accrue for the intervening period. If a regular record
date is a Legal Holiday in the state or other jurisdiction in which the Trustee
maintains its principal place of business, then the record date shall be the
next succeeding day that is not a Legal Holiday in such state or other
jurisdiction.
Section 10.9 Governing Law. The laws of the State of New York shall
govern this Indenture and the Securities.
Section 10.10 No Adverse Interpretation of Other Agreements. This
Indenture may not be used to interpret another indenture, loan or debt agreement
of the Corporation or any Subsidiary. Any such indenture, loan or debt agreement
may not be used to interpret this Indenture.
Section 10.11 No Recourse Against Others. A director, officer, employee
or stockholder, as such, of the Corporation shall not have any liability for any
obligation of the Corporation under the Securities or the Indenture or for any
claim based on, with respect to or by reason of such obligations or their
creation. All such liability is waived and released as a condition of, and as
partial consideration for, the execution of this Indenture and the issue of the
Securities.
Section 10.12 Securities in a Foreign Currency. Unless otherwise
specified in an Officers' Certificate delivered pursuant to Section 2.1 of this
Indenture with respect to a particular series of Securities, whenever for
purposes of this Indenture any action may be taken by the holders of a specified
percentage in aggregate principal amount of Securities of all series at the
45
52
time outstanding and, at such time, there are outstanding Securities of any
series which are denominated in a Foreign Currency, then the principal amount
of Securities of such series which shall be deemed to be outstanding for the
purpose of taking such action shall be that amount of U.S. dollars that could
be obtained for such amount at the Market Exchange Rate on the record date
fixed for such action or, if no record date is fixed, on the New York Banking
Day immediately preceding the date of such action.
Section 10.13 Judgment Currency. If, for the purpose of obtaining a
judgment in any court with respect to any obligation of the Corporation
hereunder or under any Security, it shall become necessary to convert into any
other currency or ECU any amount in the currency or ECU due hereunder or under
such Security, then such conversion shall be made by the Trustee (a) with
respect to conversions between any Foreign Currency and U.S. dollars at the
Market Exchange Rate as in effect on the date of entry of the judgment (the
"Judgment Date"), (b) with respect to conversions between any currency and ECU
at the Official Exchange Rate as in effect on the Judgment Date, and (c) with
respect to conversions of any Foreign Currency into any other Foreign Currency
by (i) converting such Foreign Currency into U.S. dollars at the Market Exchange
Rate as in effect on the Judgment Date and (ii) converting the sum of U.S.
dollars so obtained into such other Foreign Currency at the Market Exchange Rate
as in effect on the Judgment Date. If pursuant to any such judgment, conversion
shall be made on a date (the "Substitute Date") other than the Judgment Date and
there shall occur a change between any Market Exchange Rate or Official Exchange
Rate used in such conversion as in effect on the Judgment Date and such Market
Exchange Rate or Official Exchange Rate as in effect on the Substitute Date, the
Corporation agrees to pay such additional amounts, if any, as may be necessary
to ensure that the amount paid is equal to the amount in such other currency or
ECU which, when converted at such Market Exchange Rate or Official Exchange Rate
as in effect on the Judgment Date, is the amount due hereunder or under such
Security. Any amount due from the Corporation under this Section shall be due as
a separate debt and is not to be affected by or merged into any judgment being
obtained for any other sums due hereunder or in respect of any Security. In no
event, however, shall the Corporation be required to pay more in the currency or
ECU due hereunder or under such Security at the Market Exchange Rate or the
Official Exchange Rate as in effect on the Judgment Date than the amount of
currency or ECU stated to be due hereunder or under such Security so that in any
event the Corporation's obligations hereunder or under such Security will be
effectively maintained as obligations in such currency or ECU, and the
Corporation shall be entitled to withhold (or be reimbursed for, as the case may
be) any excess of the amount actually realized upon any such conversion on the
Substitute Date over the amount due and payable on the Judgment Date.
Section 10.14 Successors. All agreements of the Corporation in this
Indenture and the Securities shall bind its successor. All agreements of the
Trustee in this Indenture shall bind its successor.
Section 10.15 Duplicate Originals. The parties may sign any number of
copies of this Indenture. One signed copy is enough to prove this Indenture.
46
53
Section 10.16 Acts of Holders; Record Dates.
(a) Any request, demand, authorization, direction, notice,
consent, waiver or other action provided by this Indenture to be given or taken
by Holders may be embodied in and evidenced by one or more instruments of
substantially similar tenor signed by such Holders in person or by agent duly
appointed in writing; and, except as herein otherwise expressly provided, such
action shall become effective when such instrument or instruments are delivered
to the Trustee and, where it is hereby expressly required, to the Corporation.
Such instrument or instruments (and the action embodied therein and evidenced
thereby) are herein sometimes referred to as the "Act" of the Holders signing
such instrument or instruments. Proof of execution of any such instrument or of
a writing appointing any such agent shall be sufficient for any purpose of this
Indenture and (subject to Section 7.1(e)) conclusive in favor of the Trustee
and the Corporation, if made in the manner provided in this Section.
(b) The fact and date of the execution by any Person of any such
instrument or writing may be proved by the affidavit of a witness of such
execution or by a certificate of a notary public or other officer authorized by
law to take acknowledgements of deeds, certifying that the individual signing
such instrument or writing acknowledged to such officer the execution thereof.
Where such execution is by a signer acting in a capacity other than such
signer's individual capacity, such certificate or affidavit shall also
constitute sufficient proof of such signer's authority. The fact and date of the
execution of any such instrument or writing, or the authority of the Person
executing the same, may also be proved in any other manner which the Trustee
deems sufficient.
(c) The Corporation may, in the circumstances permitted by the
TIA, fix any day as the record date for the purpose of determining the Holders
of Securities of any series entitled to give or take any request, demand,
authorization, direction, notice, consent, wavier or other action, or to vote
on any action, authorized or permitted to be given or taken by Holders of
Securities of such series. If not set by the Corporation prior to the first
solicitation of a Holder of Securities of such series made by any person in
respect of any such action, or, in the case of any such vote, prior to such
vote, the record date for any such action or vote shall be the 30th day (or, if
later, the date of the most recent list of Holders required to be provided
pursuant to Section 2.6) prior to such first solicitation or vote, as the case
may be. With regard to any record date for action to be taken by the Holders of
one or more series of Securities, only the Holders of Securities of such series
on such date (or their duly designated proxies) shall be entitled to give or
take, or vote on, the relevant action.
47
54
SIGNATURES
XXXXXX XXXXXXXX MATERIALS, INC.
[CORPORATE SEAL] By: /s/ Xxxxxxx X. Xxxxxx, Xx.
------------------------------------------
Title: President
Attest:
/s/ Xxxxxxx Bar
-----------------------------
Secretary
FIRST UNION NATIONAL BANK
[CORPORATE SEAL] By: /s/ Xxxxx Xxxxx
------------------------------------------
Title: Vice President
Attest:
/s/ Xxxxx Xxxxxxxx
-----------------------------
Assistant Secretary
55
EXHIBIT A
================================================================================
FORM OF FACE OF SECURITY
[UNLESS THIS SECURITY IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF
THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE CORPORATION
(AS DEFINED BELOW) OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR
PAYMENT, AND ANY SECURITY ISSUED IS REGISTERED IN THE NAME OF CEDE & CO., OR
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 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 SECURITY SHALL BE LIMITED TO TRANSFERS
MADE IN ACCORDANCE WITH THE RESTRICTIONS SET FORTH IN SECTION 2.9 OF THE
INDENTURE (AS DEFINED BELOW).]*
[THE SECURITIES EVIDENCED HEREBY HAVE NOT BEEN REGISTERED UNDER THE
UNITED STATES SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), AND MAY
NOT BE OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED EXCEPT (A) BY THE INITIAL
INVESTOR (1) TO A PERSON WHOM THE SELLER REASONABLY BELIEVES IS A QUALIFIED
INSTITUTIONAL BUYER (WITHIN THE MEANING OF RULE 144A UNDER THE SECURITIES ACT)
PURCHASING FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED INSTITUTIONAL
BUYER IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE 144A, (2) PURSUANT TO AN
EXEMPTION FROM REGISTRATION UNDER THE SECURITIES ACT PROVIDED BY RULE 144
THEREUNDER (IF AVAILABLE), OR (3) PURSUANT TO AN EFFECTIVE REGISTRATION
STATEMENT UNDER THE SECURITIES ACT AND (B) BY SUBSEQUENT INVESTORS, AS SET FORTH
IN (A) ABOVE AND, IN ADDITION, TO AN INSTITUTIONAL "ACCREDITED INVESTOR" (AS
DEFINED IN RULE 501(a)(1), (2), (3), OR (7) OF REGULATION D UNDER THE SECURITIES
ACT) IN A TRANSACTION EXEMPT FROM REGISTRATION REQUIREMENTS OF THE SECURITIES
ACT, IN EACH CASE (A) AND (B) IN ACCORDANCE WITH ALL APPLICABLE SECURITIES LAWS
OF THE STATES OF THE UNITED STATES.]**
---------------------------
*Include only on a Global Note.
**Include only on an Original Security
B-1
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================================================================================
No. _____ $_______________
XXXXXX XXXXXXXX MATERIALS, INC.
___%
Note Due ____________
CUSIP __________
XXXXXX XXXXXXXX MATERIALS, INC., a North Carolina corporation, for value
received hereby promised to pay to __________, or registered assigns, the
principal sum of _______________________ DOLLARS ($________) on ______________,
________.
Interest Payment Dates: __________________ and __________________
Record Dates: __________________ and __________________
Additional Provisions of this Note are set forth on the following pages
of this Note.
Attest: [SEAL] XXXXXX XXXXXXXX MATERIALS, INC.
___________________________________ By: _____________________________
Secretary Chief Executive Officer
Dated: ______________________
Authenticated:
This is one of the Securities
of the series designated herein
and referred to in the within-
named Indenture.
FIRST UNION NATIONAL BANK,
as Trustee
By: _______________________,
Authorized Officer
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================================================================================
[FORM OF REVERSE OF SECURITY]
XXXXXX XXXXXXXX MATERIALS, INC.
____%
NOTE DUE ________________
1. Interest. Xxxxxx Xxxxxxxx Materials, Inc., a North Carolina
corporation (the "Corporation"), promises to pay interest on the principal
amount of this Security at the rate per annum shown above. The Corporation will
pay interest semi-annually on __________ and __________ of each year. Interest
on the Securities will accrue from the most recent date to which interest has
been paid, or if no interest has been paid, from __________. Unless otherwise
specified, interest will be computed on the basis of a 360-day year of twelve
30-day months.
[If Original Securities, then insert--Notwithstanding the foregoing, if
(i) the Corporation has not filed a registration statement (the "Exchange Offer
Registration Statement") under the Securities Act of 1933, as amended (the
"Securities Act"), registering a security (an "Exchange Security")
substantially identical to this Security pursuant to an exchange offer (the
"Exchange Offer") within 60 days following the delivery of this Security (the
"Issue Date"), or, if applicable, a registration statement (the "Resale
Registration Statement") registering this Security for resale has not been
filed on or prior to the date upon which it is required to be filed under the
Exchange and Registration Rights Agreement, dated as of __________ (the
"Registration Rights Agreement"), or (ii) the Exchange Offer Registration
Statement has not become or been declared effective within 180 days following
the Issue Date or, if applicable, the Resale Registration Statement has not
been declared effective within 120 days after the Resale Registration Statement
is filed or (iii) the Exchange Offer has not been completed within 45 days
after the date on which the Exchange Registration Statement has become or been
declared effective initially or (iv) either the Exchange Registration Statement
or, if applicable, the Resale Registration Statement is filed and declared
effective but shall thereafter cease to be effective (except as specifically
permitted therein) without being succeeded immediately by an additional
registration statement filed and declared effective (each such event referred
to in clauses (i) through (iv), a "Registration Default" and each period during
which a Registration Default has occurred and is continuing, a "Registration
Default Period"), then the per annum interest rate on this Security will
increase (the "Step-Up") by 0.25% for the first 90 days of the Registration
Default Period and by 0.50% thereafter for the remaining portion of the
Registration Default Period (after which Registration Default Period the
interest rate will be reduced to the rate otherwise in effect). Interest
accruing as a result of the Step-Up is referred to herein as "Additional
Interest." Accrued Additional Interest shall be paid semi-annually on the
Interest Payment Dates; and the amount of accrued Additional Interest shall be
determined on the basis of the number of days actually elapsed. Any accrued and
unpaid interest (including Additional Interest) on this Security upon the
issuance of
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an Exchange Security in exchange for this Security shall cease to be payable to
the Holder hereof but such accrued and unpaid interest (including Additional
Interest) shall be payable on the next Interest Payment Date for such Exchange
Security to the Holder thereof on the related Record Date.]
2. Method of Payment. Except as described above, the Corporation
will pay interest on the Securities (except defaulted interest, which shall be
paid as set forth below) to the persons who are registered holders of the
Securities at the close of business on the record date for the next interest
payment date even though the Securities are cancelled after the record date and
on or before the interest payment date. Any such interest not so punctually
paid or duly provided for will forthwith cease to be payable to the Holder on
such regular record date and may either be paid to the Person in whose name
this Security (or one or more predecessor Securities) is registered at the
close of business on a special record date for the payment of such defaulted
interest to be fixed by the Trustee for the Securities, notice whereof shall be
given to the Holders of Securities not less than 15 days prior to such special
record date, or may be paid at any time in any other lawful manner not
inconsistent with the requirements of any securities exchange on which this
Security may be listed, and upon such notice as may be required by such
exchange, all as more fully provided in the Indenture. Holders must surrender
the Securities to a Paying Agent to collect principal payments. The Corporation
will pay principal and interest in the money of the United States that at the
time of payment is legal tender for payment of public and private debts.
However, the Corporation may pay principal and interest by its check payable in
such money. It may mail an interest check to a holder's registered address. To
the extent lawful, the Corporation shall pay interest on overdue principal at
the rate borne by the Securities and it shall pay interest on overdue
installments of interest at the same rate.
3. Paying Agent and Registrar. Initially, First Union National
Bank ("Trustee"), Corporate Trust Division, 000 Xxxxx Xxxxx Xxxxxx, 0xx Xxxxx,
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000-0000, will act as Paying Agent and Registrar.
The Corporation may change any Paying Agent, Registrar or co-registrar without
notice. The Corporation or any of its Subsidiaries (as defined in the
Indenture) may act as Paying Agent, Registrar or co-registrar.
4. Indenture. The Corporation issued the Securities under an
Indenture dated as of December __, 1998 ("Indenture"), between the Corporation
and the Trustee. The terms of the Securities include those stated in the
Indenture and those made part of the Indenture by reference to the Trust
Indenture Act of 1939 (15 U.S. Code xx.xx. 77aaa-77bbbb) ("Act"). The
Securities are subject to all such terms, and holders are referred to the
Indenture, all applicable supplemental indentures and the Act for a statement
of those terms. As provided in the Indenture, the Securities may be issued in
one or more series, which different series may be issued in various aggregate
principal amounts, may mature at different times, may bear interest, if any, at
different rates, may be subject to different redemption provisions, if any, may
be subject to different sinking purchase or analogous funds, if any, may be
subject to different covenants and Events of Default and may otherwise vary as
in the Indenture provided or permitted. This Security is one of a series of the
Securities designated on the face hereof, limited in aggregate principal amount
of $___________ (except as otherwise provided in the Indenture).
B-4
59
5. Redemption. The Securities are not redeemable by the
Corporation.
6. Denominations; Transfer; Exchange. The Securities are in
registered form without coupons in denominations of $1,000 and any multiple of
$1,000. A holder may transfer or exchange Securities in accordance with the
Indenture. The Registrar may require a holder, among other things, to furnish
appropriate endorsements and transfer documents and to pay any taxes and fees
required by law or permitted by the Indenture. Also, it need not transfer or
exchange any Securities for a period of 15 days before a selection of
Securities to be redeemed or before an interest payment date.
7. Persons Deemed Owners. The registered holder of this Security
may be treated as the owner of it for all purposes, and neither the
Corporation, the Trustee, nor any Registrar, Paying Agent or co-registrar shall
be affected by notice to the contrary.
8. Unclaimed Money. If money for the payment of principal or
interest remains unclaimed for two years, the Trustee or Paying Agent will pay
the money back to the Corporation at its request. After that, holders entitled
to unclaimed money must look only to the Corporation and not the Trustee for
payment unless an abandoned property law designates another person.
9. Defeasance. The Indenture contains provisions for defeasance
at any time of the entire principal of the Securities of any series upon
compliance by the Corporation with certain conditions set forth therein.
10. Amendment; Supplement; Waiver. Subject to certain exceptions
as therein provided, the Indenture or the Securities may be amended or
supplemented with the consent of the holders of not less than a majority in
principal amount of the Securities, and, subject to certain exceptions and
limitations as provided in the Indenture, any past default or compliance with
any provision may be waived with the consent of the holders of a majority in
principal amount of the Securities. Without the consent of any holder, the
Indenture or the Securities may be amended or supplemented, for among other
reasons, to cure any ambiguity, omission, defect or inconsistency, to provide
for uncertificated Securities in addition to or in place of certificated
Securities or to make any change that does not materially adversely affect the
rights of any holder. Without the consent of any holder, the Trustee may waive
compliance with any provision of the Indenture or the Securities if the waiver
does not materially adversely affect the rights of any holder.
11. Restrictive Covenants. The Indenture does not limit unsecured
debt of the Corporation or any of its Subsidiaries. It does limit certain
mortgages, liens and sale-leaseback transactions. The limitations are subject
to a number of important qualifications and exceptions. Once a year the
Corporation must report to the Trustee on compliance with the limitations.
12. Successors. When a successor entity assumes all the
obligations of the Corporation or its successors under the Securities and the
Indenture, the predecessor corporation will be released from those obligations.
X-0
00
00. Defaults and Remedies. An Event of Default is: default for 30
days in payment of any interest on the Securities; default in payment of any
principal on the Securities; failure by the Corporation for 90 days after
notice to it to comply with any of its other agreements in the Indenture or the
Securities; and certain events of bankruptcy or insolvency. If an Event of
Default with respect to Securities of this series shall occur and be
continuing, the principal of the Securities of this series and accrued interest
thereon may be declared due and payable in the manner and with the effect
provided in the Indenture. Holders of Securities may not enforce the Indenture
or the Securities except as provided in the Indenture. The Trustee may refuse
to enforce the Indenture or the Securities unless it receives indemnity
satisfactory to it. Subject to certain limitations, holders of a majority in
principal amount of the Securities may direct the Trustee in its exercise of
any trust or power. The Trustee may withhold from holders notice of any
continuing default (except a default in payment of principal or interest) if it
determines in good faith that withholding notice is in the interests of such
holders.
14. Trustee Dealings with the Corporation. First Union National
Bank, the Trustee under the Indenture, in its individual or any other capacity
may make loans to, accept deposits from and perform services for the
Corporation or any of its affiliates, and may otherwise deal with the
Corporation or its affiliates as if it were not Trustee.
15. No Recourse Against Others. A director, officer, employee or
stockholder, as such, of the Corporation shall not have any liability for any
obligations of the Corporation under the Securities or the Indenture or for any
claim based on, in respect of, or by reason of such obligations or their
creation. Each holder by accepting a Security waives and releases all such
liability. This waiver and release are part of the consideration for the issue
of the Securities.
16. Authentication. This Security shall not be valid until the
Trustee or other Authenticating Agent manually signs the certificate of
authentication on this Security.
17. Abbreviations. Customary abbreviations may be used in the name
of a holder or an assignee, such as: TEN COM (= tenants in common), TEN ENT (=
tenants by the entireties), JT TEN (= joint tenants with right of survivorship
and not as tenants in common), CUST (= Custodian) and U/G/M/A (= Uniform Gifts
to Minors Act).
18. Miscellaneous. This Security shall for all purposes be
governed by, and construed in accordance with, the laws of the State of New
York.
All terms used in this Security which are defined in the Indenture
shall have the meanings assigned to them in the Indenture.
The Corporation will furnish to any holder upon written request and
without charge a copy of the Indenture. Requests may be made to: Xxxxxx
Xxxxxxxx Materials, Inc., 0000 Xxxxxxx Xxxx, Xxxxxxx, Xxxxx Xxxxxxxx 00000-0000
Attention: Secretary.
B-6
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================================================================================
I or we assign and transfer to
Insert social security or other identifying number of assignee
-------------------------------------------------------------------
-------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
(Print or type name, address and zip code of assignee)
this Note and irrevocably appoint ___________________ agent to transfer this
Note on the books of the Corporation. The agent may substitute another to act
for him.
Dated:
---------------------------------------------------------------------
Signed:
--------------------------------------------------------------------
(Sign exactly as name appears on the front page of this Note)
Signature Guarantee:
------------------------------------------------------------
Signatures must be guaranteed by an "eligible guarantor institution" meeting the
requirements of the Registrar, which requirements include membership or
participation in the Security Transfer Agent Medallion Program ("STAMP") or such
other "signature guarantee program" as may be determined by the Registrar in
addition to, or in substitution for, STAMP, all in accordance with the
Securities Exchange Act of 1934, as amended.
B-7
62
EXHIBIT B
Form of Certificate To Be
Delivered in Connection with
Transfers or Exchanges of Original Securities
____________,_______
First Union National Bank ("Trustee")
000 Xxxxx Xxxxx Xxxxxx, 0xx Xxxxx
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000-0000
Xxxxxx Xxxxxxxx Corporation
0000 Xxxxxxx Xxxx
Xxxxxxx, Xxxxx Xxxxxxxx 00000-0000
Re: Xxxxxx Xxxxxxxx Materials, Inc. (the "Corporation")
5.875% Notes Due December 1, 2008 (the "Securities")
Dear Sirs:
In connection with the proposed transfer of $_____________ aggregate
principal amount of the Securities (the "Securities"), the undersigned hereby
certifies and confirms to you as follows (capitalized terms not otherwise
defined herein have the meanings assigned to such terms in the Indenture, dated
as of December 7, 1998, between the Corporation and the Trustee):
A. TO BE COMPLETED BY ALL TRANSFERORS
The undersigned is either (i) the sole beneficial owner of the
Securities or (ii) acting on behalf of all beneficial owners of the Securities
and is authorized to do so. Such beneficial owners are collectively referred to
herein as the "Owner." The Owner is transferring the Securities as follows:
MANNER OF TRANSFER (Check one)
1. [ ] Transfer to the Corporation
2. [ ] Transfer to Qualified Institutional Buyer in Compliance with
Rule 144A
3. [ ] Transfer to Institutional Accredited Investor in Compliance
with Rule 144
B-1
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4. [ ] Transfer to Institutional Accredited Investor in Reliance on
Regulation D under the Securities Act or Another Exemption
from the Registration Requirements of the Securities Act
(other than Rule 144). The Owner is not the initial Holder or
beneficial owner of the Securities.
The Corporation, the Trustee, the Registrar and the Initial
Purchasers are entitled to rely upon this certification and are irrevocably
authorized to produce this certification or a copy hereof to any interested
party in any administrative or legal proceedings or official inquiry with
respect to the matters covered hereby.
[Name of Owner]
By:
-----------------------------------
Authorized Signature
Dated:
---------------------------
B. TO BE COMPLETED BY PURCHASER IF "TRANSFER TO QUALIFIED INSTITUTIONAL
BUYER IN COMPLIANCE WITH RULE 144A" ABOVE IS CHECKED:
The undersigned represents and warrants that it is purchasing this Note
for its own account or an account with respect to which it exercises sole
investment discretion and that it and any such account is a "qualified
institutional buyer" within the meaning of Rule 144A under the Securities Act
of 1933, as amended, 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 Corporation 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 the undersigned's foregoing representations in order
to claim the exemption from registration provided by Rule 144A.
The Corporation, the Trustee, the Registrar and the Initial
Purchasers are entitled to rely upon this certification and are irrevocably
authorized to produce this certification or a copy hereof to any interested
party in any administrative or legal proceedings or official inquiry with
respect to the matters covered hereby.
[Name of Purchaser]
By:
-----------------------------------
Authorized Signature
Dated:
---------------------------
B-2
64
C. TO BE COMPLETED BY PURCHASER IF "TRANSFER TO INSTITUTIONAL ACCREDITED
INVESTOR IN COMPLIANCE WITH REGULATION D OR UNDER THE SECURITIES ACT OR
ANOTHER EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES
ACT (OTHER THAN RULE 144)" ABOVE IS CHECKED.
1. We understand that any subsequent transfer of the Securities
is subject to certain restrictions and conditions set forth in the Indenture
dated as of December 7, 1998, relating to the Securities (the "Indenture") and
the undersigned agrees to be bound by, and not to resell, pledge or otherwise
transfer the Securities except in compliance with, such restrictions and
conditions and the Securities Act of 1933, as amended (the "Securities Act").
2. We understand that the offer and sale of the Securities have
not been registered under the Securities Act, and that the Securities may not
be offered or sold except as permitted in the following sentence. We agree, on
our own behalf and on behalf of any accounts for which we are acting as
hereinafter stated, that if we should sell any Securities, we will do so only
(A) to the Corporation or any subsidiary thereof, (B) in accordance with Rule
144A under the Securities Act to a "qualified institutional buyer" (as defined
therein), (C) to an institutional "accredited investor" (as defined below)
that, prior to such transfer, furnishes (or has furnished on its behalf by a
U.S. broker-dealer) to you and to the Corporation a signed letter substantially
in the form of this letter, (D) pursuant to the exemption from registration
provided by Rule 144 under the Securities Act, or (E) pursuant to an effective
registration statement under the Securities Act, and we further agree to
provide to any person purchasing any of the Securities from us a notice
advising such purchaser that resales of the Securities are restricted as stated
herein.
3. We understand that, on any proposed resale of any Securities,
we will be required to furnish to you and the Corporation such certifications,
legal opinions and other information as you and the Corporation may reasonably
require to confirm that the proposed sale complies with the foregoing
restrictions. We further understand that the Securities purchased by us will
bear a legend to the foregoing effect.
4. We are an institutional "accredited investor" (as defined in
Rule 501(a)(1), (2), (3) or (7) of Regulation D under the Securities Act) and
have such knowledge and experience in financial and business matters as to be
capable of evaluating the merits and risks of our investment in the Securities,
and we and any accounts for which we are acting are each able to bear the
economic risk of our or its investment.
5. We are acquiring the Securities purchased by us for our own
account or for one or more accounts (each of which is an institutional
"accredited investor") as to each of which we exercise sole investment
discretion and the amount of Notes so being acquired is at least $100,000.
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65
The Corporation, the Trustee, the Registrar and the Initial
Purchasers are entitled to rely upon this certification and are irrevocably
authorized to produce this certification or a copy hereof to any interested
party in any administrative or legal proceedings or official inquiry with
respect to the matters covered hereby.
[Name of Purchaser]
By:
-----------------------------------
Authorized Signature
Dated:
-------------------------
B-4
