INDENTURE
Between
LILLY INDUSTRIES, INC.
and
XXXXXX TRUST AND SAVINGS BANK
dated as of
November 10, 1997
-------
7-3/4% Senior Notes Due 2007
TABLE OF CONTENTS
Page
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ARTICLE I
Definitions and Incorporation by Reference
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SECTION 1.01. Definitions 1
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SECTION 1.02. Other Definitions 20
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SECTION 1.03. Incorporation by Reference of Trust
Indenture Act 20
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SECTION 1.04 Rules of Construction 20
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ARTICLE 2
The Securities
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SECTION 2.01. Form and Dating 21
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SECTION 2.02. Execution and Authentication 22
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SECTION 2.03. Registrar and Paying Agent 22
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SECTION 2.04. Paying Agent To Hold Money
in Trust 23
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SECTION 2.05. Securityholder Lists 23
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SECTION 2.06. Replacement Securities 23
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SECTION 2.07. Outstanding Securities 24
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SECTION 2.08. Temporary Securities 24
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SECTION 2.09. Cancelation 25
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SECTION 2.10. Defaulted Interest 25
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SECTION 2.11. CUSIP Numbers 25
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ARTICLE 3
Redemption
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SECTION 3.01. Notices to Trustee 25
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SECTION 3.02. Selection of Securities To Be
Redeemed 26
SECTION 3.03. Notice of Redemption 26
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SECTION 3.04. Effect of Notice of Redemption 27
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SECTION 3.05. Deposit of Redemption Price 27
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SECTION 3.06. Securities Redeemed in Part 27
ARTICLE 4
Covenants
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SECTION 4.01. Payment of Securities 28
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SECTION 4.02. Commission Reports 28
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SECTION 4.03. Compliance Certificate 28
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SECTION 4.04. Further Instruments and Acts 29
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SECTION 4.05. Corporate Existence 29
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SECTION 4.06. Limitation on Debt 29
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SECTION 4.07. Limitation on Liens 30
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SECTION 4.08. Limitation on Sale and Leaseback 30
Transactions
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SECTION 4.09. Exempted Debt 30
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SECTION 4.10. Designation of Restricted and
Unrestricted Subsidiaries 31
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ARTICLE 5
Successor Company
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SECTION 5.01. When Company May Merge or Transfer
Assets 32
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SECTION 5.02. Successor Substituted 33
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ARTICLE 6
Defaults and Remedies
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SECTION 6.01. Events of Default 33
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SECTION 6.02. Acceleration 35
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SECTION 6.03. Other Remedies 36
SECTION 6.04. Waiver of Past Defaults 36
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SECTION 6.05. Control by Majority 36
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SECTION 6.06. Limitation on Suits 37
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SECTION 6.07. Rights of Holders To Receive Payment 37
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SECTION 6.08. Collection Suit by Trustee 37
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SECTION 6.09. Trustee May File Proofs of Claim 38
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SECTION 6.10. Priorities 38
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SECTION 6.11. Undertaking for Costs 38
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SECTION 6.12. Waiver of Stay or Extension Laws 39
ARTICLE 7
Trustee
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SECTION 7.01. Duties of Trustee 39
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SECTION 7.02. Rights of Trustee 40
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SECTION 7.03. Individual Rights of Trustee 41
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SECTION 7.04. Trustee's Disclaimer 41
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SECTION 7.05. Notice of Defaults 41
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SECTION 7.06. Reports by Trustee to Holders 42
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SECTION 7.07. Compensation and Indemnity 42
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SECTION 7.08. Replacement of Trustee 43
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SECTION 7.09. Successor Trustee by Merger 44
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SECTION 7.10. Eligibility; Disqualification 44
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SECTION 7.11. Preferential Collection of Claims Against
Company
44
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ARTICLE 8
Discharge of Indenture; Defeasance
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SECTION 8.01. Discharge of Liability on Securities;
Defeasance
45
SECTION 8.02. Conditions to Defeasance 46
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SECTION 8.03. Application of Trust Money 47
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SECTION 8.04. Repayment to Company 47
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SECTION 8.05. Indemnity for Government
Obligations 47
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SECTION 8.06. Reinstatement 48
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ARTICLE 9
Amendments
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SECTION 9.01. Without Consent of Holders 48
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SECTION 9.02. With Consent of Holders 49
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SECTION 9.03. Compliance with Trust Indenture Act 50
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SECTION 9.04. Revocation and Effect of Consents
and Waivers 50
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SECTION 9.05. Notation on or Exchange of
Securities 50
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SECTION 9.06. Trustee To Sign Amendments 51
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SECTION 9.07. Payment for Consent 51
ARTICLE 10
Miscellaneous
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SECTION 10.01. Trust Indenture Act Controls 51
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SECTION 10.02. Notices 52
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SECTION 10.03. Communication by Holders with Other
Holders 52
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SECTION 10.04. Certificate and Opinion as to Conditions
Precedent 52
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SECTION 10.05. Statements Required in Certificate or
Opinion 53
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SECTION 10.06. When Securities Disregarded 53
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SECTION 10.07. Rules by Trustee, Paying Agent and
Xxxxxxxxx 00
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SECTION 10.08. Legal Holidays 54
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SECTION 10.09. Governing Law 54
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SECTION 10.10. No Recourse Against Others 54
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SECTION 10.11. Successors 54
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SECTION 10.12. Multiple Originals 54
SECTION 10.13. Table of Contents; Headings 55
Appendix A
Provisions
Relating to
Initial
Securities,
Exchange Securities and Private Exchange
Securities
Exhibit 1 to
Form of Initial
Security
Appendix A
Exhibit A
Form of
Exchange
Security or
Private
Exchange
Security
CROSS-REFERENCE TABLE
TIA Indenture
Section Section
310(a)(1) 7.10
(a)(2) 7.10
(a)(3) N.A.
(a)(4) N.A.
(b) 7.08; 7.10
(c) N.A.
311(a) 7.11
(b) 7.11
(c) N.A.
312(a) 2.05
(b) 10.03
(c) 10.03
313(a) 7.06
(b)(1) N.A.
(b)(2) 7.06
(c) 10.02
(d) 7.06
314(a) 4.02; 4.03;
10.02
(b) N.A.
(c)(1) 10.04
(c)(2) 10.04
(c)(3) N.A.
(d) N.A.
(e) 10.05
(f) 4.03
315(a) 7.01
(b) 7.05; 10.02
(c) 7.01
(d) 7.01
(e) 6.11
316(a)(last sentence)
10.06
(a)(1)(A) 6.05
(a)(1)(B) 6.04
(a)(2) N.A.
(b) 6.07
317(a)(1) 6.08
(a)(2) 6.09
(b) 2.04
318(a) 10.01
N.A. Means Not Applicable.
--------------------
Note: This
Cross-Reference Table
shall not, for any
purposes, be deemed to
be part of this
Indenture.
INDENTURE dated as of November 10, 1997, between LILLY
INDUSTRIES, INC., an Indiana corporation (the "Company"),
and XXXXXX TRUST AND SAVINGS BANK, an Illinois banking
association (the "Trustee").
Each party agrees as follows for the benefit of the
other party and for the equal and ratable benefit of the Holders of the
Company's 7-3/4% Senior Notes Due 2007 (the "Initial Securities") and,
if and when issued pursuant to a registered exchange for Initial
Securities, the Company's 7-3/4% Senior Notes Due 2007 (the "Exchange
Securities") and, if and when issued pursuant to a private exchange for
Initial Securities, the Company's 7-3/4% Senior Notes Due 2007 (the
"Private Exchange Securities", together with the Exchange Securities
and the Initial Securities, the "Securities"):
ARTICLE 1
Definitions and Incorporation by Reference
SECTION 1.01. Definitions.
"Affiliate" means another Person directly or
indirectly controlling or controlled by or under direct or indirect
common control with such first Person. For the purposes of this
definition, "control" (including, with correlative meanings, the terms
"controlling," "controlled by" and "under common control with"), as
applied to any Person, means the possession, directly or indirectly, of
the power to direct or cause the direction of the management and
policies of that Person, whether through the ownership of Voting Stock
or by contract or otherwise.
"Asset Sale" means any sale, lease, transfer,
issuance or other disposition (or series of related sales, leases,
transfers, issuances or dispositions) by the Company or any Restricted
Subsidiary, including any disposition by means of a merger,
consolidation or similar transaction (each referred to for the purposes
of this definition as a "disposition"), of (a) any shares of Capital
Stock of a Restricted Subsidiary (other than directors' qualifying
shares) or (b) any other assets of the Company or any Restricted
Subsidiary outside of the ordinary course of business of the Company or
such Restricted Subsidiary (other than, in the case of clauses (a) and
(b) above, (i) any disposition by a Restricted Subsidiary to the
Company or by the Company or a Restricted Subsidiary to a Wholly Owned
Subsidiary and (ii) any disposition effected in compliance with Section
5.01.
"Attributable Debt" in respect of a Sale and
Leaseback Transaction means, at any date of determination, (a) if such
Sale and Leaseback Transaction is a Capital Lease Obligation, the
amount of Debt represented thereby according to the definition of
"Capital Lease Obligation" and (b) in all other instances, the present
value (discounted at the interest rate borne by the Securities,
compounded annually), of the total obligations of the lessee for rental
payments during the remaining term of the lease included in such Sale
and Leaseback Transaction (including any period for which such lease
has been extended).
"Average Life" means, as of any date of
determination, with respect to any Debt or Preferred Stock, the
quotient obtained by dividing (a) the sum of the product of the numbers
of years (rounded to the nearest one-twelfth of one year) from the date
of determination to the dates of each successive scheduled principal
payment of such Debt or redemption or similar payment with respect to
such Preferred Stock multiplied by the amount of such payment by (b)
the sum of all such payments.
"Board of Directors" means the Board of Directors of
the Company or any committee thereof duly authorized to act on behalf
of such Board.
"Board Resolution" means a copy of a resolution
certified by the Secretary or an Assistant Secretary of the Company to
have been duly adopted by the Board of Directors and to be in full
force and effect on the date of such certification.
"Business Day" means each day which is not a Legal
Holiday.
"Capital Expenditure Debt" means Debt Incurred by any
Person to finance a capital expenditure so long as (a) such capital
expenditure is or should be included as an addition to "Property and
Equipment" in accordance with GAAP and (b) such Debt is Incurred within
180 days of the date such capital expenditure is made.
"Capital Stock" of any Person means any and all
shares, interests, rights to purchase, warrants, options,
participations or other equivalents of or interests in (however
designated) equity of such Person, including any Preferred Stock, but
excluding any debt securities convertible or exchangeable into such
equity interest.
"Capital Stock Sale Proceeds" means the aggregate Net
Cash Proceeds received by the Company from the issue or sale (other
than to a Subsidiary of the Company or an employee stock ownership plan
or trust established by the Company or any of its Subsidiaries for the
benefit of their employees) by the Company of any class of its Capital
Stock (other than Disqualified Stock) after the Issue Date.
"Capitalized Lease Obligation" means any obligation
under a lease that is required to be capitalized for financial
reporting purposes in accordance with GAAP and the amount of Debt
represented by such obligation shall be the capitalized amount of such
obligation determined in accordance with GAAP; and the Stated Maturity
thereof shall be the date of the last payment of rent or any other
amount due under such lease prior to the first date upon which such
lease may be terminated by the lessee without payment of a penalty. For
purposes of Section 4.07, a Capital Lease Obligation shall be deemed
secured by a Lien on the Property being leased.
"Code" means the Internal Revenue Code of 1986, as
amended.
"Commission" means the Securities and Exchange
Commission.
"Company" means the party named as such in this
Indenture until a successor replaces it and, thereafter, means the
successor and, for purposes of any provision contained herein and
required by the TIA, each other obligor on the indenture securities.
"Consolidated Interest Coverage Ratio" means, as of
any date of determination, the ratio of (a) the aggregate amount of
EBITDA for the most recent four consecutive fiscal quarters ending at
least 45 days prior to such determination date to (b) Consolidated
Interest Expense for such four fiscal quarters; provided, however, that
(i) if the Company or any Restricted Subsidiary has Incurred any Debt
since the beginning of such period that remains outstanding or if the
transaction giving rise to the need to calculate the Consolidated
Interest Coverage Ratio is an Incurrence of Debt, or both, Consolidated
Interest Expense for such period shall be calculated after giving
effect on a pro forma basis to such Debt as if such Debt had been
Incurred on the first day of such period and the discharge of any other
Debt repaid, repurchased, defeased or otherwise discharged with the
proceeds of such new Debt as if such discharge had occurred on the
first day of such period, (ii) if since the beginning of such period
the Company or any Restricted Subsidiary shall have repaid,
repurchased, legally defeased or otherwise discharged any Debt with
Capital Stock Sale Proceeds, Consolidated Interest Expense for such
period shall be calculated after giving effect on a pro forma basis to
such discharge as if such discharge had occurred on the first day of
such period, (iii) if since the beginning of such period the Company or
any Restricted Subsidiary shall have made any Asset Sale or if the
transaction giving rise to the need to calculate the Consolidated
Interest Coverage Ratio is an Asset Sale, or both, EBITDA for such
period shall be reduced by an amount equal to the EBITDA (if positive)
directly attributable to the Property which is the subject of such
Asset Sale for such period, or increased by an amount equal to the
EBITDA (if negative) directly attributable thereto for such period, in
either case as if such Asset Sale had occurred on the first day of such
period and Consolidated Interest Expense for such period shall be
reduced by an amount equal to the Consolidated Interest Expense
directly attributable to any Debt of the Company or any Restricted
Subsidiary repaid, repurchased, defeased or otherwise discharged with
respect to the Company and its continuing Restricted Subsidiaries in
connection with such Asset Sale, as if such Asset Sale had occurred on
the first day of such period (or, if the Capital Stock of any
Restricted Subsidiary is sold, by an amount equal to the Consolidated
Interest Expense for such period directly attributable to the Debt of
such Restricted Subsidiary to the extent the Company and its continuing
Restricted Subsidiaries are no longer liable for such Debt after such
sale), (iv) if since the beginning of such period the Company or any
Restricted Subsidiary (by merger or otherwise) shall have made an
Investment in any Restricted Subsidiary (or any Person which becomes a
Restricted Subsidiary) or an acquisition of Property, including any
acquisition of Property occurring in connection with a transaction
causing a calculation to be made hereunder, which constitutes all or
substantially all of an operating unit of a business, EBITDA and
Consolidated Interest Expense for such period shall be calculated after
giving pro forma effect thereto (including the Incurrence of any Debt)
as if such Investment or acquisition occurred on the first day of such
period and (v) if since the beginning of such period any Person (that
subsequently became a Restricted Subsidiary or was merged with or into
the Company or any Restricted Subsidiary since the beginning of such
period) shall have made any Asset Sale, Investment or acquisition of
Property that would have required an adjustment pursuant to clause
(iii) or (iv) above if made by the Company or a Restricted Subsidiary
during such period, EBITDA and Consolidated Interest Expense for such
period shall be calculated after giving pro forma effect thereto as if
such Asset Sale or Investment occurred on the first day of such period.
For purposes of this definition, pro forma calculations shall be
determined in good faith by a responsible financial or accounting
Officer. If any Debt bears a floating rate of interest and is being
given pro forma effect, the interest expense on such Debt shall be
calculated as if the rate in effect on the date of determination had
been the applicable rate for the entire period (taking into account any
Interest Rate Agreement applicable to such Debt if such Interest Rate
Agreement has a remaining term in excess of 12 months).
"Consolidated Interest Expense" means, for any
period, the total interest expense of the Company and its consolidated
Restricted Subsidiaries, plus, to the extent not included in such total
interest expense, and to the extent Incurred by the Company or its
Restricted Subsidiaries, (a) interest expense attributable to capital
leases, (b) amortization of debt discount and debt issuance cost,
including commitment fees, (c) capitalized interest, (d) non-cash
interest expense, (e) commissions, discounts and other fees and charges
owed with respect to letters of credit and bankers' acceptance
financing, (f) net costs associated with Hedging Obligations (including
amortization of fees), (g) Redeemable Dividends, (h) Preferred Stock
dividends in respect of all Preferred Stock of Restricted Subsidiaries
held by Persons other than the Company or a Wholly Owned Subsidiary,
(i) interest incurred in connection with Investments in discontinued
operations, (j) interest accruing on any Debt of any other Person to
the extent such Debt is Guaranteed by the Company or any Restricted
Subsidiary and (k) the cash contributions to any employee stock
ownership plan or similar trust to the extent such contributions are
used by such plan or trust to pay interest or fees to any Person (other
than the Company) in connection with Debt Incurred by such plan or
trust.
"Consolidated Net Income" means, for any period, the
net income (loss) of the Company and its consolidated Subsidiaries;
provided, however, that there shall not be included in such
Consolidated Net Income (a) any net income (loss) of any Person (other
than the Company) if such Person is not a Restricted Subsidiary, except
that (i) subject to the exclusion contained in clause (d) below, the
Company's equity in the net income of any such Person for such period
shall be included in such Consolidated Net Income up to the aggregate
amount of cash distributed by such Person during such period to the
Company or a Restricted Subsidiary as a dividend or other distribution
(subject, in the case of a dividend or other distribution to a
Restricted Subsidiary, to the limitations contained in clause (c)
below) and (ii) the Company's equity in a net loss of any such Person
other than an Unrestricted Subsidiary for such period shall be included
in determining such Consolidated Net Income, (b) any net income (loss)
of any Restricted Subsidiary if such Restricted Subsidiary is subject
to restrictions, directly or indirectly, on the payment of dividends or
the making of distributions, directly or indirectly, to the Company,
except that (i) subject to the exclusion contained in clause (c) below,
the Company's equity in the net income of any such Restricted
Subsidiary for such period shall be included in such Consolidated Net
Income up to the aggregate amount of cash distributed by such
Restricted Subsidiary during such period to the Company or another
Restricted Subsidiary as a dividend or other distribution (subject, in
the case of a dividend or other distribution to another Restricted
Subsidiary, to the limitation contained in this clause) and (ii) the
Company's equity in a net loss of any such Restricted Subsidiary for
such period shall be included in determining such Consolidated Net
Income, (c) any gain (but not loss) realized upon the sale or other
disposition of any Property of the Company or any of its consolidated
Subsidiaries (including pursuant to any Sale and Leaseback Transaction)
which is not sold or otherwise disposed of in the ordinary course of
business, (d) any extraordinary gain or loss, (e) the cumulative effect
of a change in accounting principles and (f) any non-cash compensation
expense realized for grants of performance shares, stock options or
other stock award to officers, directors and employees of the Company
or any Restricted Subsidiary.
"Consolidated Net Tangible Assets" means, as of any
date of determination, the total amount of assets (less applicable
reserves and other properly deductible items) after deducting (1) all
current liabilities (excluding the amount of those which are by their
terms extendable or renewable at the option of the obligor to a date
more than 12 months after the date as of which the amount is being
determined and excluding all intercompany items between the Company and
any Restricted Subsidiary or between Restricted Subsidiaries), (2) all
goodwill, tradenames, trademarks, patents, unamortized debt discount
and expense and other like intangible assets, all as determined in
accordance with GAAP, (3) the excess of cost over fair market value of
assets or businesses acquired, (4) any revaluation or other write-up in
book value of assets subsequent to the last day of the fiscal quarter
of the Company immediately preceding the Issue Date as a result of a
change in the method of valuation in accordance with GAAP, (5) minority
interests in consolidated Subsidiaries held by Persons other than the
Company or any Restricted Subsidiary, (6) treasury stock, (7) cash or
securities set aside and held in a sinking or other analogous fund
established for the purpose of redemption or other retirement of
Capital Stock to the extent such obligation is not reflected in
Consolidated Current Liabilities, and (8) Investments in and assets of
Unrestricted Subsidiaries.
"Consolidated Net Worth" means the excess of assets
over liabilities of the Company and its consolidated Subsidiaries, plus
Minority Interests, as determined from time to time in accordance with
GAAP.
"Credit Facility" means, with respect to the Company
or any Restricted Subsidiary, one or more debt or commercial paper
facilities with banks or other institutional lenders (including the New
Bank Credit Facility) providing for revolving credit loans, terms
loans, receivables or inventory financing (including through the sale
of receivables or inventory to such lenders or to special purpose,
bankruptcy remote entities formed to borrow from such lenders against
such receivables or inventory) or trade letters of credit.
"Currency Agreement" means in respect of any Person,
any foreign exchange contract, currency swap agreement, currency option
or other similar agreement or arrangement designed to protect such
Person against fluctuations in currency exchange rates.
"Debt" means, with respect to any Person on any date
of determination (without duplication), (a) the principal of and
premium (if any) in respect of (i) debt of such Person for money
borrowed and (ii) debt evidenced by notes, debentures, bonds or other
similar instruments for the payment of which such Person is responsible
or liable; (b) all Capital Lease Obligations of such Person and all
Attributable Debt in respect of Sale and Leaseback Transactions entered
into by such Person; (c) all obligations of such Person issued or
assumed as the deferred purchase price of Property, all conditional
sale obligations of such Person and all obligations of such Person
under any title retention agreement (but excluding trade accounts
payable arising in the ordinary course of business); (d) all
obligations of such Person for the reimbursement of any obligor on any
letter of credit, banker's acceptance or similar credit transaction
(other than obligations with respect to letters of credit securing
obligations (other than obligations described in (a) through (c) above)
entered into in the ordinary course of business of such Person to the
extent such letters of credit are not drawn upon or, if and to the
extent drawn upon, such drawing is reimbursed no later than the third
Business Day following receipt by such Person of a demand for
reimbursement following payment on the letter of credit); (e) the
amount of all obligations of such Person with respect to the
redemption, repayment or other repurchase of any Disqualified Stock or,
with respect to any Subsidiary of such Person, any Preferred Stock (but
excluding, in each case, any accrued dividends); (f) all obligations of
the type referred to in clauses (a) through (e) of other Persons and
all dividends of other Persons for the payment of which, in either
case, such Person is responsible or liable, directly or indirectly, as
obligor, guarantor or otherwise, including by means of any Guarantee;
(g) all obligations of the type referred to in clauses (a) through (f)
of other Persons secured by any Lien on any Property of such Person
(whether or not such obligation is assumed by such Person), the amount
of such obligation being deemed to be the lesser of the value of such
Property or the amount of the obligation so secured; and (h) to the
extent not otherwise included in this definition, Hedging Obligations
of such Person. The amount of Debt of any Person at any date shall be
the outstanding balance at such date of all unconditional obligations
as described above and the maximum liability, upon the occurrence of
the contingency giving rise to the obligation, of any contingent
obligations at such date.
"Default" means any event which is, or after notice
or passage of time or both would be, an Event of Default.
"Disqualified Stock" means, with respect to any
Person, Redeemable Stock of such Person as to which (i) the maturity,
(ii) mandatory redemption or (iii) redemption, conversion or exchange
at the option of the holder thereof occurs, or may occur, on or prior
to the first anniversary of the Stated Maturity of the Securities;
provided, however, that Redeemable Stock of such Person that would not
otherwise be characterized as Disqualified Stock under this definition
shall not constitute Disqualified Stock if such Redeemable Stock is
convertible or exchangeable into Debt solely at the option of the
issuer thereof.
"EBITDA" means, for any period, an amount equal to,
for the Company and its consolidated Restricted Subsidiaries, (a) the
sum of Consolidated Net Income for such period, plus the following to
the extent reducing Consolidated Net Income for such period: (i) the
provision for taxes based on income or profits or utilized in computing
net loss, (ii) Consolidated Interest Expense, (iii) depreciation, (iv)
amortization of intangibles and (v) any other non-cash items (other
than any such non-cash item to the extent that it represents an accrual
of or reserve for cash expenditures in any future period), minus (b)
all non-cash items increasing Consolidated Net Income for such period
(other than any such non-cash item to the extent that it will result in
the receipt of cash payments in any future period). Notwithstanding the
foregoing, the provision for taxes based on the income or profits of,
and the depreciation and amortization of, a Restricted Subsidiary shall
be added to Consolidated Net Income to compute EBITDA only to the
extent (and in the same proportion) that the net income of such
Restricted Subsidiary was included in calculating Consolidated Net
Income and only if a corresponding amount would be permitted at the
date of determination to be dividended to the Company by such
Restricted Subsidiary without prior approval (that has not been
obtained), pursuant to the terms of its charter and all agreements,
instruments, judgments, decrees, orders, statutes, rules and
governmental regulations applicable to such Restricted Subsidiary or
its stockholders.
"Exchange Act" means the Securities Exchange Act of
1934.
"Funded Debt" means all Debt of the Company and its
Restricted Subsidiaries with a Stated Maturity more than one year
after, or which is renewable or extendable at the option of the Company
for a period ending more than one year after, the date as of which
Funded Debt is being determined.
"GAAP" means generally accepted accounting principles
in the United States of America as in effect as of the Issue Date,
including those set forth in (i) the opinions and pronouncements of the
Accounting Principles Board of the American Institute of Certified
Public Accountants, (ii) statements and pronouncements of the Financial
Accounting Standards Board, (iii) such other statements by such other
entity as approved by a significant segment of the accounting
profession and (iv) the rules and regulations of the Commission
governing the inclusion of financial statements (including pro forma
financial statements) in periodic reports required to be filed pursuant
to Section 13 of the Exchange Act, including opinions and
pronouncements in staff accounting bulletins and similar written
statements from the accounting staff of the Commission.
"Guarantee" means any obligation, contingent or
otherwise, of any Person directly or indirectly guaranteeing any Debt
of any other Person and any obligation, direct or indirect, contingent
or otherwise, of such Person (a) to purchase or pay (or advance or
supply funds for the purchase or payment of) such Debt of such other
Person (whether arising by virtue of partnership arrangements, or by
agreements to keep-well, to purchase assets, goods, securities or
services, to take-or-pay or to maintain financial statement conditions
or otherwise) or (b) entered into for the purpose of assuring in any
other manner the obligee against loss in respect thereof (in whole or
in part); provided, however, that the term "Guarantee" shall not
include endorsements for collection or deposit in the ordinary course
of business. The term "Guarantee" used as a verb has a corresponding
meaning. The term "Guarantor" shall mean any Person Guaranteeing any
obligation.
"Hedging Obligation" of any Person means any
obligation of such Person pursuant to any Interest Rate Agreement,
Currency Exchange Protection Agreement or any other similar agreement
or arrangement.
"Holder" or "Securityholder" means the Person in
whose name a Security is registered on the Registrar's books.
"Incur" means, with respect to any Debt or other
obligation of any Person, to create, issue, incur (by merger,
conversion, exchange or otherwise), extend, assume, Guarantee or become
liable in respect of such Debt or other obligation or the recording, as
required pursuant to GAAP or otherwise, of any such Debt or obligation
on the balance sheet of such Person (and "Incurrence" and "Incurred"
shall have meanings correlative to the foregoing); provided, however,
that a change in GAAP that results in an obligation of such Person that
exists at such time, and is not theretofore classified as Debt,
becoming Debt shall not be deemed an Incurrence of such Debt; provided
further, however, that solely for purposes of determining compliance
with Section 4.06, amortization of debt discount shall not be deemed to
be the Incurrence of Debt, provided that in the case of Debt sold at a
discount, the amount of such Debt Incurred shall at all times be the
aggregate principal amount at Stated Maturity.
"Indenture" means this Indenture as amended or
supplemented from time to time.
"Interest Rate Agreement" means, for any Person, any
interest rate swap agreement, interest rate cap agreement, interest
rate collar agreement or other similar agreement or arrangement
designed to protect such Person against fluctuations in interest rates.
"Investment" by any Person means any direct or
indirect loan (other than advances to customers in the ordinary course
of business that are recorded as accounts receivable on the balance
sheet of such Person), advance or other extension of credit or capital
contribution (by means of transfers of cash or other Property to others
or payments for Property or services for the account or use of others,
or otherwise) to, or Incurrence of a Guarantee of any obligation of, or
purchase or acquisition of Capital Stock, bonds, notes, debentures or
other securities or evidence of Debt issued by, any other Person. In
determining the amount of any Investment made by transfer of any
Property other than cash, such Property shall be valued at its fair
market value at the time of such Investment.
"Investment Grade Rating" means a rating equal to or
higher than Baa3 (or the equivalent) by Xxxxx'x and BBB- (or the
equivalent) by S&P.
"Investment Grade Status" shall be deemed to have
been reached on the date that the Securities have an Investment Grade
Rating from both Rating Agencies.
"Issue Date" means the date on which the Initial
Securities are originally issued.
"Lien" means, with respect to any Property of any
Person, any mortgage or deed of trust, pledge, security interest,
encumbrance, hypothecation, assignment, deposit arrangement, lien,
charge or adverse claim affecting title or resulting in an encumbrance
against Property (including any Capital Lease Obligation, conditional
sale or other title retention agreement or lease in the nature thereof
or any filing or agreement to file a financing statement as debtor
under the Uniform Commercial Code or any similar statute other than to
reflect ownership by another Person of Property leased to such Person
under a lease that is not in the nature of a Capital Lease Obligation,
conditional sale or title retention agreement).
"Minority Interest" means any Capital Stock of a
Subsidiary of the Company that is not owned by the Company or another
such Subsidiary.
"Moody's" means Xxxxx'x Investors Service, Inc. or
any successor to the rating agency business thereof.
"Net Cash Proceeds" means, with respect to any
issuance or sale of Capital Stock, the cash proceeds of such issuance
or sale, net of attorneys' fees, accountants' fees, underwriters' or
placement agents' fees, discounts or commissions and brokerage,
consultant and other fees actually incurred in connection with such
issuance or sale and net of taxes paid or payable as a result thereof.
"Officer" means the Chairman of the Board, the
President, any Vice President, the Treasurer, the Secretary, the
Corporate Finance Director or the Corporate Accounting Director of the
Company.
"Officers' Certificate" means a certificate signed by
two Officers.
"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 Company or the Trustee.
"Permitted Debt" means:
(a) Debt of the Company under the Credit Facility,
provided that the aggregate principal amount of all such Debt
under the Credit Facility, together with all Permitted
Refinancing Debt Incurred in respect of Debt previously
Incurred pursuant to this clause (a), at any one time
outstanding shall not exceed the greater of (i) $175,000,000
and (ii) the sum of amounts equal to (x) 65% of the book value
of the inventory of the Company and the Restricted
Subsidiaries and (y) 85% of the book value of the accounts
receivables of the Company and the Restricted Subsidiaries, in
each case as of the end of the most recent fiscal quarter of
the Company ending at least 45 prior to the date of
determination;
(b) Capital Expenditure Debt, provided that (i) the
aggregate principal amount of such Debt does not exceed the
fair market value (on the date of the Incurrence thereof) of
the Property acquired, constructed or leased and (ii) the
aggregate principal amount of all Debt Incurred pursuant to
this clause (b), together with all Permitted Refinancing Debt
Incurred in respect of Debt previously Incurred pursuant to
this clause (b), during any calendar year does not exceed
$25,000,000 (the "Base Amount"), provided that, to the extent
not all the Base Amount is utilized to Incur such Debt in such
year, up to 50% of such Base Amount may be carried forward to
the immediately subsequent year, provided further that any
such carried-forward amount shall not be carried forward
beyond such immediately subsequent year and, with respect to
such immediately subsequent year, shall be utilized only after
all the Base Amount for such year has been utilized;
(c) Debt of the Company owing to and held by any
Wholly Owned Subsidiary and Debt of a Restricted Subsidiary
owing to and held by the Company or any Wholly Owned
Subsidiary; provided, however, that any subsequent issue or
transfer of Capital Stock or other event that results in any
such Wholly Owned Subsidiary ceasing to be a Wholly Owned
Subsidiary or any subsequent transfer of any such Debt (except
to the Company or a Wholly Owned Subsidiary) shall be deemed,
in each case, to constitute the Incurrence of such Debt by the
issuer thereof;
(d) Debt of a Restricted Subsidiary Incurred and
outstanding on or prior to the date on which such Restricted
Subsidiary was acquired by the Company or otherwise became a
Restricted Subsidiary (other than Debt Incurred as
consideration in, or to provide all or any portion of the
funds or credit support utilized to consummate, the
transaction or series of transactions pursuant to which such
Restricted Subsidiary became a Subsidiary of the Company or
was otherwise acquired by the Company), provided that at the
time such Restricted Subsidiary was acquired by the Company or
otherwise became a Restricted Subsidiary and after giving pro
forma effect to the Incurrence of such Debt, the Company would
have been able to Incur $1.00 of additional Debt pursuant to
clause (i) of Section 4.06(a);
(e) Debt under Interest Rate Agreements entered into
by the Company or a Restricted Subsidiary for the purpose of
limiting interest rate risk in the ordinary course of the
financial management of the Company or such Restricted
Subsidiary and not for speculative purposes, provided that the
obligations under such agreements are directly related to
payment obligations on Debt otherwise permitted by the terms
of Section 4.06;
(f) Debt under Currency Agreements entered into by
the Company or a Restricted Subsidiary for the purpose of
limiting currency exchange rate risks directly related to
transactions entered into by the Company or such Restricted
Subsidiary in the ordinary course of business and not for
speculative purposes;
(g) Debt in connection with one or more standby
letters of credit or performance bonds issued by the Company
in the ordinary course of business or pursuant to
self-insurance obligations and not in connection with the
borrowing of money or the obtaining of advances or credit;
(h) Debt outstanding on the Issue Date not otherwise
described in clauses (a) through (g) above;
(i) Debt (other than Debt permitted by clause (i) or
(ii) of Section 4.06(a) or the other clauses of this
paragraph) in an aggregate principal amount outstanding at any
one time not to exceed $45,000,000; and
(j) Debt under a local currency credit facility
entered into to finance the acquisition of the foreign company
contemplated by the letter of intent dated August 28, 1997,
between the Company and the other parties thereto, provided
that the aggregate principal amount outstanding, together with
all Permitted Refinancing Debt Incurred in respect of Debt
previously Incurred pursuant to this clause (j), at any one
time not to exceed $15,000,000; and
(k) Permitted Refinancing Debt Incurred in respect of
Debt Incurred pursuant to clause (i) or (ii) of Section
4.06(a) and clauses (a), (b), (d), (h) and (j) of this
paragraph, subject, in the case of clauses (a), (b) and (j) of
this paragraph, to the limitations set forth in the respective
provisos thereto.
"Permitted Liens" means:
(a) Liens to secure Debt permitted to be Incurred
under clause (b) of the definition of the term "Permitted
Debt", provided that any such Lien may not extend to any
Property of the Company or any Restricted Subsidiary, other
than the Property acquired, constructed or leased with the
proceeds of such Debt and any improvements or accessions to
such Property;
(b) Liens for taxes, assessments or governmental
charges or levies on the Property of the Company or any
Restricted Subsidiary if the same shall not at the time be
delinquent or thereafter can be paid without penalty, or are
being contested in good faith and by appropriate proceedings
promptly instituted and diligently concluded, provided that
any reserve or other appropriate provision that shall be
required in conformity with GAAP shall have been made
therefor;
(c) Liens imposed by law, such as carriers',
warehousemen's and mechanics' Liens on the Property of the
Company or any Restricted Subsidiary arising in the ordinary
course of business and securing payment of obligations which
are not more than 60 days past due or are being contested in
good faith and by appropriate proceedings;
(d) Liens on the Property of the Company or any
Restricted Subsidiary Incurred in the ordinary course of
business to secure performance of obligations with respect to
statutory or regulatory requirements, performance or
return-of-money bonds, surety bonds or other obligations of a
like nature and Incurred in a manner consistent with industry
practice, in each case which are not incurred in connection
with the borrowing of money, the obtaining of advances or
credit or the payment of the deferred purchase price of
Property and which do not in the aggregate impair in any
material respect the use of Property in the operation of the
business of the Company and the Restricted Subsidiaries taken
as a whole;
(e) Liens on Property at the time the Company or any
Restricted Subsidiary acquired such Property, including any
acquisition by means of a merger or consolidation with or into
the Company or any Restricted Subsidiary; provided, however,
that any such Lien may not extend to any other Property of the
Company or any Restricted Subsidiary; provided further,
however, that such Liens shall not have been Incurred in
anticipation or in connection with the transaction or series
of transactions pursuant to which such Property was acquired
by the Company or any Restricted Subsidiary;
(f) Liens on the Property of a Person at the time
such Person becomes a Restricted Subsidiary; provided,
however, that any such Lien may not extend to any other
Property of the Company or any other Restricted Subsidiary
which is not a direct Subsidiary of such Person; provided
further, however, that any such Lien was not Incurred in
anticipation of or in connection with the transaction or
series of transactions pursuant to which such Person became a
Restricted Subsidiary;
(g) pledges or deposits by the Company or any
Restricted Subsidiary under workmen's compensation laws,
unemployment insurance laws or similar legislation, or good
faith deposits in connection with bids, tenders, contracts
(other than for the payment of Debt) or leases to which the
Company or any Restricted Subsidiary is party, or deposits to
secure public or statutory obligations of the Company, or
deposits for the payment of rent, in each case Incurred in the
ordinary course of business;
(h) utility easements, building restrictions and such
other encumbrances or charges against real Property as are of
a nature generally existing with respect to properties of a
similar character;
(i) Liens existing on the Issue Date not otherwise
described in clauses (a) through (h) above; or
(j) Liens on the Property of the Company or any
Restricted Subsidiary to secure any Refinancing, in whole or
in part, of any Debt secured by Liens referred to in clause
(a), (e), (f) or (i) above; provided, however, that any such
Lien shall be limited to all or part of the same Property that
secured the original Lien (together with improvements and
accessions to such Property) and the aggregate principal
amount of Debt that is secured by such Lien shall not be
increased to an amount greater than the sum of (i) the
outstanding principal amount, or, if greater, the committed
amount, of the Debt secured by Liens described under clause
(a), (e), (f) or (i) above, as the case may be, at the time
the original Lien became a Permitted Lien under the Indenture
and (ii) an amount necessary to pay any premiums, fees and
other expenses incurred by the Company in connection with such
Refinancing.
"Permitted Refinancing Debt" means any Debt that
Refinances any other Debt, including any successive Refinancings, so
long as (a) such Debt is in an aggregate principal amount (or if
Incurred with original issue discount, an aggregate issue price) not in
excess of the sum of (i) the aggregate principal amount (or if Incurred
with original issue discount, the aggregate accreted value) then
outstanding of the Debt being Refinanced and (ii) an amount necessary
to pay any fees and expenses, including premiums and defeasance costs,
related to such Refinancing, (b) the Average Life of such Debt is equal
to or greater than the Average Life of the Debt being Refinanced, (c)
the Stated Maturity of such Debt is no earlier than the Stated Maturity
of the Debt being Refinanced and (d) the new Debt shall not be senior
in right of payment to the Debt that is being Refinanced; provided,
however, that Permitted Refinancing Debt shall not include (x) Debt of
a Subsidiary that Refinances Debt of the Company or (y) Debt of the
Company or a Restricted Subsidiary that Refinances Debt of an
Unrestricted Subsidiary.
"Person" means any individual, corporation,
partnership, company (including any limited liability company), joint
venture, trust, unincorporated organization, government or any agency
or political subdivision thereof or any other entity.
"Preferred Stock", as applied to the Capital Stock of
any Person, means Capital Stock of any class or classes (however
designated) which is preferred as to the payment of dividends or
distributions, or as to the distribution of assets upon any voluntary
or involuntary liquidation or dissolution of such Person, over Capital
Stock of any other class of such Person.
"principal" of the Securities means the principal
amount of the Securities plus the premium, if any, on the Securities.
"Principal Property" means any Property owned or
leased by the Company or any Subsidiary of the Company, the gross book
value of which exceeds one percent of Consolidated Net Worth.
"Property" means, with respect to any Person, all
types of real, personal, tangible, intangible or mixed property owned
by such Person whether or not included in the most recent consolidated
balance sheet of such Person and its Subsidiaries under GAAP.
"Rating Agencies" mean Xxxxx'x and S&P.
"Redeemable Dividend" means, for any dividend with
respect to Redeemable Stock, the quotient of the dividend divided by
the difference between one and the maximum statutory federal income tax
rate (expressed as a decimal number between 1 and 0) then applicable to
the issuer of such Redeemable Stock.
"Redeemable Stock" means, with respect to any Person,
any Capital Stock that by its terms (or by the terms of any security
into which it is convertible or for which it is exchangeable) or
otherwise (a) matures or is mandatorily redeemable pursuant to a
sinking fund obligation or otherwise, (b) is or may become redeemable
or repurchaseable at the option of the holder thereof, in whole or in
part, or (c) is convertible or exchangeable for Debt or Disqualified
Stock.
"Refinance" means, in respect of any Debt, to
refinance, extend, renew, refund, repay, prepay, redeem, defease or
retire, or to issue other Debt, in exchange or replacement for, such
Debt. "Refinanced" and "Refinancing" shall have correlative meanings.
"Restricted Subsidiary" means (a) any Subsidiary of
the Company after the Issue Date unless such Subsidiary shall have been
designated an Unrestricted Subsidiary as permitted or required pursuant
to Section 4.10 and (b) an Unrestricted Subsidiary which is
redesignated as a Restricted Subsidiary as permitted pursuant to
Section 4.10.
"S&P" means Standard & Poor's Ratings Service or any
successor to the rating agency business thereof.
"Sale and Leaseback Transaction" means any
arrangement with any Person (other than the Company or any Restricted
Subsidiary) providing for the leasing by the Company or a Restricted
Subsidiary of any Property owned by the Company or such Restricted
Subsidiary (except for leases for a term of not more than three years),
which property has been or is to be sold or transferred by the Company
or such Restricted Subsidiary to such person on the security of such
Property more than 365 days after the acquisition thereof or the
completion of construction and commencement of full operation thereof.
"Securities" means the Securities issued under this
Indenture.
"Significant Subsidiary" means any Subsidiary that
would be a "Significant Subsidiary" of the Company within the meaning
of Rule 1-02 under Regulation S-X promulgated by the Commission.
"Stated Maturity" means, with respect to any security
or any installment of interest thereon, the date specified in such
security as the fixed date on which the principal (or, for purposes of
Section 6.01(a), the premium, if any) of such security or such
installment of interest is due and payable.
"Subordinated Obligation" means any Debt of the
Company (whether outstanding on the Issue Date or thereafter Incurred)
which is subordinate or junior in right of payment to the Securities
pursuant to a written agreement to that effect.
"Subsidiary", in respect of any Person, means (i) any
Person of which more than 50% of the total voting power of shares of
Capital Stock entitled (without regard to the occurrence of any
contingency) to vote in the election of directors, managers or trustees
thereof is at the time owned or controlled, directly or indirectly, by
any Person or one or more of the Subsidiaries of that Person or a
combination thereof, and (ii) any partnership, joint venture or other
Person in which such Person or one or more of the Subsidiaries of that
Person or a combination thereof has the power to control by contract or
otherwise the board of directors or equivalent governing body or
otherwise controls such entity.
"TIA" means the Trust Indenture Act of 1939
(15 X.X.X.xx.xx. 77aaa-77bbbb) as in effect 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.
"Trust Officer" means the Chairman of the Board, the
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 New York Uniform
Commercial Code as in effect from time to time.
"Unrestricted Subsidiary" means (a) any Subsidiary of
the Company in existence on the Issue Date that is not a Restricted
Subsidiary; (b) any Subsidiary of an Unrestricted Subsidiary; and (c)
any Subsidiary of the Company that is designated after the Issue Date
as an Unrestricted Subsidiary as permitted pursuant to Section 4.10 and
not thereafter redesignated as a Restricted Subsidiary as permitted
pursuant thereto.
"U.S. Government Obligations" means direct
obligations (or certificates representing an ownership interest in such
obligations) of the United States of America (including any agency or
instrumentality thereof) for the payment of which the full faith and
credit of the United States of America is pledged and which are not
callable at the issuer's option.
"Voting Stock" of a corporation means all classes of
Capital Stock of such corporation then outstanding and normally
entitled (without regard to the occurrence of any contingency) to vote
in the election of directors, managers or trustees thereof.
"Wholly Owned Subsidiary" means, at any time, a
Restricted Subsidiary all the Voting Stock of which (other than
directors' qualifying shares) is at such time owned by the Company or
one or more other Wholly Owned Subsidiaries.
SECTION 1.02. Other Definitions.
Defined in
Term Section
"Bankruptcy Law" .......................6.01
"covenant defeasance option" ...........8.01(b)
"Custodian" ............................6.01
"Exchange Securities"...................Preamble
"Event of Default" .....................6.01
"Initial Securities"....................Preamble
"legal defeasance option" ..............8.01(b)
"Legal Holiday" ........................10.08
"Paying Agent" .........................2.03
"Private Exchange Securities"...........Preamble
"Registrar".............................2.03
"Securities"............................Preamble
SECTION 1.03. Incorporation by Reference of Trust
Indenture Act. This Indenture is subject to the mandatory provisions of
the TIA which are incorporated by reference in and made a part of this
Indenture. The following TIA terms have the following meanings:
"indenture securities" means the Securities;
"indenture security holder" means a Securityholder;
"indenture to be qualified" means this Indenture;
"indenture trustee" or "institutional trustee"
means the Trustee; and
"obligor" on the indenture securities means the
Company and any other obligor on the indenture securities.
All other TIA terms used in this Indenture that are
defined by the TIA, defined by TIA reference to another statute or
defined by Commission rule have the meanings assigned to them by such
definitions.
SECTION 1.04. Rules of Construction. Unless the
context otherwise requires:
(1) a term has the meaning assigned to it;
(2) an accounting term not otherwise defined has the
meaning assigned to it in accordance with GAAP;
(3) "or" is not exclusive;
(4) "including" means including without limitation;
(5) words in the singular include the plural and
words in the plural include the singular;
(6) unsecured Indebtedness shall not be deemed to be
subordinate or junior to secured Indebtedness merely by virtue
of its nature as unsecured Indebtedness;
(7) the principal amount of any noninterest bearing
or other discount security at any date shall be the principal
amount thereof that would be shown on a balance sheet of the
issuer dated such date prepared in accordance with GAAP; and
(8) the greater of the principal amount of any
Preferred Stock shall be (i) the maximum liquidation value of
such Preferred Stock or (ii) the maximum mandatory redemption
or mandatory repurchase price with respect to such Preferred
Stock, whichever is greater.
ARTICLE 2
The Securities
SECTION 2.01. Form and Dating. Provisions relating to
the Initial Securities, the Private Exchange Securities and the
Exchange Securities are set forth in Appendix A which is hereby
incorporated in and expressly made part of this Indenture. The Initial
Securities and the Trustee's certificate of authentication shall be
substantially in the form of Exhibit 1 to Appendix A which is hereby
incorporated in and expressly made a part of this Indenture. The
Exchange Securities, the Private Exchange Securities and the Trustee's
certificate of authentication shall be substantially in the form of
Exhibit A, which is hereby incorporated in and expressly made a part of
this Indenture. The Securities may have notations, legends or
endorsements required by law, stock exchange rule, agreements to which
the Company is subject, if any, or usage, provided that any such
notation, legend or endorsement is in a form acceptable to the Company.
Each Security shall be dated the date of its authentication. The terms
of the Securities set forth in Exhibit 1 to Appendix A and Exhibit A
are part of the terms of this Indenture.
SECTION 2.02. Execution and Authentication. Two
Officers shall sign the Securities for the Company by manual or
facsimile signature. The Company's seal shall be impressed, affixed,
imprinted or reproduced on the Securities and may be in facsimile form.
If an Officer whose signature is on a Security no
longer holds that office at the time the Trustee authenticates the
Security, the Security shall be valid nevertheless.
A Security shall not be valid until an authorized
officer of 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.
The Trustee shall authenticate and deliver Securities
for original issue upon a written order of the Company signed by two
Officers or by an Officer and either an Assistant Treasurer or an
Assistant Secretary of the Company. Such order shall specify the amount
of the Securities to be authenticated and the date on which the
original issue of Securities is to be authenticated. The aggregate
principal amount of Securities outstanding at any time may not exceed
that amount except as provided in Section 2.07.
The Trustee may appoint an authenticating agent
reasonably acceptable to the Company to authenticate the Securities.
Unless limited by the terms of such appointment, an authenticating
agent may authenticate Securities whenever the Trustee may do so. Each
reference in this Indenture to authentication by the Trustee includes
authentication by such agent. An authenticating agent has the same
rights as any Registrar, Paying Agent or agent for service of notices
and demands.
SECTION 2.03. Registrar and Paying Agent. The Company
shall maintain an office or agency where Securities may be presented
for registration of transfer or for exchange (the "Registrar") and an
office or agency where Securities may be presented for payment (the
"Paying Agent"). The Registrar shall keep a register of the Securities
and of their transfer and exchange. The Company may have one or more
co-registrars and one or more additional paying agents. The term
"Paying Agent" includes any additional paying agent.
The Company shall enter into an appropriate agency
agreement with any Registrar, Paying Agent or co-registrar not a party
to this Indenture, which shall incorporate the terms of the TIA. The
agreement shall implement the provisions of this Indenture that relate
to such agent. The Company shall notify the Trustee of the name and
address of any such agent. If the Company fails to maintain a Registrar
or Paying Agent, the Trustee shall act as such and shall be entitled to
appropriate compensation therefor pursuant to Section 7.07. The Company
or any of its domestically incorporated Wholly Owned Subsidiaries may
act as Paying Agent, Registrar, co-registrar or transfer agent.
The Company initially appoints the Trustee as
Registrar and Paying Agent in connection with the Securities.
SECTION 2.04. Paying Agent To Hold Money in Trust.
Prior to each due date of the principal and interest on any Security,
the Company shall deposit with the Paying Agent a sum sufficient to pay
such principal and interest when so becoming due. The Company shall
require each Paying Agent (other than the Trustee) to agree in writing
that the Paying Agent shall hold in trust for the benefit of
Securityholders or the Trustee all money held by the Paying Agent for
the payment of principal of or interest on the Securities and shall
notify the Trustee of any default by the Company in making any such
payment. If the Company or a Wholly Owned Subsidiary acts as Paying
Agent, it shall segregate the money held by it as Paying Agent and hold
it as a separate trust fund. The Company at any time may require a
Paying Agent to pay all money held by it to the Trustee and to account
for any funds disbursed by the Paying Agent. Upon complying with this
Section, the Paying Agent shall have no further liability for the money
delivered to the Trustee.
SECTION 2.05. Securityholder Lists. The Trustee shall
preserve in as current a form as is reasonably practicable the most
recent list available to it of the names and addresses of
Securityholders. If the Trustee is not the Registrar, the Company shall
furnish to the Trustee, in writing at least five Business Days before
each interest payment date and at such other times as the Trustee may
request in writing, a list in such form and as of such date as the
Trustee may reasonably require of the names and addresses of
Securityholders.
SECTION 2.06. Replacement Securities. If a mutilated
Security is surrendered to the Registrar or if the Holder of a Security
claims that such Security has been lost, destroyed or wrongfully taken,
the Company shall issue and the Trustee shall authenticate a
replacement Security if the requirements of Section 8-405 of the
Uniform Commercial Code are met and the Holder satisfies any other
reasonable requirements of the Trustee. If required by the Trustee or
the Company, such Holder shall furnish an indemnity bond sufficient in
the judgment of the Company and the Trustee to protect the Company, the
Trustee, the Paying Agent, the Registrar and any co-registrar from any
loss which any of them may suffer if a Security is replaced. The
Company and the Trustee may charge the Holder for their expenses in
replacing a Security.
Every replacement Security is an additional
obligation of the Company.
SECTION 2.07. Outstanding Securities. Securities
outstanding at any time are all Securities authenticated by the Trustee
except for those canceled by it, those delivered to it for cancelation
and those described in this Section as not outstanding. A Security does
not cease to be outstanding because the Company or an Affiliate of the
Company holds the Security.
If a Security is replaced pursuant to Section 2.06,
it ceases to be outstanding unless the Trustee and the Company receive
proof satisfactory to them that the replaced Security is held by a bona
fide purchaser.
If the Paying Agent segregates and holds in trust, in
accordance with this Indenture, on a redemption date or maturity date
money sufficient to pay all principal and interest payable on that date
with respect to the Securities (or portions thereof) to be redeemed or
maturing, as the case may be, and the Paying Agent is not prohibited
from paying such money to the Securityholders on that date pursuant to
the terms of this Indenture, then on and after that date such
Securities (or portions thereof) cease to be outstanding and interest
on them ceases to accrue.
SECTION 2.08. Temporary Securities. Until definitive
Securities are ready for delivery, the Company may prepare and the
Trustee shall authenticate temporary Securities. Temporary Securities
shall be substantially in the form of definitive Securities but may
have variations that the Company considers appropriate for temporary
Securities. Without unreasonable delay, the Company shall prepare and
the Trustee shall authenticate definitive Securities and deliver them
in exchange for temporary Securities.
SECTION 2.09. Cancelation. The Company at any time
may deliver Securities to the Trustee for cancelation. The Registrar
and the Paying Agent shall forward to the Trustee any Securities
surrendered to them for registration of transfer, exchange or payment.
The Trustee and no one else shall cancel and destroy (subject to the
record retention requirements of the Exchange Act) all Securities
surrendered for registration of transfer, exchange, payment or
cancelation and deliver a certificate of such destruction to the
Company unless the Company directs the Trustee to deliver canceled
Securities to the Company. The Company may not issue new Securities to
replace Securities it has redeemed, paid or delivered to the Trustee
for cancelation.
SECTION 2.10. Defaulted Interest. If the Company
defaults in a payment of interest on the Securities, the Company shall
pay defaulted interest (plus interest on such defaulted interest to the
extent lawful) in any lawful manner. The Company may pay the defaulted
interest to the persons who are Securityholders on a subsequent special
record date. The Company shall fix or cause to be fixed any such
special record date and payment date to the reasonable satisfaction of
the Trustee and shall promptly mail to each Securityholder a notice
that states the special record date, the payment date and the amount of
defaulted interest to be paid.
SECTION 2.11. CUSIP Numbers. The Company in issuing
the Securities may use "CUSIP" numbers (if then generally in use) and,
if so, the Trustee shall use "CUSIP" numbers in notices of redemption
as a convenience to Holders; provided, however, that any such notice
may state that no representation is made as to the correctness of such
numbers either as printed on the Securities 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 3.01. Notices to Trustee. If the Company
elects to redeem Securities pursuant to paragraph 5 of the Securities,
it shall notify the Trustee in writing of the redemption date, the
principal amount of Securities to be redeemed and that such redemption
is being made pursuant to paragraph 5 of the Securities.
The Company shall give each notice to the Trustee
provided for in this Section at least 60 days before the redemption
date unless the Trustee consents to a shorter period. Such notice shall
be accompanied by an Officers' Certificate and an Opinion of Counsel
from the Company to the effect that such redemption will comply with
the conditions herein.
SECTION 3.02. Selection of Securities To Be Redeemed.
If fewer than all the Securities are to be redeemed at any time,
selection of Securities for redemption may be made by the Trustee in
compliance with the requirements of the principal national securities
exchange, if any, on which the Securities are listed, or, if the
Securities are not so listed, on a pro rata basis, by lot or by such
other method that the Trustee shall deem fair and appropriate. 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 denominations larger
than $1,000. Securities and portions of them the Trustee selects shall
be in amounts of $1,000 or a whole multiple of $1,000. Provisions of
this Indenture that apply to Securities called for redemption also
apply to portions of Securities called for redemption. The Trustee
shall notify the Company promptly of the Securities or portions of
Securities to be redeemed.
SECTION 3.03. Notice of Redemption. At least 30 days
but not more than 60 days before a date for redemption of Securities,
the Company 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;
(5) if fewer than all the outstanding Securities are
to be redeemed, the identification and principal amounts of the
particular Securities to be redeemed;
(6) that, unless the Company defaults in making such
redemption payment or the Paying Agent is prohibited from
making such payment pursuant to the terms of this Indenture,
interest on Securities (or portion thereof) called for
redemption ceases to accrue on and after the redemption date;
and
(7) that no representation is made as to the
correctness or accuracy of the CUSIP number, if any, listed in
such notice or printed on the Securities.
At the Company's request, the Trustee shall give the
notice of redemption in the Company's name and at the Company's
expense. In such event, the Company shall provide the Trustee with the
information required by this Section. The notice of redemption may omit
the redemption price, provided that the calculation thereof is set
forth in such notice. The redemption price, as so calculated, shall be
set forth in an Officers' Certificate delivered to the Trustee no later
than two Business Days prior to the applicable redemption date.
SECTION 3.04. 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 (subject to the right of
Holders of record on the relevant record date to receive interest due
on the relevant interest payment date that is on or prior to the date
of redemption). Failure to give notice or any defect in the notice to
any Holder shall not affect the validity of the notice to any other
Holder.
SECTION 3.05. Deposit of Redemption Price. Prior to
the redemption date, the Company shall deposit with the Paying Agent
(or, if the Company or a Wholly Owned Subsidiary is the Paying Agent,
shall segregate and hold in trust) money sufficient to pay the
redemption price of and accrued interest (subject to the right of
Holders of record on the relevant record date to receive interest due
on the relevant interest payment date that is on or prior to the date
of redemption) on all Securities to be redeemed on that date other than
Securities or portions of Securities called for redemption which have
been delivered by the Company to the Trustee for cancelation.
SECTION 3.06. Securities Redeemed in Part. Upon
surrender of a Security that is redeemed in part, the Company shall
execute and the Trustee shall authenticate for the Holder (at the
Company's expense) a new Security equal in principal amount to the
unredeemed portion of the Security surrendered.
ARTICLE 4
Covenants
SECTION 4.01. Payment of Securities. The Company
shall promptly pay the principal of and interest on the Securities on
the dates and in the manner provided in the Securities and in this
Indenture. Principal and interest shall be considered paid on the date
due if on such date the Trustee or the Paying Agent holds in accordance
with this Indenture money sufficient to pay all principal and interest
then due and the Trustee or the Paying Agent, as the case may be, is
not prohibited from paying such money to the Securityholders on that
date pursuant to the terms of this Indenture.
The Company shall pay interest on overdue principal
at the rate specified therefor in the Securities, and it shall pay
interest on overdue installments of interest at the same rate to the
extent lawful.
SECTION 4.02. Commission Reports. The Company shall
provide the Trustee and Securityholders, within 15 days after it files
them with the Commission, copies of its annual report and the
information, documents and other reports which the Company is required
to file with the Commission pursuant to Section 13 or 15(d) of the
Exchange Act. Notwithstanding that the Company may not be required to
remain subject to the reporting requirements of Section 13 or 15(d) of
the Exchange Act, the Company shall continue to file with the
Commission and provide the Trustee and Securityholders with such annual
reports and such information, documents and other reports as are
specified in Sections 13 and 15(d) of the Exchange Act and applicable
to a U.S. corporation subject to such Sections, such information,
documents and reports to be so filed and provided at the times
specified for the filing of such information, documents and reports
under such Sections.
The Company also shall comply with the other provisions of TIA ss.
314(a).
SECTION 4.03. Compliance Certificate. The Company
shall deliver to the Trustee within 120 days after the end of each
fiscal year of the Company an Officers' Certificate stating that in the
course of the performance by the signers of their duties as Officers of
the Company they would normally have knowledge of any Default and
whether or not the signers know of any Default that occurred during
such period. If they do, the certificate shall describe the Default,
its status and what action the Company is taking or proposes to take
with respect thereto. The Company also shall comply with TIA ss.
314(a)(4).
SECTION 4.04. Further Instruments and Acts. Upon
request of the Trustee, the Company shall execute and deliver such
further instruments and do such further acts as may be reasonably
necessary or proper to carry out more effectively the purpose of this
Indenture.
SECTION 4.05. Corporate Existence. Subject to the
provisions of Article 5, the Company will do or cause to be done all
things necessary to and will cause each of its Subsidiaries to preserve
and keep in full force and effect its corporate existence, material
rights (charter and statutory) and franchises of the Company and each
of its Subsidiaries; provided, however, that the Company shall not be
required to preserve any such material right or franchise or the
corporate existence of any of its Subsidiaries if (a) the preservation
thereof is no longer desirable in the conduct of the business of the
Company or such Subsidiary and (b) the loss thereof is not
disadvantageous in any material respect to the Holders of the
Securities.
SECTION 4.06. Limitation on Debt. (a) The Company
shall not, and shall not permit any Restricted Subsidiary to, Incur,
directly or indirectly, any Debt unless, after giving pro forma effect
to the application of the proceeds thereof, no Default or Event of
Default would occur as a consequence of such Incurrence or be
continuing following such Incurrence and either such Debt is (i) Debt
of the Company, provided that, after giving pro forma effect to the
Incurrence of such Debt and the application of the proceeds thereof,
the Consolidated Interest Coverage Ratio would be greater than 2.00 to
1.00, (ii) Debt of the Company evidenced by the Securities or (iii)
Permitted Debt of the Company or any Restricted Subsidiary.
(b) Notwithstanding Section 4.06(a), the Company
shall not Incur any Permitted Debt if the proceeds thereof are used,
directly or indirectly, to Refinance any Subordinated Obligations
unless such Debt shall be subordinated to the Securities to at least
the same extent as such Subordinated Obligations.
(c) After the Company has reached Investment Grade
Status, and notwithstanding that the Company may later cease to have an
Investment Grade Rating from either or both of the Rating Agencies, the
Company and the Restricted Subsidiaries shall be released from their
obligations to comply with this Section 4.06. The Company shall notify
the Trustee when it reaches Investment Grade Status.
SECTION 4.07. Limitation on Liens. The Company shall
not, and shall not permit any of its Restricted Subsidiaries to,
directly or indirectly, create, Incur or otherwise cause or suffer to
exist or become effective any Liens of any kind upon any Principal
Property or any Capital Stock or Debt of any Restricted Subsidiary
(whether such Principal Property, Capital Stock or Debt are now owned
or hereafter acquired), or any interest therein or any increase or
profits therefrom, unless all payments due under the Indenture and the
Securities are secured on an equal and ratable basis with (or prior to)
the obligations so secured, except in the case of Permitted Liens or as
provided under Section 4.09.
SECTION 4.08. Limitation on Sale and Leaseback
Transactions. Except as provided under Section 4.09, the Company shall
not, and shall not permit any Restricted Subsidiaries to, enter into
any Sale and Leaseback Transaction with respect to any Principal
Property unless either (i) the Company or such Restricted Subsidiary
would be entitled, pursuant to the provisions of this Indenture, to
Incur Debt secured by a Lien on the Property to be leased in an amount
equal to the Attributable Debt with respect to such transaction without
equally and ratably securing the Securities, or (ii) the Company,
within 180 days after the effective date of such transaction, applies
to the voluntary retirement of its Funded Debt an amount equal to the
value of such transaction, defined as the greater of the net proceeds
of the sale of the Property leased in such transaction or the fair
value, in the opinion of the Board of Directors, of the leased Property
at the time such transaction was entered into.
SECTION 4.09. Exempted Debt. Notwithstanding the
provisions contained in Sections 4.07 and 4.08, the Company and its
Restricted Subsidiaries may issue, assume or guarantee Debt which would
otherwise be subject to the limitation of Section 4.07, without
securing the Securities, or may enter into Sale and Leaseback
Transactions which would otherwise be subject to the limitation of
Section 4.08, without retiring Funded Debt, or enter into a combination
of such transactions, if the sum of (i) the principal amount of such
Debt or Attributable Debt in respect of such Sale and Leaseback
Transaction, as the case may be, and (ii) the principal amount of all
other such Debt and Attributable Debt in respect of Sale and Leaseback
Transactions then outstanding, does not exceed 15% of the Consolidated
Net Tangible Assets of the Company and its Restricted Subsidiaries as
shown in the consolidated balance sheet of the Company as of the end of
the most recent fiscal quarter ending at least 45 days prior to the
date of determination.
SECTION 4.10. Designation of Restricted and
Unrestricted Subsidiaries. The Board of Directors may designate any
Subsidiary of the Company to be an Unrestricted Subsidiary if (a) the
Subsidiary to be so designated does not own any Capital Stock or Debt
of, or own or hold any Lien on any Property of, the Company or any
other Restricted Subsidiary, (b) the Subsidiary to be so designated is
not obligated under any Debt, Lien or other obligation that, if in
default, would result (with the passage of time or notice or otherwise)
in a default on any Debt of the Company or of any Restricted Subsidiary
and (c) either (i) the Subsidiary to be so designated has total assets
of $1,000 or less or (ii) such designation is effective immediately
upon such entity becoming a Subsidiary of the Company. Unless so
designated as an Unrestricted Subsidiary, any Person that becomes a
Subsidiary of the Company will be classified as a Restricted
Subsidiary; provided, however, that such Subsidiary shall not be
designated a Restricted Subsidiary and shall be automatically
classified as an Unrestricted Subsidiary if (A) such Subsidiary is a
Subsidiary of a Restricted Subsidiary (other than a Wholly Owned
Subsidiary) or (B) either of the requirements set forth in clauses (x)
and (y) of the immediately following paragraph will not be satisfied
after giving pro forma effect to such classification. Except as
provided in the first sentence of this paragraph, no Restricted
Subsidiary may be redesignated as an Unrestricted Subsidiary.
The Board of Directors may designate any Unrestricted
Subsidiary to be a Restricted Subsidiary if, immediately after giving
pro forma effect to such designation, (x) subject to Section 4.06(c),
the Company could Incur at least $1.00 of additional Debt pursuant to
clause (i) of Section 4.06(a) and (y) no Default or Event of Default
shall have occurred and be continuing or would result therefrom.
Any such designation or redesignation by the Board of
Directors will be evidenced to the Trustee by filing with the Trustee a
Board Resolution giving effect to such designation or redesignation and
an Officers' Certificate (a) certifying that such designation or
redesignation complies with the foregoing provisions and (b) giving the
effective date of such designation or redesignation, such filing with
the Trustee to occur within 45 days after the end of the fiscal quarter
of the Company in which such designation or redesignation is made (or,
in the case of a designation or redesignation made during the last
fiscal quarter of the Company's fiscal year, within 90 days after the
end of such fiscal year).
ARTICLE 5
Successor Company
SECTION 5.01. When Company May Merge or Transfer
Assets. The Company shall not consolidate or amalgamate with or merge
into any other Person or convey, transfer, lease or otherwise dispose
of its Property substantially as an entirety to any Person, and the
Company shall not permit any Person to consolidate with or merge into
the Company or convey, transfer or lease its Property substantially as
an entirety to the Company, unless:
(1) in case the Company shall consolidate or
amalgamate with or merge into another Person or convey,
transfer, lease or otherwise dispose of its Property
substantially as an entirety to any Person, the Person formed
by such consolidation or into which the Company is merged or
the Person which acquires by conveyance or transfer, or which
leases, the Property of the Company substantially as an
entirety shall be a corporation, partnership or trust, shall
be organized and validly existing under the laws of the United
States of America, any State thereof or the District of
Columbia and shall expressly assume, by an indenture
supplemental hereto, executed and delivered to the Trustee, in
form satisfactory to the Trustee, the due and punctual payment
of the principal of and interest on all the Securities and the
performance or observance of every covenant of this Indenture
on the part of the Company to be performed or observed;
(2) immediately before and after giving effect to
such transaction on a pro forma basis, no Default shall have
happened and be continuing; and
(3) the Company has delivered to the Trustee an
Officers' Certificate and an Opinion of Counsel, each stating
that such consolidation, amalgamation, merger, conveyance,
transfer, lease or other disposition and, if a supplemental
indenture is required in connection with such transaction,
such supplemental indenture comply with this Article and that
all conditions precedent herein provided for relating to such
transaction have been complied with.
SECTION 5.02. Successor Substituted. Upon any
consolidation or amalgamation by the Company with, or merger of the
Company into, any other Person or any conveyance, transfer, lease or
other disposition of the Property of the Company substantially as an
entirety in accordance with Section 5.01, the successor Person formed
by such consolidation or amalgamation or into which the Company is
merged or to which such conveyance, transfer, lease or disposition is
made shall succeed to, and be substituted for, and may exercise every
right and power of, the Company under this Indenture with the same
effect as if such successor Person had been named as the Company
herein, and thereafter, except in the case of a conveyance, transfer,
lease or disposition, the predecessor Person shall be released from its
obligations and covenants under this Indenture and the Securities.
ARTICLE 6
Defaults and Remedies
SECTION 6.01. Events of Default. "Event of Default",
wherever used herein, means any one of the following events (whatever
the reason for any such Event of Default and whether it is voluntary or
involuntary or is effected by operation of law or pursuant to any
judgment, decree or order of any court or any order, rule or regulation
of any administrative or governmental body):
(1) the Company defaults in the payment of any
interest upon any Security when it becomes due and payable,
and continuance of such default for a period of 30 days; or
(2) the Company defaults in the payment of the
principal of any Security at its Stated Maturity; or
(3) the Company fails to comply with Article 5; or
(4) default in the performance, or breach, of any
covenant or warranty of the Company in this Indenture (other
than a covenant or warranty addressed in clauses (1), (2) or
(3)), and continuance of such default or breach for a period
of 60 days after there has been given, by registered or
certified mail, to the Company by the Trustee or to the
Company and the Trustee by the Holders of at least 25% in
aggregate principal amount of the outstanding Securities a
written notice specifying such default or breach and requiring
it to be remedied and stating that such notice is a "Notice of
Default" hereunder; or
(5) acceleration of, or failure by the Company or any
Restricted Subsidiary to pay when due, the principal of any
Debt for money borrowed of the Company or any Restricted
Subsidiary having an aggregate principal amount at the time in
excess of $10,000,000 or its foreign currency equivalent at
such time, if such acceleration is not annulled, or such Debt
is not discharged, by the end of a period of 10 days after
there shall have been given, by registered or certified mail,
to the Company by the Trustee or to the Company and the
Trustee by the Holders of at least 25% in aggregate principal
amount of the outstanding Securities a written notice
specifying such default and requiring the Company to cause
such indebtedness to be discharged or cause such acceleration
to be rescinded or annulled and stating that such notice is a
"Notice of Default" hereunder; or
(6) any judgement or judgements for the payment of
money in an uninsured aggregate amount in excess of
$10,000,000 or its foreign currency equivalent at the time
shall be rendered against the Company or any Restricted
Subsidiary and shall not be waived, satisfied or discharged
for any period of 30 consecutive days during which a stay of
enforcement shall be in effect; or
(7) the Company or any Significant Subsidiary
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 any substantial part of its Property;
or
(D) makes a general assignment for the
benefit of its creditors;
or takes any comparable action under any foreign laws relating
to insolvency; or
(8) a court of competent jurisdiction enters an order
or decree under any Bankruptcy Law that:
(A) is for relief against the Company or any
Significant Subsidiary in an involuntary case;
(B) appoints a Custodian of the Company or
any Significant Subsidiary or for any substantial part
of its Property;
(C) orders the winding up or liquidation of
the Company or any Significant Subsidiary; or
(D) grants any similar relief under any
foreign laws;
and in each such case the order or decree remains unstayed
and in effect for 60 days.
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.
SECTION 6.02. Acceleration. If an Event of Default
(other than an Event of Default specified in Section 6.01(7) or 6.01(8)
with respect to the Company) occurs and is continuing, the Trustee by
notice to the Company, or the Holders of at least 25% in aggregate
principal amount of the outstanding Securities by notice to the Company
and the Trustee, may declare the principal of the Securities to be due
and payable. Upon such a declaration, such principal shall be due and
payable immediately. If an Event of Default specified in Section
6.01(7) or 6.01(8) occurs with respect to the Company, the principal of
the Securities shall automatically and without any action by the
Trustee or any Holder, become immediately due and payable.
At any time after such a declaration of acceleration
has been made and before a judgment or decree for payment of the money
due has been obtained by the Trustee as hereinafter in this Article 6
provided, the Holders of a majority in principal amount of the
outstanding Securities, by written notice to the Company and the
Trustee, may rescind and annul such declaration and its consequences if
the rescission would not conflict with any judgment or decree and if
all existing Events of Default have been cured or waived except
nonpayment of principal or interest that has become due solely because
of the acceleration. No such rescission shall affect any subsequent
Default or impair any right consequent thereto.
SECTION 6.03. Other Remedies. If an Event of Default
occurs and is continuing, the Trustee may pursue any available remedy
to collect the payment of principal of or interest on the Securities or
to enforce the performance of any provision of the Securities or this
Indenture.
The Trustee may maintain a proceeding even if it does
not possess any of the Securities or does not produce any of them in
the proceeding. A delay or omission by the Trustee or any
Securityholder in exercising any right or remedy accruing upon an Event
of Default shall not impair the right or remedy or constitute a waiver
of or acquiescence in the Event of Default. No remedy is exclusive of
any other remedy. All available remedies are cumulative.
SECTION 6.04. Waiver of Past Defaults. The Holders of
a majority in aggregate principal amount of the Securities by notice to
the Trustee may waive an existing Default and its consequences except
(i) a Default in the payment of the principal of or interest on a
Security or (ii) a Default in respect of a provision that under Section
9.02 cannot be amended without the consent of each Securityholder
affected. When a Default is waived, it is deemed cured, but no such
waiver shall extend to any subsequent or other Default or impair any
consequent right.
SECTION 6.05. Control by Majority. The Holders of a
majority in aggregate principal amount of the outstanding Securities
may direct the time, method and place of conducting any proceeding for
any remedy available to the Trustee or of exercising any trust or power
conferred on the Trustee with respect to the Securities. However, the
Trustee may refuse to follow any direction that conflicts with law or
this Indenture or, subject to Section 7.01, that the Trustee determines
is unduly prejudicial to the rights of other Securityholders or would
involve the Trustee in personal liability; provided, however, that the
Trustee may take any other action deemed proper by the Trustee that is
not inconsistent with such direction. Prior to taking any action
hereunder, the Trustee shall be entitled to reasonable indemnity
against all losses and expenses caused by taking or not taking such
action.
SECTION 6.06. Limitation on Suits. A Securityholder
may not pursue any remedy with respect to this
Indenture or the Securities unless:
(1) such Holder shall have previously given to the
Trustee written notice of a continuing Event of Default;
(2) the Holders of at least 25% in aggregate
principal amount of the Securities then outstanding shall have
made a written request, and such Holder of or Holders shall
have offered reasonable indemnity, to the Trustee to pursue
such proceeding as trustee; and
(3) the Trustee has failed to institute such
proceeding and has not received from the Holders of at least a
majority in aggregate principal amount of the Securities
outstanding a direction inconsistent with such request, within
60 days after such notice, request and offer.
The foregoing limitations on the pursuit of remedies
by a Securityholder shall not apply to a suit instituted by a Holder of
Securities for the enforcement of payment of the principal of or
interest on such Security on or after the applicable due date specified
in such Security. A Securityholder may not use this Indenture to
prejudice the rights of another Securityholder or to obtain a
preference or priority over another Securityholder.
SECTION 6.07. 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
Securities held by such Holder, on or after the respective due dates
expressed in this Securities, or to bring suit for the enforcement of
any such payment on or after such respective dates, shall not be
impaired or affected without the consent of such Holder.
SECTION 6.08. Collection Suit by Trustee. If an Event
of Default specified in Section 6.01(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 Company for the whole amount
then due and owing (together with interest on any unpaid interest to
the extent lawful) and the amounts provided for in Section 7.07.
SECTION 6.09. 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 Company, its creditors or its 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, and any Custodian in any such judicial
proceeding is hereby authorized by each Holder to make payments to the
Trustee and, in the event that the Trustee shall consent to the making
of such payments directly to the Holders, to pay to the Trustee any
amount due it for the reasonable compensation, expenses, disbursements
and advances of the Trustee, its agents and its counsel, and any other
amounts due the Trustee under Section 7.07.
SECTION 6.10. Priorities. If the Trustee collects
any money or property pursuant to this Article 6, it shall pay out the
money or property in the following order:
FIRST: to the Trustee for amounts due under
Section 7.07;
SECOND: to Securityholders for amounts due and unpaid
on the Securities for principal and interest, ratably, without
preference or priority of any kind, according to the amounts
due and payable on the Securities for principal and interest,
respectively; and
THIRD: to the Company.
The Trustee may fix a record date and payment date
for any payment to Securityholders pursuant to this Section. At least
15 days before such record date, the Company shall mail to each
Securityholder and the Trustee a notice that states the record date,
the payment date and amount to be paid.
SECTION 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 of an undertaking to pay the costs of the suit,
and the court in its discretion may assess reasonable costs, including
reasonable attorneys' fees, against any party litigant in the suit,
having due regard to the merits and good faith of the claims or
defenses made by the party litigant. This Section does not apply to a
suit by the Trustee, a suit by a Holder pursuant to Section 6.07 or a
suit by Holders of more than 10% in aggregate principal amount of the
outstanding Securities.
SECTION 6.12. Waiver of Stay or Extension Laws. The
Company (to the extent it may lawfully do so) shall not at any time
insist upon, or plead, or in any manner whatsoever claim or take the
benefit or advantage of, any stay or extension law wherever enacted,
now or at any time hereafter in force, which may affect the covenants
or the performance of this Indenture; and the Company (to the extent
that it may lawfully do so) hereby expressly waives all benefit or
advantage of any such law, and shall not hinder, delay or impede the
execution of any power herein granted to the Trustee, but shall suffer
and permit the execution of every such power as though no such law had
been enacted.
ARTICLE 7
Trustee
SECTION 7.01. Duties of Trustee. (a) If an Event of
Default has occurred and is continuing, the Trustee shall exercise the
rights and powers vested in it by this Indenture and use the same
degree of care and skill in their exercise as a prudent Person would
exercise or use under the circumstances in the conduct of such Person's
own affairs.
(b) Except during the continuance of an Event of
Default:
(1) the Trustee undertakes to perform such duties and
only such duties as are specifically set forth in this
Indenture and no implied covenants or obligations shall be
read into this Indenture against the Trustee; and
(2) in the absence of bad faith on its part, the
Trustee may conclusively rely, as to the truth of the
statements and the correctness of the opinions expressed
therein, upon certificates or opinions furnished to the
Trustee and conforming to the requirements of this Indenture.
However, the Trustee shall examine the certificates and
opinions to determine whether or not they conform to the
requirements of this Indenture.
(c) The Trustee may not be relieved from liability
for its own negligent action, its own negligent failure to act or its
own wilful misconduct, except that:
(1) this paragraph does not limit the effect of
paragraph (b) of this Section;
(2) the Trustee shall not be liable for any error of
judgment made in good faith by a Trust Officer unless it is
proved that the Trustee was negligent in ascertaining the
pertinent facts; and
(3) the Trustee shall not be liable with respect to
any action it takes or omits to take in good faith in
accordance with a direction received by it pursuant to Section
6.05.
(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 shall not be liable for interest on
any money received by it except as the Trustee may agree in writing
with the Company.
(f) Money held in trust by the Trustee need not be
segregated from other funds except to the extent required by law.
(g) No provision of this Indenture shall require the
Trustee to expend or risk its own funds or otherwise incur financial
liability in the performance of any of its duties hereunder or in the
exercise of any of its rights or powers, if it shall have reasonable
grounds to believe that repayment of such funds or adequate indemnity
against such risk or liability is not reasonably assured to it.
(h) Every provision of this Indenture relating to the
conduct or affecting the liability of or affording protection to the
Trustee shall be subject to the provisions of this Section and to the
provisions of the TIA.
SECTION 7.02. Rights of Trustee. (a) 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; provided, however, that the Trustee's
conduct does not constitute wilful misconduct or negligence.
(e) The Trustee may consult with counsel, and the
advice or opinion of counsel with respect to legal matters relating to
this Indenture and the Securities shall be full and complete
authorization and protection from liability in respect to any action
taken, omitted or suffered by it hereunder in good faith and in
accordance with the advice or opinion of such counsel.
SECTION 7.03. Individual Rights of Trustee. The
Trustee in its individual or any other capacity may become the owner or
pledgee of Securities and may otherwise deal with the Company or its
Affiliates with the same rights it would have if it were not Trustee.
Any Paying Agent, Registrar or co-registrar may do the same with like
rights. However, the Trustee must comply with Sections 7.10 and 7.11.
SECTION 7.04. Trustee's Disclaimer. The Trustee shall
not be responsible for and makes no representation as to the validity
or adequacy of this Indenture or the Securities, it shall not be
accountable for the Company's use of the proceeds from the Securities,
and it shall not be responsible for any statement of the Company in
this Indenture or in any document issued in connection with the sale of
the Securities or in the Securities other than the Trustee's
certificate of authentication.
SECTION 7.05. Notice of Defaults. If a Default occurs
and is continuing and if it is known to the Trustee, the Trustee shall
mail to each Securityholder notice of the Default within 90 days after
it occurs. Except in the case of a Default in payment of principal of
or interest on any Security, the Trustee may withhold the notice if and
so long as a committee of its Trust Officers in good faith determines
that withholding the notice is in the interests of Securityholders.
SECTION 7.06. Reports by Trustee to Holders. As
promptly as practicable after each May 15 beginning with May 15, 1998,
and in any event prior to July 15 in each year, the Trustee shall mail
to each Securityholder a brief report dated as of May 15 each year that
complies with TIA ss. 313(a), if and to the extent required by said
subsection. The Trustee also shall comply with TIA ss. 313(b).
A copy of each report at the time of its mailing to
Securityholders shall be filed with the Commission and each stock
exchange (if any) on which the Securities are listed. The Company
agrees to notify promptly the Trustee whenever the Securities become
listed on any stock exchange and of any delisting thereof.
SECTION 7.07. Compensation and Indemnity. The Company
shall pay to the Trustee from time to time reasonable compensation for
its services. The Trustee's compensation shall not be limited by any
law on compensation of a trustee of an express trust. The Company shall
reimburse the Trustee upon request for all reasonable out-of-pocket
expenses incurred or made by it, including costs of collection, in
addition to the compensation for its services. Such expenses shall
include the reasonable compensation and expenses, disbursements and
advances of the Trustee's agents, counsel, accountants and experts. The
Company shall indemnify the Trustee against any and all loss, liability
or expense (including attorneys' fees) incurred by it in connection
with the acceptance and administration of this trust and the
performance of its duties hereunder. The Trustee shall notify the
Company promptly of any claim for which it may seek indemnity. Failure
by the Trustee to so notify the Company shall not relieve the Company
of its obligations hereunder. The Company shall defend the claim and
the Trustee may have separate counsel and the Company shall pay the
fees and expenses of such counsel. The Company need not reimburse any
expense or indemnify against any loss, liability or expense incurred by
the Trustee through the Trustee's own wilful misconduct, negligence or
bad faith.
To secure the Company's payment obligations in this
Section, the Trustee shall have a lien prior to the Securities on all
money or property held or collected by the Trustee other than money or
property held in trust to pay principal of and interest on particular
Securities.
The Company's payment obligations pursuant to this
Section shall survive the discharge of this Indenture. When the Trustee
incurs expenses after the occurrence of a Default specified in Section
6.01(7) or (8), the expenses are intended to constitute expenses of
administration under the Bankruptcy Law.
SECTION 7.08. Replacement of Trustee. The Trustee may
resign at any time by so notifying the Company. The Holders of a
majority in aggregate principal amount of the outstanding Securities
may remove the Trustee by so notifying the Trustee and may appoint a
successor Trustee. The Company shall remove the Trustee if:
(1) the Trustee fails to comply with Section 7.10;
(2) the Trustee is adjudged bankrupt or insolvent;
(3) a receiver or other public officer takes charge
of the Trustee or its property; or
(4) the Trustee otherwise becomes incapable of
acting.
If the Trustee resigns or is removed by the Company
or by the Holders of a majority in aggregate principal amount of the
outstanding Securities and such Holders do not reasonably promptly
appoint a successor Trustee, or if a vacancy exists in the office of
Trustee for any reason (the Trustee in such event being referred to
herein as the retiring Trustee), the Company shall promptly appoint a
successor Trustee.
A successor Trustee shall deliver a written
acceptance of its appointment to the retiring Trustee and to the
Company. Thereupon the resignation or removal of the retiring Trustee
shall become effective, and the successor Trustee shall have all the
rights, powers and duties of the Trustee under this Indenture. The
successor Trustee shall mail a notice of its succession to
Securityholders. The retiring Trustee shall promptly transfer all
property held by it as Trustee to the successor Trustee, subject to the
lien provided for in Section 7.07.
If a successor Trustee does not take office within 60
days after the retiring Trustee resigns or is removed, the retiring
Trustee or the Holders of 10% in aggregate principal amount of the
outstanding Securities may petition any court of competent jurisdiction
for the appointment of a successor Trustee.
If the Trustee fails to comply with Section 7.10, any
Securityholder may petition any court of competent jurisdiction for the
removal of the Trustee and the appointment of a successor Trustee.
Notwithstanding the replacement of the Trustee
pursuant to this Section, the Company's obligations under Section 7.07
shall continue for the benefit of the retiring Trustee.
SECTION 7.09. Successor Trustee by Merger. If the
Trustee consolidates with, merges or converts into, or transfers all or
substantially all its corporate trust business or assets to, another
corporation or banking association, the resulting, surviving or
transferee corporation or banking association without any further act
shall be the successor Trustee.
In case at the time such successor or successors by
merger, conversion or consolidation to the Trustee shall succeed to the
trusts created by this Indenture any of the Securities shall have been
authenticated but not delivered, any such successor to the Trustee may
adopt the certificate of authentication of any predecessor trustee, and
deliver such Securities so authenticated; and in case at that time any
of the Securities shall not have been authenticated, any such successor
to the Trustee may authenticate such Securities either in the name of
any predecessor hereunder or in the name of the successor to the
Trustee; and in all such cases such certificates shall have the full
force which it is anywhere in the Securities or in this Indenture
provided that the certificate of the Trustee shall have.
SECTION 7.10. Eligibility; Disqualification. The
Trustee shall at all times satisfy the requirements of TIA ss. 310(a).
The Trustee shall have a combined capital and surplus of at least
$50,000,000 as set forth in its most recent published annual report of
condition. The Trustee shall comply with TIA ss. 310(b), subject to the
penultimate paragraph thereof; provided, however, that there shall be
excluded from the operation of TIA ss. 310(b)(1) any indenture or
indentures under which other securities or certificates of interest or
participation in other securities of the Company are outstanding if the
requirements for such exclusion set forth in TIA ss. 310(b)(1) are met.
SECTION 7.11. Preferential Collection of Claims
Against Company. The Trustee shall comply with TIA ss. 311(a),
excluding any creditor relationship listed in TIA ss. 311(b). A Trustee
who has resigned or been removed shall be subject to TIA ss. 311(a) to
the extent indicated.
ARTICLE 8
Discharge of Indenture; Defeasance
SECTION 8.01. Discharge of Liability on Securities;
Defeasance. (a) When (i) the Company delivers to the Trustee all
outstanding Securities (other than Securities replaced pursuant to
Section 2.07) for cancelation or (ii) all outstanding Securities have
become due and payable, whether at maturity or as a result of the
mailing of a notice of redemption pursuant to Article 3, and the
Company irrevocably deposits with the Trustee funds sufficient to pay
at maturity or upon redemption all outstanding Securities, including
interest thereon to maturity or such redemption date (other than
Securities replaced pursuant to Section 2.07), and if in either case
the Company pays all other sums payable hereunder by the Company, then
this Indenture shall, subject to Sections 8.01(c), cease to be of
further effect. The Trustee shall acknowledge satisfaction and
discharge of this Indenture on demand of the Company accompanied by an
Officers' Certificate and an Opinion of Counsel and at the cost and
expense of the Company.
(b) Subject to Sections 8.01(c) and 8.02, the Company
at any time may terminate (i) all its obligations under the Securities
and this Indenture ("legal defeasance option") or (ii) its obligations
under Sections 4.02, 4.06, 4.07, 4.08, 4.09 and 4.10 and the operation
of Sections 6.01(4) (to the extent relating to such other Sections),
6.01(5), 6.01(6), 6.01(7) and 6.01(8) (but, in the case of Sections
6.01(7) and (8), with respect only to Significant Subsidiaries) and its
obligations under Sections 5.01(2) and 5.01(3) and the related
operation of Section 6.01(3) ("covenant defeasance option"). The
Company may exercise its legal defeasance option notwithstanding its
prior exercise of its covenant defeasance option.
If the Company exercises its legal defeasance option,
payment of the Securities may not be accelerated because of an Event of
Default. If the Company exercises its covenant defeasance option,
payment of the Securities may not be accelerated because of an Event of
Default specified in Sections 6.01(3) and 6.01(4) (with respect to the
provisions of Articles 4 and 5 referred to in the immediately preceding
paragraph) and Sections 6.01(5), 6.01(6), 6.01(7) and 6.01(8) (but, in
the case of Sections 6.01(7) and (8), with respect only to Significant
Subsidiaries).
Upon satisfaction of the conditions set forth herein
and upon request of the Company, the Trustee shall acknowledge in
writing the discharge of those obligations that the Company terminates.
(c) Notwithstanding Sections 8.01(a) and (b), the
Company's obligations in Sections 2.03, 2.04, 2.05, 2.06,
2.07, 7.07, 7.08, 8.05 and 8.06 and Appendix A shall survive
until the Securities have been paid in full. Thereafter, the
Company's obligations in Sections 7.07 and 8.05 shall survive.
SECTION 8.02. Conditions to Defeasance. The Company
may exercise its legal defeasance option or its covenant defeasance
option only if:
(1) the Company irrevocably deposits in trust with
the Trustee money or U.S. Government Obligations for the
payment of principal of and interest on the Securities to
maturity or redemption, as the case may be;
(2) the Company delivers to the Trustee a certificate
from a nationally recognized firm of independent accountants
expressing their opinion that the payments of principal and
interest when due and without reinvestment on the deposited
U.S. Government Obligations plus any deposited money without
investment will provide cash at such times and in such amounts
as will be sufficient to pay principal and interest when due
on all the Securities to maturity or redemption, as the case
may be;
(3) 123 days pass after the deposit is made and
during the 123-day period no Default specified in Section
6.01(7) or (8) with respect to the Company occurs which is
continuing at the end of the period;
(4) the deposit does not constitute a default under
any other agreement binding on the Company;
(5) the Company delivers to the Trustee an Opinion of
Counsel to the effect that the trust resulting from the
deposit does not constitute, or is qualified as, a regulated
investment company under the Investment Company Act of 1940;
(6) in the case of the legal defeasance option, the
Company shall have delivered to the Trustee an Opinion of
Counsel stating that (i) the Company has received from, or
there has been published by, the Internal Revenue Service a
ruling, or (ii) since the date of this Indenture there has
been a change in the applicable Federal income tax law, in
either case to the effect that, and based thereon such Opinion
of Counsel shall confirm that, the Securityholders will not
recognize income, gain or loss for Federal income tax purposes
as a result of such defeasance and will be subject to Federal
income tax on the same amounts, in the same manner and at the
same times as would have been the case if such defeasance had
not occurred;
(7) in the case of the covenant defeasance option,
the Company shall have delivered to the Trustee an Opinion of
Counsel to the effect that the Securityholders will not
recognize income, gain or loss for Federal income tax purposes
as a result of such covenant defeasance and will be subject to
Federal income tax on the same amounts, in the same manner and
at the same times as would have been the case if such covenant
defeasance had not occurred; and
(8) the Company delivers to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that all
conditions precedent to the defeasance and discharge of the
Securities as contemplated by this Article 8 have been
complied with.
Before or after a deposit, the Company may make
arrangements satisfactory to the Trustee for the redemption of
Securities at a future date in accordance with Article 3.
SECTION 8.03. Application of Trust Money. The Trustee
shall hold in trust money or U.S. Government Obligations deposited with
it pursuant to this Article 8. It shall apply the deposited money and
the money from U.S. Government Obligations through the Paying Agent and
in accordance with this Indenture to the payment of principal of and
interest on the Securities.
SECTION 8.04. Repayment to Company. The Trustee and
the Paying Agent shall promptly turn over to the Company upon request
any excess money or securities held by them at any time.
Subject to any applicable abandoned property law, the
Trustee and the Paying Agent shall pay to the Company upon request any
money held by them for the payment of principal or interest that
remains unclaimed for two years, and, thereafter, Securityholders
entitled to the money must look to the Company for payment as general
creditors.
SECTION 8.05. Indemnity for Government Obligations.
The Company shall pay and shall indemnify the Trustee against any tax,
fee or other charge imposed on or assessed against deposited U.S.
Government Obligations or the principal and interest received on such
U.S. Government Obligations.
SECTION 8.06. Reinstatement. If the Trustee or Paying
Agent is unable to apply any money or U.S. Government Obligations in
accordance with this Article 8 by reason of any legal proceeding or by
reason of any order or judgment of any court or governmental authority
enjoining, restraining or otherwise prohibiting such application, the
Company's obligations under this Indenture and the Securities shall be
revived and reinstated as though no deposit had occurred pursuant to
this Article 8 until such time as the Trustee or Paying Agent is
permitted to apply all such money or U.S. Government Obligations in
accordance with this Article 8; provided, however, that, if the Company
has made any payment of interest on or principal of any Securities
because of the reinstatement of its obligations, the Company shall be
subrogated to the rights of the Holders of such Securities to receive
such payment from the money or U.S. Government Obligations held by the
Trustee or Paying Agent.
ARTICLE 9
Amendments
SECTION 9.01. Without Consent of Holders. The Company
and the Trustee may amend this Indenture or the Securities without
notice to or consent of any Securityholder:
(1) to cure any ambiguity, omission, defect or
inconsistency;
(2) to comply with Article 5;
(3) to provide for uncertificated Securities in
addition to or in place of certificated Securities; provided,
however, that the uncertificated Securities are issued in
registered form for purposes of Section 163(f) of the Code or
in a manner such that the uncertificated Securities are
described in Section 163(f)(2)(B) of the Code;
(4) to add guarantees with respect to the Securities,
or to secure the Securities;
(5) to add to the covenants of the Company for the
benefit of the Holders or to surrender any right or power
herein conferred upon the Company;
(6) to comply with any requirements of the Commission
in connection with qualifying, or maintaining the
qualification of, this Indenture under the TIA; or
(7) to make any change that does not adversely affect
the rights of any Securityholder.
After an amendment under this Section becomes
effective, the Company shall mail to Securityholders a notice briefly
describing such amendment. The failure to give such notice to all
Securityholders, or any defect therein, shall not impair or affect the
validity of an amendment under this Section.
SECTION 9.02. With Consent of Holders. The Company
and the Trustee may amend this Indenture or the Securities without
notice to any Securityholder but with the written consent of the
Holders of at least a majority in aggregate principal amount of the
outstanding Securities. However, without the consent of each
Securityholder affected thereby, an amendment or waiver may not:
(1) reduce the amount of Securities whose Holders
must consent to an amendment 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 Stated
Maturity of any Security;
(4) reduce the amount payable upon the redemption of
any Security or change the time at which any Security may be
redeemed in accordance with Article 3;
(5) make any Security payable in a place or in money
other than that stated in the Security;
(6) impair the right of any Holder to receive payment
of principal of and interest on such Holder's Securities on or
after the due dates therefor or to institute suit for
enforcement of any payment on or with respect to such Holder's
Securities; or
(7) make any change in Section 6.04 or 6.07 or the
second sentence of this Section.
It shall not be necessary for the consent of the
Holders under this Section to approve the particular form of any
proposed amendment, but it shall be sufficient if such consent approves
the substance thereof.
After an amendment under this Section becomes
effective, the Company shall mail to Securityholders a notice briefly
describing such amendment. The failure to give such notice to all
Securityholders, or any defect therein, shall not impair or affect the
validity of an amendment under this Section.
SECTION 9.03. Compliance with Trust Indenture Act.
Every amendment to this Indenture or the Securities shall comply with
the TIA as then in effect.
SECTION 9.04. Revocation and Effect of Consents and
Waivers. A consent to an amendment or a 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 or waiver
is not made on the Security. However, any such Holder or subsequent
Holder may revoke the consent or waiver as to such Holder's Security or
portion of the Security if the Trustee receives the notice of
revocation before the date the amendment or waiver becomes effective.
After an amendment or waiver becomes effective, it shall bind every
Securityholder. An amendment or waiver becomes effective upon the
execution of such amendment or waiver by the Trustee.
The Company may, but shall not be obligated to, fix a
record date for the purpose of determining the Securityholders entitled
to give their consent or take any other action described above or
required or permitted to be taken pursuant to this Indenture. If a
record date is fixed, then notwithstanding the immediately preceding
paragraph, those Persons who were Securityholders at such record date
(or their duly designated proxies), and only those Persons, shall be
entitled to give such consent or to revoke any consent previously given
or to take any such action, whether or not such Persons continue to be
Holders after such record date. No such consent shall be valid or
effective for more than 120 days after such record date.
SECTION 9.05. Notation on or Exchange of Securities.
If an amendment changes the terms of a Security, the Trustee may
require the Holder of the Security to deliver it to the Trustee. The
Trustee may place an appropriate notation on the Security regarding the
changed terms and return it to the Holder. Alternatively, if the
Company or the Trustee so determines, the Company in exchange for the
Security shall issue and the Trustee shall authenticate a new Security
that reflects the changed terms. Failure to make the appropriate
notation or to issue a new Security shall not affect the validity of
such amendment.
SECTION 9.06. Trustee To Sign Amendments. The Trustee
shall sign any amendment authorized pursuant to this Article 9 if such
amendment does not adversely affect the rights, duties, liabilities or
immunities of the Trustee. If it does, the Trustee may but need not
sign it. In signing such amendment the Trustee shall be entitled to
receive indemnity reasonably satisfactory to it and to receive, and
(subject to Section 7.01) shall be fully protected in relying upon, an
Officers' Certificate and an Opinion of Counsel stating that such
amendment is authorized or permitted by this Indenture.
SECTION 9.07. Payment for Consent. Neither the
Company nor any Affiliate of the Company shall, directly or indirectly,
pay or cause to be paid any consideration, whether by way of interest,
fee or otherwise, to any Holder for or as an inducement to any consent,
waiver or amendment of any of the terms or provisions of this Indenture
or the Securities unless such consideration is offered to be paid to
all Holders that so consent, waive or agree to amend in the time frame
set forth in solicitation documents relating to such consent, waiver or
agreement.
ARTICLE 10
Miscellaneous
SECTION 10.01. Trust Indenture Act Controls. If any
provision of this Indenture limits, qualifies or conflicts with another
provision which is required to be included in this Indenture by the
TIA, the required provision shall control.
SECTION 10.02. Notices. Any notice or communication
shall be in writing and delivered in person or mailed by first-class
mail or sent by facsimile (with a hard copy delivered in person or by
mail promptly thereafter) addressed as follows:
if to the Company:
Lilly Industries, Inc.
000 Xxxxx Xxxx Xxxxxx
Xxxxxxxxxxxx, XX 00000
Fax: (000) 000-0000
Attention: Xxxx X. Xxxxx
if to the Trustee:
Xxxxxx Trust and Savings Bank
000 Xxxx Xxxxxx, Xxxxx 0X
Xxxxxxx, XX 00000
Attention: Corporate Trust Department
The Company or the Trustee by notice to the other may
designate additional or different addresses for subsequent notices or
communications.
Any notice or communication mailed to a
Securityholder shall be mailed to the Securityholder at the
Securityholder's address as it appears on the registration books of the
Registrar and shall be sufficiently given if so mailed within the time
prescribed.
Failure to mail a notice or communication to a
Securityholder or any defect in it shall not affect its sufficiency
with respect to other Securityholders. If a notice or communication is
mailed in the manner provided above, it is duly given, whether or not
the addressee receives it.
SECTION 10.03. Communication by Holders with Other
Holders. Securityholders may communicate pursuant to TIA ss. 312(b)
with other Securityholders with respect to their rights under this
Indenture or the Securities. The Company, the Trustee, the Registrar
and anyone else shall have the protection of TIA ss. 312(c).
SECTION 10.04. Certificate and Opinion as to
Conditions Precedent. Upon any request or application by the Company to
the Trustee to take or refrain from taking any action under this
Indenture, the Company shall furnish to the Trustee:
(1) an Officers' Certificate in form and substance
reasonably satisfactory to the Trustee stating that, in the
opinion of the signers, all conditions precedent, if any,
provided for in this Indenture relating to the proposed action
have been complied with; and
(2) an Opinion of Counsel in form and substance
reasonably satisfactory to the Trustee stating that, in the
opinion of such counsel, all such conditions precedent have
been complied with.
SECTION 10.05. Statements Required in Certificate or
Opinion. Each certificate or opinion with respect to compliance with a
covenant or condition provided for in this Indenture shall include:
(1) a statement that the individual making such
certificate or opinion has read such covenant or condition;
(2) a brief statement as to the nature and scope of
the examination or investigation upon which the statements or
opinions contained in such certificate or opinion are based;
(3) a statement that, in the opinion of such
individual, he has made such examination or investigation as
is necessary to enable him to express an informed opinion as
to whether or not such covenant or condition has been complied
with; and
(4) a statement as to whether or not, in the opinion
of such individual, such covenant or condition has been
complied with.
SECTION 10.06. When Securities Disregarded. In
determining whether the Holders of the required principal amount of
Securities have concurred in any direction, waiver or consent,
Securities owned by the Company or by any Person directly or indirectly
controlling or controlled by or under direct or indirect common control
with the Company shall be disregarded and deemed not to be outstanding,
except that, for the purpose of determining whether the Trustee shall
be protected in relying on any such direction, waiver or consent, only
Securities which the Trustee knows are so owned shall be so
disregarded. Also, subject to the foregoing, only Securities
outstanding at the time shall be considered in any such determination.
SECTION 10.07. Rules by Trustee, Paying Agent and
Registrar. The Trustee may make reasonable rules for action by or a
meeting of Securityholders. The Registrar, any co-registrar the Paying
Agent may make reasonable rules for their functions.
SECTION 10.08. Legal Holidays. A "Legal Holiday" is a
Saturday, a Sunday or a day on which banking institutions are not
required to be open in the State of New York. If a payment date is a
Legal Holiday, payment shall be made 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, the record date
shall not be affected.
SECTION 10.09. Governing Law. THIS INDENTURE AND THE
SECURITIES SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE
LAWS OF THE STATE OF NEW YORK BUT WITHOUT GIVING EFFECT TO APPLICABLE
PRINCIPLES OF CONFLICTS OF LAW TO THE EXTENT THAT THE APPLICATION OF
THE LAWS OF ANOTHER JURISDICTION WOULD BE REQUIRED THEREBY.
SECTION 10.10. No Recourse Against Others. A director,
officer, employee or stockholder, as such, of the Company shall not
have any liability for any obligations of the Company under the
Securities or this Indenture or for any claim based on, in respect of
or by reason of such obligations or their creation. By accepting a
Security, each Securityholder shall waive and release all such
liability. The waiver and release shall be part of the consideration
for the issue of the Securities.
SECTION 10.11. Successors. All agreements of the Company in
this Indenture and the Securities shall bind its successors. All
agreements of the Trustee in this Indenture shall bind its successors.
SECTION 10.12. Multiple Originals. The parties may sign any
number of copies of this Indenture. Each signed copy shall be an
original, but all of them together represent the same agreement. One
signed copy is enough to prove this Indenture.
SECTION 10.13. Table of Contents; Headings. The table of
contents, cross-reference sheet and headings of the Articles and
Sections of this Indenture have been inserted for convenience of
reference only, are not intended to be considered a part hereof and
shall not modify or restrict any of the terms or provisions hereof.
IN WITNESS WHEREOF, the parties have caused this Indenture to
be duly executed as of the date first written above.
LILLY INDUSTRIES, INC.,
by /s/ Xxxx X. Xxxxx
Name: Xxxx X. Xxxxx
Title: Vice President, Chief Financial
Officer and Secretary
XXXXXX TRUST AND SAVINGS BANK,
by /s/ X. Xxxxxxxxx
Name: X. Xxxxxxxxx
Title: Vice President
PROVISIONS RELATING TO INITIAL SECURITIES,
EXCHANGE SECURITIES
AND PRIVATE EXCHANGE SECURITIES
1. Definitions
1.1 Definitions
For the purposes of this Appendix A the following terms shall
have the meanings indicated below:
"Definitive Security" means a certificated Initial
Security or, to the extent required by applicable law, a Private
Exchange Security, bearing the restricted securities legend set forth
in Section 2.3(d).
"Depository" means The Depository Trust Company, its
nominees and their respective successors.
"Exchange Securities" means the 7-3/4% Senior Notes
Due 2007 to be issued pursuant to this Indenture in connection with a
Registered Exchange Offer pursuant to the Registration Agreement.
"IAI" means an institutional "accredited investor" as
described in Rule 501(a)(1), (2), (3) or (7) under the Securities Act.
"Initial Purchasers" means Salomon Brothers Inc,
Xxxxxx Brothers Inc. and Xxxxxxxx & Co. Inc.
"Initial Securities" means the 7-3/4% Senior Notes
Due 2007, issued under this Indenture on or about the date hereof.
"New Securities" shall have the meaning set forth in
Section 1 of the Registration Agreement.
"Private Exchange" means the offer by the Company,
pursuant to Section 2(f) of the Registration Agreement, to the Initial
Purchasers to issue and deliver to each Initial Purchaser, in exchange
for the Initial Securities held by the Initial Purchaser as part of its
initial distribution, a like aggregate principal amount of Private
Exchange.
"Private Exchange Securities" means those New
Securities to be issued pursuant to this Indenture in connection with a
Private Exchange pursuant to the Registration Agreement.
"Purchase Agreement" means the Purchase Agreement
dated November 5, 1997, between the Company and the Initial Purchasers.
"QIB" means a "qualified institutional buyer" as
defined in Rule 144A.
"Registered Exchange Offer" means the offer by the
Company, pursuant to the Registration Agreement, to certain Holders of
Initial Securities, to issue and deliver to such Holders, in exchange
for the Initial Securities, a like aggregate principal amount of
Exchange Securities registered under the Securities Act.
"Registration Agreement" means the Registration
Agreement dated November 5, 1997, between the Company and the Initial
Purchasers.
"Securities" means the Initial Securities, the
Exchange Securities and the Private Exchange Securities, treated as a
single class.
"Securities Act" means the Securities Act of 1933.
"Securities Custodian" means the custodian with
respect to a Global Security (as appointed by the Depository), or any
successor person thereto who shall initially be the Trustee.
"Shelf Registration Statement" means the registration
statement issued by the Company, in connection with the offer and sale
of Initial Securities or Private Exchange Securities, pursuant to the
Registration Agreement.
"Transfer Restricted Securities" means Definitive
Securities and any other Securities that bear or are required to bear
the legend set forth in Section 2.3(d) hereto.
1.2 Other Definitions
Defined in
Term Section:
"Agent Members"2.1(b)
"Global Security"2.1(a)
"Regulation S"2.1(a)
"Rule 144A"2.1(a)
2. The Securities.
2.1 Form and Dating.
The Initial Securities are being offered and sold by
the Company pursuant to the Purchase Agreement. The Initial Securities
will be resold, initially only to QIBs in reliance on Rule 144A under
the Securities Act ("Rule 144A"), and in reliance on Regulation S under
the Securities Act ("Regulation S"). Initial Securities may thereafter
be transferred to, among others, QIBs, purchasers in reliance on
Regulation S and IAIs.
(a) Global Securities. Initial Securities shall be
issued initially in the form of one or more permanent global Securities
in definitive, fully registered form without interest coupons with the
global securities legend and restricted securities legend set forth in
Exhibit 1 hereto (each, a "Global Security"), which shall be deposited
on behalf of the purchasers of the Initial Securities represented
thereby with the Securities Custodian, and registered in the name of
the Depository or a nominee of the Depository, duly executed by the
Company and authenticated by the Trustee as provided in this Indenture.
The aggregate principal amount of the Global Securities may from time
to time be increased or decreased by adjustments made on the records of
the Trustee and the Depository or its nominee as hereinafter provided.
(b) Book-Entry Provisions. This Section 2.1(b) shall
apply only to a Global Security deposited with or on behalf of
the Depository.
The Company shall execute and the Trustee shall, in
accordance with this Section 2.1(b) and pursuant to an order of the
Company, authenticate and deliver initially one or more Global
Securities that (a) shall be registered in the name of the Depository
for such Global Security or Global Securities or the nominee of such
Depository and (b) shall be delivered by the Trustee to such Depository
or pursuant to such Depository's instructions or held by the Trustee as
Securities Custodian.
Members of, or participants in, the Depository
("Agent Members") shall have no rights under this Indenture with
respect to any Global Security held on their behalf by the Depository
or by the Trustee as the Securities Custodian or under such Global
Security, and the Depository may be treated by the Company, the Trustee
and any agent of the Company or the Trustee as the absolute owner of
such Global Security for all purposes whatsoever. Notwithstanding the
foregoing, nothing herein shall prevent the Company, the Trustee or any
agent of the Company or the Trustee from giving effect to any written
certification, proxy or other authorization furnished by the Depository
or impair, as between the Depository and its Agent Members, the
operation of customary practices of such Depository governing the
exercise of the rights of a holder of a beneficial interest in any
Global Security.
(c) Definitive Securities. Except as provided in
Section 2.3 or 2.4, owners of beneficial interests in Global
Securities will not be entitled to receive physical delivery
of certificated Securities.
2.2 Authentication. The Trustee shall authenticate and
deliver: (1) Initial Securities for original issue in an aggregate
principal amount of $100,000,000 and (2) Exchange Securities or Private
Exchange Securities for issue only in a Registered Exchange Offer or a
Private Exchange, respectively, pursuant to the Registration Agreement,
for a like principal amount of Initial Securities, in each case upon a
written order of the Company signed by two Officers or by an Officer
and either an Assistant Treasurer or an Assistant Secretary of the
Company. Such order shall specify the amount of the Securities to be
authenticated and the date on which the original issue of Securities is
to be authenticated and whether the Securities are to be Initial
Securities, Exchange Securities or Private Exchange Securities. The
aggregate principal amount of Securities outstanding at any time may
not exceed $100,000,000 except as provided in Section 2.07 of this
Indenture.
2.3 Transfer and Exchange. (a) Transfer and Exchange of Definitive
Securities. When Definitive Securities are presented to the Registrar or a
co-registrar with a request:
(x) to register the transfer of such Definitive Securities; or
(y) to exchange such Definitive Securities for an equal
principal amount of Definitive Securities of other authorized
denominations, the Registrar or co-registrar shall register the
transfer or make the exchange as requested if its reasonable
requirements for such transaction are met; provided, however, that the
Definitive Securities surrendered for transfer or exchange:
(i) shall be duly endorsed or accompanied by a
written instrument of transfer in form reasonably satisfactory
to the Company and the Registrar or co-registrar, duly
executed by the Holder thereof or his attorney duly authorized
in writing; and
(ii) are being transferred or exchanged pursuant to
an effective registration statement under the Securities Act,
pursuant to Section 2.3(b) or pursuant to clause (A), (B) or
(C) below, and are accompanied by the following additional
information and documents, as applicable:
(A) if such Definitive Securities are being
delivered to the Registrar by a Holder for
registration in the name of such Holder, without
transfer, a certification from such Holder to that
effect; or
(B) if such Definitive Securities are being
transferred to the Company, a certification to that
effect; or
(C) if such Definitive Securities are being
transferred (x) pursuant to an exemption from
registration in accordance with Rule 144 under the
Securities Act; or (y) in reliance on another
exemption from the registration requirements of the
Securities Act: (i) a certification to that effect
and (ii) if the Company so requests, an opinion of
counsel or other evidence reasonably satisfactory to
it as to the compliance with the restrictions set
forth in the legend set forth in Section 2.3(d)(i).
(b) Restrictions on Transfer of a Definitive Security
for a Beneficial Interest in a Global Security. A Definitive Security
may not be exchanged for a beneficial interest in a Global Security
except upon satisfaction of the requirements set forth below. Upon
receipt by the Trustee of a Definitive Security, duly endorsed or
accompanied by appropriate instruments of transfer, in form
satisfactory to the Trustee, together with:
(i) certification that such Definitive Security is
being transferred (A) to a QIB in accordance with Rule 144A,
(B) to an IAI that has furnished to the Trustee a signed
letter or (C) outside the United States in an offshore
transaction within the meaning of Regulation S and in
compliance with Rule 904 under the Securities Act; and
(ii) written instructions directing the Trustee to make,
or to direct the Securities Custodian to make, an adjustment
on its books and records with respect to such Global Security
to reflect an increase in the aggregate principal amount of
the Securities represented by the Global Security, such
instructions to contain information regarding the Depositary
account to be credited with such increase,
then the Trustee shall cancel such Definitive Security and cause, or
direct the Securities Custodian to cause, in accordance with the
standing instructions and procedures existing between the Depository
and the Securities Custodian, the aggregate principal amount of
Securities represented by the Global Security to be increased by the
aggregate principal amount of the Definitive Security to be exchanged
and shall credit or cause to be credited to the account of the Person
specified in such instructions a beneficial interest in the Global
Security equal to the principal amount of the Definitive Security so
canceled. If no Global Securities are then outstanding and the Global
Security has not been previously exchanged pursuant to Section 2.4, the
Company shall issue and the Trustee shall authenticate, upon written
order of the Company in the form of an Officers' Certificate, a new
Global Security in the appropriate principal amount.
(c) Transfer and Exchange of Global Securities. (i)
The transfer and exchange of Global Securities or beneficial interests
therein shall be effected through the Depository, in accordance with
this Indenture (including applicable restrictions on transfer set forth
herein, if any) and the procedures of the Depository therefor. A
transferor of a beneficial interest in a Global Security shall deliver
a written order given in accordance with the Depository's procedures
containing information regarding the participant account of the
Depository to be credited with a beneficial interest in the Global
Security and such account shall be credited in accordance with such
instructions with a beneficial interest in the Global Security and the
account of the Person making the transfer shall be debited by an amount
equal to the beneficial interest in the Global Security being
transferred. In the case of a transfer of a beneficial interest in a
Global Security to an IAI, the transferee must furnish a signed letter
to the Trustee containing certain representations and agreements (the
form of which letter can be obtained from the Trustee or the Company).
(ii) If the proposed transfer is a transfer of a
beneficial interest in one Global Security to a beneficial
interest in another Global Security, the Registrar shall
reflect on its books and records the date and an increase in
the principal amount of the Global Security to which such
interest is being transferred in an amount equal to the
principal amount of the interest to be so transferred, and the
Registrar shall reflect on its books and records the date and
a corresponding decrease in the principal amount of Global
Security from which such interest is being transferred.
(iii) Notwithstanding any other provisions of this
Appendix A (other than the provisions set forth in Section
2.4), a Global Security may not be transferred except as a
whole by the Depository to a nominee of the Depository or by a
nominee of the Depository to the Depository or another nominee
of the Depository or by the Depository or any such nominee to
a successor Depository or a nominee of such successor
Depository.
(iv) In the event that a Global Security is exchanged
for Securities in definitive registered form pursuant to
Section 2.4, prior to the consummation of a Registered
Exchange Offer or the effectiveness of a Shelf Registration
Statement with respect to such Securities, such Securities may
be exchanged only in accordance with such procedures as are
substantially consistent with the provisions of this Section
2.3 (including the certification requirements set forth on the
reverse of the Initial Securities intended to ensure that such
transfers comply with Rule 144A, Regulation S or such other
exemption from registration under the Securities Act, as the
case may be) and such other procedures as may from time to
time be adopted by the Company.
(d) Legend.
(i) Except as permitted by the following paragraphs
(ii), (iii), (iv), (v) and (vi), each Security certificate
evidencing the Global Securities and the Definitive Securities
(and all Securities issued in exchange therefor or in
substitution thereof) shall bear a legend in substantially the
following form:
"THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES
ACT"). THE HOLDER HEREOF, BY PURCHASING THIS
SECURITY, AGREES FOR THE BENEFIT OF THE COMPANY THAT
THIS SECURITY MAY NOT BE RESOLD, PLEDGED OR OTHERWISE
TRANSFERRED (X) PRIOR TO THE SECOND ANNIVERSARY OF
THE ISSUANCE HEREOF (OR A PREDECESSOR SECURITY
HERETO) OR (Y) BY ANY HOLDER THAT WAS AN AFFILIATE OF
THE COMPANY AT ANY TIME DURING THE THREE MONTHS
PRECEDING THE DATE OF SUCH TRANSFER, IN EITHER CASE
OTHER THAN (1) TO THE COMPANY, (2) SO LONG AS THIS
SECURITY IS ELIGIBLE FOR RESALE PURSUANT TO RULE 144A
UNDER THE SECURITIES ACT ("RULE 144A"), TO A PERSON
WHOM THE SELLER REASONABLY BELIEVES IS A QUALIFIED
INSTITUTIONAL BUYER WITHIN THE MEANING OF RULE 144A
PURCHASING FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF
A QUALIFIED INSTITUTIONAL BUYER TO WHOM NOTICE IS
GIVEN THAT THE RESALE, PLEDGE OR OTHER TRANSFER IS
BEING MADE IN RELIANCE ON RULE 144A (AS INDICATED BY
THE BOX CHECKED BY THE TRANSFEROR ON THE CERTIFICATE
OF TRANSFER ON THE REVERSE OF THIS SECURITY), (3) IN
AN OFFSHORE TRANSACTION IN ACCORDANCE WITH REGULATION
S UNDER THE SECURITIES ACT (AS INDICATED BY THE BOX
CHECKED BY THE TRANSFEROR ON THE CERTIFICATE OF
TRANSFER ON THE REVERSE OF THIS SECURITY), (4) TO AN
INSTITUTION THAT IS AN "ACCREDITED INVESTOR" AS
DEFINED IN RULE 501(a)(1), (2), (3) OR (7) UNDER THE
SECURITIES ACT (AS INDICATED BY THE BOX CHECKED BY
THE TRANSFEROR ON THE CERTIFICATE OF TRANSFER ON THE
REVERSE OF THIS SECURITY) THAT IS ACQUIRING THIS
SECURITY FOR INVESTMENT PURPOSES AND NOT FOR
DISTRIBUTION, AND A CERTIFICATE WHICH MAY BE OBTAINED
FROM THE COMPANY OR THE TRUSTEE IS DELIVERED BY THE
TRANSFEREE TO THE COMPANY AND THE TRUSTEE, (5)
PURSUANT TO AN EXEMPTION FROM REGISTRATION UNDER THE
SECURITIES ACT PROVIDED BY RULE 144 (IF APPLICABLE)
UNDER THE SECURITIES ACT, OR (6) PURSUANT TO AN
EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES
ACT, IN EACH CASE IN ACCORDANCE WITH ANY APPLICABLE
SECURITIES LAWS OF ANY STATE OF THE UNITED STATES. AN
INSTITUTIONAL ACCREDITED INVESTOR HOLDING THIS
SECURITY AGREES IT WILL FURNISH TO THE COMPANY AND
THE TRUSTEE SUCH CERTIFICATES AND OTHER INFORMATION
AS THEY MAY REASONABLY REQUIRE TO CONFIRM THAT ANY
TRANSFER BY IT OF THIS SECURITY COMPLIES WITH THE
FOREGOING RESTRICTIONS. THE HOLDER HEREOF, BY
PURCHASING THIS SECURITY, REPRESENTS AND AGREES FOR
THE BENEFIT OF THE COMPANY THAT IT IS (1) A QUALIFIED
INSTITUTIONAL BUYER WITHIN THE MEANING OF RULE 144A
OR (2) AN INSTITUTION THAT IS AN "ACCREDITED
INVESTOR" AS DEFINED IN RULE 501(a)(1), (2), (3) OR
(7) UNDER THE SECURITIES ACT AND THAT IT IS HOLDING
THIS SECURITY FOR INVESTMENT PURPOSES AND NOT FOR
DISTRIBUTION OR (3) A NON-U.S. PERSON OUTSIDE THE
UNITED STATES WITHIN THE MEANING OF (OR AN ACCOUNT
SATISFYING THE REQUIREMENTS OF PARAGRAPH (o)(2) OF
RULE 902 UNDER) REGULATION S UNDER THE SECURITIES
ACT."
Each Definitive Security will also bear the following
additional legend:
"IN CONNECTION WITH ANY TRANSFER, THE HOLDER WILL
DELIVER TO THE REGISTRAR AND TRANSFER AGENT SUCH
CERTIFICATES AND OTHER INFORMATION AS SUCH TRANSFER
AGENT MAY REASONABLY REQUIRE TO CONFIRM THAT THE
TRANSFER COMPLIES WITH THE FOREGOING RESTRICTIONS."
(ii) Upon any sale or transfer of a Transfer
Restricted Security (including any Transfer Restricted
Security represented by a Global Security) pursuant to Rule
144 under the Securities Act:
(A) in the case of any Transfer Restricted
Security that is a Definitive Security, the Registrar
shall permit the Holder thereof to exchange such
Transfer Restricted Security for a Definitive
Security that does not bear the legends set forth
above and rescind any restriction on the transfer of
such Transfer Restricted Security; and
(B) in the case of any Transfer Restricted
Security that is represented by a Global Security,
the Registrar shall permit the Holder thereof to
exchange such Transfer Restricted Security for a
Definitive Security that does not bear the legends
set forth above and rescind any restriction on the
transfer of such Transfer Restricted Security, in
either case,
if the Holder certifies in writing to the Registrar that its
request for such exchange was made in reliance on Rule 144
(such certification to be in the form set forth on the reverse
of the Initial Security).
(iii) After a transfer of any Initial Securities or
Private Exchange Securities during the period of the
effectiveness of a Shelf Registration Statement with respect
to such Initial Securities or Private Exchange Securities, as
the case may be, all requirements pertaining to legends on
such Initial Security or such Private Exchange Security will
cease to apply, the requirements requiring that any such
Initial Security or such Private Exchange Security issued to
certain Holders be issued in global form will cease to apply,
and a certificated or global Initial Security or Private
Exchange Security without legends will be available to the
transferee of the Holder of such Initial Securities or Private
Exchange Securities upon exchange of such transferring
Holder's certificated Initial Security or Private Exchange
Security.
(iv) Upon the consummation of a Registered Exchange
Offer with respect to the Initial Securities pursuant to which
certain Holders of such Initial Securities are offered
Exchange Securities in exchange for their Initial Securities,
all requirements pertaining to such Initial Securities that
Initial Securities be issued in global form will cease to
apply and certificated Initial Securities with the restricted
securities legend set forth in Exhibit 1 hereto will be
available to Holders of such Initial Securities that do not
exchange their Initial Securities, and Exchange Securities in
certificated or global form will be available to Holders that
exchange such Initial Securities in such Registered Exchange
Offer or such other applicable exemption from registration
under the Securities Act.
(v) Upon the consummation of a Private Exchange with
respect to the Initial Securities pursuant to which Holders of
such Initial Securities are offered Private Exchange
Securities in exchange for their Initial Securities, all
requirements pertaining to such Initial Securities that
Initial Securities issued to certain Holders be issued in
global form will continue to apply, and Private Exchange
Securities in global form with, to the extent required by
applicable law, the Restricted Securities Legend set forth in
Exhibit 1 hereto will be available to Holders that exchange
such Initial Securities in such Private Exchange.
(vi) Upon a sale or transfer of any Initial Security
acquired pursuant to Regulation S, all requirements pertaining
to legends on such Initial Security will cease to apply, the
requirements requiring any such Initial Security be issued in
global form will cease to apply, and an Initial Security in
certificated or global form without the Restricted Security
Legend will be available to the transferee of the Holder of
such Initial Securities.
(e) Cancelation or Adjustment of Global Security. At
such time as all beneficial interests in a Global Security have either
been exchanged for certificated or Definitive Securities, redeemed,
repurchased or canceled, such Global Security shall be returned by the
Depository to the Trustee for cancelation or retained and canceled by
the Trustee. At any time prior to such cancelation, if any beneficial
interest in a Global Security is exchanged for certificated or
Definitive Securities, redeemed, repurchased or canceled, the principal
amount of Securities represented by such Global Security shall be
reduced and an adjustment shall be made on the books and records of the
Trustee (if it is then the Securities Custodian for such Global
Security) with respect to such Global Security, by the Trustee or the
Securities Custodian, to reflect such reduction.
(f) Obligations with Respect to Transfers and
Exchanges of Securities.
(i) To permit registrations of transfers and
exchanges, the Company shall execute and the Trustee shall
authenticate certificated Securities, Definitive Securities
and Global Securities at the Registrar's or co-registrar's
request.
(ii) No service charge shall be made for any
registration of transfer or exchange, but the Company may
require payment of a sum sufficient to cover any transfer tax,
assessments, or similar governmental charge payable in
connection therewith (other than any such transfer taxes,
assessments or similar governmental charge payable upon
exchange or transfer pursuant to Sections 3.06 and 9.05).
(iii) The Registrar or co-registrar shall not be
required to register the transfer of or exchange of any
Security for a period beginning 15 days before the mailing of
a notice of redemption or 15 days before an interest payment
date.
(iv) Prior to the due presentation for registration
of transfer of any Security, the Company, the Trustee, the
Paying Agent, the Registrar or any co-registrar may deem and
treat the person in whose name a Security is registered as the
absolute owner of such Security for the purpose of receiving
payment of principal of and interest on such Security and for
all other purposes whatsoever, whether or not such Security is
overdue, and none of the Company, the Trustee, the Paying
Agent, the Registrar or any co-registrar shall be affected by
notice to the contrary.
(v) All Securities issued upon any transfer or
exchange pursuant to the terms of this Indenture shall
evidence the same debt and shall be entitled to the same
benefits under this Indenture as the Securities surrendered
upon such transfer or exchange.
(g) No Obligation of the Trustee.
(i) The Trustee shall have no responsibility or
obligation to any beneficial owner of a Global Security, a
member of, or a participant in the Depository or any other
Person with respect to the accuracy of the records of the
Depository or its nominee or of any participant or member
thereof, with respect to any ownership interest in the
Securities or with respect to the delivery to any participant,
member, beneficial owner or other Person (other than the
Depository) of any notice (including any notice of redemption)
or the payment of any amount, under or with respect to such
Securities. All notices and communications to be given to the
Holders and all payments to be made to Holders under the
Securities shall be given or made only to the registered
Holders (which shall be the Depository or its nominee in the
case of a Global Security). The rights of beneficial owners in
any Global Security shall be exercised only through the
Depository subject to the applicable rules and procedures of
the Depository. The Trustee may rely and shall be fully
protected in relying upon information furnished by the
Depository with respect to its members, participants and any
beneficial owners.
(ii) The Trustee shall have no obligation or duty to
monitor, determine or inquire as to compliance with any
restrictions on transfer imposed under this Indenture or under
applicable law with respect to any transfer of any interest in
any Security (including any transfers between or among
Depository participants, members or beneficial owners in any
Global Security) other than to require delivery of such
certificates and other documentation or evidence as are
expressly required by, and to do so if and when expressly
required by, the terms of this Indenture, and to examine the
same to determine substantial compliance as to form with the
express requirements hereof.
2.4 Certificated Securities.
(a) A Global Security deposited with the Depository
or with the Trustee as Securities Custodian pursuant to Section 2.1
shall be transferred to the beneficial owners thereof in the form of
certificated Securities in an aggregate principal amount equal to the
principal amount of such Global Security, in exchange for such Global
Security, only if such transfer complies with Section 2.3 and (i) the
Depository notifies the Company that it is unwilling or unable to
continue as Depository for such Global Security or if at any time such
Depository ceases to be a "clearing agency" registered under the
Exchange Act and a successor depositary is not appointed by the Company
within 90 days of such notice, or (ii) an Event of Default has occurred
and is continuing or (iii) the Company, in its sole discretion,
notifies the Trustee in writing that it elects to cause the issuance of
certificated Securities under this Indenture.
(b) Any Global Security that is transferable to the
beneficial owners thereof pursuant to this Section 2.4 shall be
surrendered by the Depository to the Trustee located in the Borough of
Manhattan, The City of New York, to be so transferred, in whole or from
time to time in part, without charge, and the Trustee shall
authenticate and deliver, upon such transfer of each portion of such
Global Security, an equal aggregate principal amount of certificated
Securities of authorized denominations. Any portion of a Global
Security transferred pursuant to this Section shall be executed,
authenticated and delivered only in denominations of $1,000 and any
integral multiple thereof and registered in such names as the
Depository shall direct. Any certificated Initial Security delivered in
exchange for an interest in the Global Security shall, except as
otherwise provided by Section 2.3(d), bear the restricted securities
legend set forth in Exhibit 1 hereto.
(c) Subject to the provisions of Section 2.4(b), the
registered Holder of a Global Security may grant proxies and otherwise
authorize any Person, including Agent Members and Persons that may hold
interests through Agent Members, to take any action which a Holder is
entitled to take under this Indenture or the Securities.
(d) In the event of the occurrence of either of the
events specified in Section 2.4(a)(i), (ii) or (iii), the Company will
promptly make available to the Trustee a reasonable supply of
certificated Securities in definitive, fully registered form without
interest coupons.
EXHIBIT 1 TO APPENDIX A
[FORM OF FACE OF INITIAL SECURITY]
[Global Securities Legend]
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED
REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION
("DTC"), NEW YORK, NEW YORK, TO THE COMPANY OR ITS AGENT FOR
REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE
ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR SUCH OTHER NAME AS IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS
MADE TO CEDE & CO., OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN
AUTHORIZED REPRESENTATIVE OF DTC) ANY TRANSFER, PLEDGE OR OTHER USE
HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH
AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
TRANSFERS OF THIS GLOBAL SECURITY SHALL BE LIMITED TO
TRANSFERS IN WHOLE, BUT NOT IN PART, TO NOMINEES OF DTC OR TO A
SUCCESSOR THEREOF OR SUCH SUCCESSOR'S NOMINEE AND TRANSFERS OF PORTIONS
OF THIS GLOBAL SECURITY SHALL BE LIMITED TO TRANSFERS MADE IN
ACCORDANCE WITH THE RESTRICTIONS SET FORTH IN THE INDENTURE REFERRED TO
ON THE REVERSE HEREOF.
[Restricted Securities Legend]
THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"). THE HOLDER
HEREOF, BY PURCHASING THIS SECURITY, AGREES FOR THE BENEFIT OF THE
COMPANY THAT THIS SECURITY MAY NOT BE RESOLD, PLEDGED OR OTHERWISE
TRANSFERRED (X) PRIOR TO THE SECOND ANNIVERSARY OF THE ISSUANCE HEREOF
(OR A PREDECESSOR SECURITY HERETO) OR (Y) BY ANY HOLDER THAT WAS AN
AFFILIATE OF THE COMPANY AT ANY TIME DURING THE THREE MONTHS PRECEDING
THE DATE OF SUCH TRANSFER, IN EITHER CASE OTHER THAN (1) TO THE
COMPANY, (2) SO LONG AS THIS SECURITY IS ELIGIBLE FOR RESALE PURSUANT
TO RULE 144A UNDER THE SECURITIES ACT ("RULE 144A"), TO A PERSON WHOM
THE SELLER REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER
WITHIN THE MEANING OF RULE 144A PURCHASING FOR ITS OWN ACCOUNT OR FOR
THE ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER TO WHOM NOTICE IS GIVEN
THAT THE RESALE, PLEDGE OR OTHER TRANSFER IS BEING MADE IN RELIANCE ON
RULE 144A (AS INDICATED BY THE BOX CHECKED BY THE TRANSFEROR ON THE
CERTIFICATE OF TRANSFER ON THE REVERSE OF THIS SECURITY), (3) IN AN
OFFSHORE TRANSACTION IN ACCORDANCE WITH REGULATION S UNDER THE
SECURITIES ACT (AS INDICATED BY THE BOX CHECKED BY THE TRANSFEROR ON
THE CERTIFICATE OF TRANSFER ON THE REVERSE OF THIS SECURITY), (4) TO AN
INSTITUTION THAT IS AN "ACCREDITED INVESTOR" AS DEFINED IN RULE
501(a)(1), (2), (3) OR (7) UNDER THE SECURITIES ACT (AS INDICATED BY
THE BOX CHECKED BY THE TRANSFEROR ON THE CERTIFICATE OF TRANSFER ON THE
REVERSE OF THIS SECURITY) THAT IS ACQUIRING THIS SECURITY FOR
INVESTMENT PURPOSES AND NOT FOR DISTRIBUTION, AND A CERTIFICATE WHICH
MAY BE OBTAINED FROM THE COMPANY OR THE TRUSTEE IS DELIVERED BY THE
TRANSFEREE TO THE COMPANY AND THE TRUSTEE, (5) PURSUANT TO AN EXEMPTION
FROM REGISTRATION UNDER THE SECURITIES ACT PROVIDED BY RULE 144 (IF
APPLICABLE) UNDER THE SECURITIES ACT, OR (6) PURSUANT TO AN EFFECTIVE
REGISTRATION STATEMENT UNDER THE SECURITIES ACT, IN EACH CASE IN
ACCORDANCE WITH ANY APPLICABLE SECURITIES LAWS OF ANY STATE OF THE
UNITED STATES. AN INSTITUTIONAL ACCREDITED INVESTOR HOLDING THIS
SECURITY AGREES IT WILL FURNISH TO THE COMPANY AND THE TRUSTEE SUCH
CERTIFICATES AND OTHER INFORMATION AS THEY MAY REASONABLY REQUIRE TO
CONFIRM THAT ANY TRANSFER BY IT OF THIS SECURITY COMPLIES WITH THE
FOREGOING RESTRICTIONS. THE HOLDER HEREOF, BY PURCHASING THIS SECURITY,
REPRESENTS AND AGREES FOR THE BENEFIT OF THE COMPANY THAT IT IS (1) A
QUALIFIED INSTITUTIONAL BUYER WITHIN THE MEANING OF RULE 144A OR (2) AN
INSTITUTION THAT IS AN "ACCREDITED INVESTOR" AS DEFINED IN RULE
501(a)(1), (2), (3) OR (7) UNDER THE SECURITIES ACT AND THAT IT IS
HOLDING THIS SECURITY FOR INVESTMENT PURPOSES AND NOT FOR DISTRIBUTION
OR (3) A NON-U.S. PERSON OUTSIDE THE UNITED STATES WITHIN THE MEANING
OF (OR AN ACCOUNT SATISFYING THE REQUIREMENTS OF PARAGRAPH (o)(2) OF
RULE 902 UNDER) REGULATION S UNDER THE SECURITIES ACT.
[IN CONNECTION WITH ANY TRANSFER, THE HOLDER WILL
DELIVER TO THE REGISTRAR AND TRANSFER AGENT SUCH CERTIFICATES AND OTHER
INFORMATION AS SUCH TRANSFER AGENT MAY REASONABLY REQUIRE TO CONFIRM
THAT THE TRANSFER COMPLIES WITH THE FOREGOING RESTRICTIONS.] No.
$100,000,000 CUSIP No.:
7-3/4% Senior Notes Due 2007
LILLY INDUSTRIES, INC., an Indiana corporation,
promises to pay to CEDE & CO., or registered assigns, the principal sum
set forth in the Schedule of Increases and Decreases in Global Security
on December 1, 2007.
Interest Payment Dates: June 1 and December 1
Record Dates: May 15 and November 15.
Additional provisions of this Security are set forth
on the other side of this Security.
LILLY INDUSTRIES, INC.,
by
-----------------------
-----------------------
[CORPORATE SEAL]
Dated: November 10, 1997
TRUSTEE'S CERTIFICATE OF
AUTHENTICATION
XXXXXX TRUST AND
SAVINGS BANK,
as Trustee, certifies that this
is one of the Securities referred
to in the Indenture.
by
-----------------------------
Authorized Signatory
[FORM OF REVERSE SIDE OF INITIAL SECURITY]
7-3/4% Senior Note Due 2007
1. Interest
(a) LILLY INDUSTRIES, INC. an Indiana corporation
(such corporation, and its successors and assigns under the Indenture
hereinafter referred to, being herein called the "Company"), promises
to pay interest on the principal amount of this Security at the rate
per annum shown above. The Company will pay interest semiannually on
June 1 and December 1 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 November 10, 1997. Interest will be
computed on the basis of a 360-day year of twelve 30-day months. The
Company shall pay interest on overdue principal at the rate borne by
the Securities plus 1% per annum, and it shall pay interest on overdue
installments of interest at the same rate to the extent lawful.
(b) The holder of this Security is entitled to the
benefits of the Registration Agreement dated November 5, 1997, between
the Company and the Purchasers named therein (the "Registration
Agreement"). Capitalized terms used in this paragraph (b) but not
defined herein have the meanings assigned to them in the Registration
Agreement. In the event that (i) neither the Exchange Offer
Registration Statement nor the Shelf Registration Statement has been
filed with the Commission on or prior to the 90th day following the
date of the original issuance of the Securities, (ii) neither the
Exchange Offer Registration Statement nor the Shelf Registration
Statement has been declared effective on or prior to the 150th day
following the date of the original issuance of the Securities, (iii)
neither the Registered Exchange Offer has been consummated nor the
Shelf Registration Statement has been declared effective on or prior to
the 180th day following the date of the original issuance of the
Securities, or (iv) after either the Exchange Offer Registration
Statement or the Shelf Registration Statement has been declared
effective, such Registration Statement thereafter ceases to be
effective or usable in connection with resales of the Securities at any
time that the Company is obligated to maintain the effectiveness
thereof pursuant to the Registration Agreement (each such event
referred to in clauses (i) through (iv) above being referred to herein
as a "Registration Default"), interest (the "Special Interest") shall
accrue (in addition to stated interest on the Securities) from and
including the date on which the first such Registration Default shall
occur to but excluding the date on which all Registration Defaults have
been cured, at a rate per annum equal to 0.25% of the principal amount
of the Securities; provided, however, that such rate per annum shall
increase by 0.25% per annum for each such Registration Default unless
and until all Registration Defaults have been cured; provided further,
however, that in no event shall the Special Interest accrue at a rate
in excess of 1.00% per annum. The Special Interest will be payable in
cash semiannually in arrears each June 1 and December 1.
2. Method of Payment
The Company will pay interest on the Securities
(except defaulted interest) to the Persons who are registered holders
of Securities at the close of business on the May 15 or November 15
next preceding the interest payment date even if Securities are
canceled after the record date and on or before the interest payment
date. Holders must surrender Securities to a Paying Agent to collect
principal payments. The Company will pay principal and interest in
money of the United States of America that at the time of payment is
legal tender for payment of public and private debts. Payments in
respect of the Securities represented by a Global Security (including
principal, premium and interest) will be made by wire transfer of
immediately available funds to the accounts specified by The Depository
Trust Company. The Company will make all payments in respect of a
certificated Security (including principal, premium and interest) by
mailing a check to the registered address of each Holder thereof;
provided, however, that payments on the Securities may also be made, in
the case of a Holder of at least $1,000,000 aggregate principal amount
of Securities, by wire transfer to a U.S. dollar account maintained by
the payee with a bank in the United States if such Holder elects
payment by wire transfer by giving written notice to the Trustee or the
Paying Agent to such effect designating such account no later than 30
days immediately preceding the relevant due date for payment (or such
other date as the Trustee may accept in its discretion).
3. Paying Agent and Registrar
Initially, Xxxxxx Trust and Savings Bank, an Illinois
banking association (the "Trustee"), will act as Paying Agent and
Registrar. The Company may appoint and change any Paying Agent,
Registrar or co-registrar without notice. The Company or any of its
domestically incorporated Wholly Owned Subsidiaries may act as Paying
Agent, Registrar, co-registrar or transfer agent.
4. Indenture
The Company issued the Securities under an Indenture
dated as of November 10, 1997 (the "Indenture"), between the Company
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.C. xx.xx. 77aaa-77bbbb) as in
effect on the date of the Indenture (the "TIA"). Terms defined in the
Indenture and not defined herein have the meanings ascribed thereto in
the Indenture. The Securities are subject to all such terms, and
Securityholders are referred to the Indenture and the TIA for a
statement of those terms.
The Securities are general unsecured obligations of
the Company limited to $100,000,000 aggregate principal amount (subject
to Section 2.07 of the Indenture). This Security is one of the Initial
Securities referred to in the Indenture issued in an aggregate
principal amount of $100,000,000. The Securities include the Initial
Securities and any Private Exchange Securities or Exchange Securities
issued in exchange for Initial Securities. The Initial Securities, the
Private Exchange Securities and the Exchange Securities are treated as
a single class of securities under the Indenture.
The Company will not, and will not permit any
Restricted Subsidiary to, Incur, directly or indirectly, any Debt
unless, after giving pro forma effect to the application of the
proceeds thereof, no Default or Event of Default would occur as a
consequence of such Incurrence or be continuing following such
Incurrence and either such Debt pro forma is (a) Debt of the Company,
provided that, after giving pro forma effect to the Incurrence of such
Debt and the application of the proceeds thereof, the Consolidated
Interest Coverage Ratio would be greater than 2.00 to 1.00, (b) Debt of
the Company evidenced by the Securities or (c) Permitted Debt of the
Company or any Restricted Subsidiary. The foregoing covenant will be
applicable to the Company and the Restricted Subsidiaries unless the
Company reaches Investment Grade Status. After the Company has reached
Investment Grade Status, and notwithstanding that the Company may later
cease to have an Investment Grade Rating from either or both of the
Rating Agencies, the Company and the Restricted Subsidiaries will be
released from their obligations to comply with the foregoing covenant.
The Company will not, and will not permit any of its
Restricted Subsidiaries to, directly or indirectly, create, Incur or
otherwise cause or suffer to exist or become effective any Liens of any
kind upon any Principal Property or any Capital Stock or Debt of any
Restricted Subsidiary (whether such Principal Property, Capital Stock
or Debt are now owned or hereafter acquired), or any interest therein
or any increase or profits therefrom, unless all payments due under the
Indenture and the Securities are secured on an equal and ratable basis
with (or prior to) the obligations so secured, except for Permitted
Liens or as provided in the second to the last paragraph of this
Section 4.
The Company will not, and will not permit any
Restricted Subsidiaries to, enter into any Sale and Leaseback
Transaction with respect to any Principal Property unless either (a)
the Company or such Restricted Subsidiary would be entitled, pursuant
to the provisions of the Indenture, to Incur Debt secured by a Lien on
the Property to be leased in an amount equal to the Attributable Debt
with respect to such transaction without equally and ratably securing
the Securities, or (b) the Company, within 180 days after the effective
date of such transaction, applies to the voluntary retirement of its
Funded Debt an amount equal to the value of such transaction, defined
as the greater of the net proceeds of the sale of the Property leased
in such transaction or the fair value, in the opinion of the Board of
Directors, of the leased Property at the time such transaction was
entered into.
Notwithstanding the foregoing limitations on Liens
and Sale and Leaseback Transactions, the Company and its Restricted
Subsidiaries may issue, assume or guarantee Debt secured by a Lien
without securing the Securities, or may enter into Sale and Leaseback
Transactions without retiring Funded Debt, or enter into a combination
of such transactions, if the sum of (x) the principal amount of such
Debt or the Attributable Debt in respect of such Sale and Leaseback
Transaction, as the case may be, and (y) the principal amount of all
other such Debt and all other Attributable Debt in respect of Sale and
Leaseback Transactions then outstanding, does not exceed 15% of the
Consolidated Net Tangible Assets of the Company and its Restricted
Subsidiaries as shown in the consolidated balance sheet of the Company
as of the end of the most recent fiscal quarter ending at least 45 days
prior to the date of determination.
The Company, without the consent of the Holders of
any of the outstanding Securities, may consolidate or amalgamate with
or merge into any other Person or convey, transfer, lease or otherwise
dispose of its Property substantially as an entirety to any Person or
may permit any Person to consolidate or amalgamate with or merge into,
or convey, transfer, lease or otherwise dispose of its Property
substantially as an entirety to, the Company; provided, however, that
(a) the successor, transferee or lessee is organized under the laws of
any United States jurisdiction; (b) the successor, transferee or
lessee, if other than the Company, expressly assumes the Company's
obligations under the Indenture and the Securities by means of a
supplemental indenture entered into with the Trustee; (c) immediately
before and after giving effect to the transaction on a pro forma basis,
no Default shall have occurred and be continuing; and (d) certain other
conditions are met. Under any consolidation or amalgamation by the
Company with, or merger by the Company into, any other Person or any
conveyance, transfer, lease or other disposition of the Property of the
Company substantially as an entirety as described in the preceding
sentence, the successor resulting from such consolidation or
amalgamation or into which the Company is merged or the transferee or
lessee to which such conveyance, transfer, lease or disposition is
made, will succeed to, and be substituted for, and may exercise every
right and power of, the Company under the Indenture, and thereafter,
except in the case of a conveyance, transfer, lease or disposition, the
predecessor (if still in existence) will be released from its
obligations and covenants under the Indenture and the Securities.
5. Optional Redemption
The Securities will be redeemable, at the option of
the Company, in whole or in part at any time or from time to time, upon
not less than 30 and not more than 60 days' notice as provided in the
Indenture, on any date prior to maturity (the "Redemption Date") at a
redemption price equal to 100% of the principal amount of the
Securities to be redeemed plus accrued interest to the Redemption Date
(subject to the right of Holders of record on the relevant record date
to receive interest due on an interest payment date that is on or prior
to the Redemption Date) plus a Make-Whole Premium, if any (the
"Redemption Price"). In no event will the Redemption Price ever be less
than 100% of the principal amount of the Securities plus accrued
interest to the Redemption Date.
The amount of the Make-Whole Premium with respect to
any Security (or portion thereof) to be redeemed will be equal to the
excess, if any, of:
(1) the sum of the present values, calculated as of
the Redemption Date, of:
(a) each interest payment that, but for such
redemption, would have been payable on the
Security (or portion thereof) being redeemed
on each interest payment date occurring
after the Redemption Date (excluding any
accrued interest for the period prior to the
Redemption Date); and
(b) the principal amount that, but for such
redemption, would have been payable at the
final maturity of the Security (or portion
thereof) being redeemed;
over
(2) the principal amount of the Security (or portion
thereof) being redeemed.
The present values of interest and principal payments
referred to in clause (i) above will be determined in accordance with
generally accepted principles of financial analysis. Such present
values will be calculated by discounting the amount of each payment of
interest or principal from the date that each such payment would have
been payable, but for the redemption, to the Redemption Date at a
discount rate equal to the Treasury Yield (as defined below) plus 50
basis points.
The Make-Whole Premium will be calculated by an
independent investment banking institution of national standing
appointed by the Company; provided, that if the Company fails to make
such appointment at least 45 Business Days prior to the Redemption
Date, or if the institution so appointed is unwilling or unable to make
such calculation, such calculation will be made by Salomon Brothers Inc
or, if such firm is unwilling or unable to make such calculation, by an
independent investment banking institution of national standing
appointed by the Trustee (in any such case, an "Independent Investment
Banker").
For purposes of determining the Make-Whole Premium,
"Treasury Yield" means a rate of interest per annum equal to the weekly
average yield to maturity of United States Treasury Notes that have a
constant maturity that corresponds to the remaining term to maturity of
the Securities, calculated to the nearest 1/12th of a year (the
"Remaining Term"). The Treasury Yield will be determined as of the
third Business Day immediately preceding the applicable Redemption
Date.
The weekly average yields of United States Treasury
Notes will be determined by reference to the most recent statistical
release published by the Federal Reserve Bank of New York and
designated "H.15(519) Selected Interest Rates" or any successor release
(the "H.15 Statistical Release"). If the H.15 Statistical Release sets
forth a weekly average yield for United States Treasury Notes having a
constant maturity that is the same as the Remaining Term, then the
Treasury Yield will be equal to such weekly average yield. In all other
cases, the Treasury Yield will be calculated by interpolation, on a
straight-line basis, between the weekly average yields on the United
States Treasury Notes that have a constant maturity closest to and
greater than the Remaining Term and the United States Treasury Notes
that have a constant maturity closest to and less than the Remaining
Term (in each case as set forth in the H.15 Statistical Release). Any
weekly average yields so calculated by interpolation will be rounded to
the nearest 1/100th of 1%, with any figure of 1/200th of 1% or above
being rounded upward. If weekly average yields for United States
Treasury Notes are not available in the H.15 Statistical Release or
otherwise, then the Treasury Yield will be calculated by interpolation
of comparable rates selected by the Independent Investment Banker.
6. Sinking Fund
The Securities are not subject to any sinking fund.
7. Notice of Redemption
Notice of redemption will be mailed by first-class
mail at least 30 days but not more than 60 days before the redemption
date to each Holder of Securities to be redeemed at his or her
registered address. Securities in denominations larger than $1,000 may
be redeemed in part but only in whole multiples of $1,000. If money
sufficient to pay the redemption price of and accrued interest on all
Securities (or portions thereof) to be redeemed on the redemption date
is deposited with the Paying Agent on or before the redemption date and
certain other conditions are satisfied, on and after such date interest
ceases to accrue on such Securities (or such portions thereof) called
for redemption.
8. Denominations; Transfer; Exchange
The Securities are in registered form without coupons
in denominations of $1,000 and whole multiples of $1,000. A Holder may
transfer or exchange Securities in accordance with the Indenture. Upon
any transfer or exchange, the Registrar and the Trustee may require a
Holder, among other things, to furnish appropriate endorsements or
transfer documents and to pay any taxes required by law or permitted by
the Indenture. The Registrar need not register the transfer of or
exchange any Securities selected for redemption (except, in the case of
a Security to be redeemed in part, the portion of the Security not to
be redeemed) or to transfer or exchange any Securities for a period of
15 days prior to a selection of Securities to be redeemed or 15 days
before an interest payment date.
9. Persons Deemed Owners
The registered Holder of this Security may be treated
as the owner of it for all purposes.
10. Unclaimed Money
If money for the payment of principal or interest
remains unclaimed for two years, the Trustee or Paying Agent shall pay
the money back to the Company at its request unless an abandoned
property law designates another Person. After any such payment, Holders
entitled to the money must look only to the Company and not to the
Trustee for payment.
11. Discharge and Defeasance
Subject to certain conditions, the Company at any
time may terminate some of or all its obligations under the Securities
and the Indenture if the Company deposits with the Trustee money or
U.S. Government Obligations for the payment of principal and interest
on the Securities to redemption or maturity, as the case may be.
12. Amendment, Waiver
Subject to certain exceptions set forth in the
Indenture, (i) the Indenture or the Securities may be amended without
prior notice to any Securityholder but with the written consent of the
Holders of at least a majority in aggregate principal amount of the
outstanding Securities and (ii) any default or noncompliance with any
provision may be waived with the written consent of the Holders of at
least a majority in principal amount of the outstanding Securities.
Subject to certain exceptions set forth in the Indenture, without the
consent of any Securityholder, the Company and the Trustee may amend
the Indenture or the Securities (i) to cure any ambiguity, omission,
defect or inconsistency, (ii) to comply with Article 5 of the
Indenture, (iii) to provide for uncertificated Securities in addition
to or in place of certificated Securities, (iv) to add guarantees with
respect to the Securities or to secure the Securities, (v) to add to
the covenants of the Company for the benefit of the Holders of the
Securities or to surrender any right power conferred upon the Company,
(vi) to comply with any requirement of the Commission in connection
with qualifying the Indenture under the TIA, or (vii) to make any
change that does not adversely affect the rights of any Securityholder.
13. Defaults and Remedies
If an Event of Default occurs and is continuing, the
Trustee or the Holders of at least 25% in principal amount of the
Securities, subject to certain limitations, may declare all the
Securities to be immediately due and payable. Certain events of
bankruptcy or insolvency of the Company are Events of Default which
shall result in the Securities being immediately due and payable upon
the occurrence of such Events of Default without any further act of the
Trustee or any Holder.
Securityholders 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
reasonable indemnity or security. Subject to certain limitations,
Holders of a majority in aggregate principal amount of the outstanding
Securities may direct the Trustee in its exercise of any trust or power
under the Indenture. The Holders of a majority in aggregate principal
amount of the outstanding Securities, by written notice to the Trustee
and the Company, may rescind any declaration of acceleration and its
consequences if the rescission would not conflict with any judgment or
decree, and if all existing Events of Default have been cured or waived
except nonpayment of principal or interest that has become due solely
because of the acceleration.
14. Trustee Dealings with the Company
Subject to certain limitations imposed by the TIA,
the Trustee under the Indenture, in its individual or any other
capacity, may become the owner or pledgee of Securities and may
otherwise deal with and collect obligations owed to it by the Company
or its Affiliates and may otherwise deal with the Company or its
Affiliates with the same rights it would have if it were not Trustee.
15. No Recourse Against Others
A director, officer, employee or stockholder, as
such, of the Company shall not have any liability for any obligations
of the Company under the Securities or the Indenture or for any claim
based on, in respect of or by reason of such obligations or their
creation. By accepting a Security, each Securityholder waives and
releases all such liability. The waiver and release are part of the
consideration for the issue of the Securities.
16. Authentication
This Security shall not be valid until an authorized
signatory of the Trustee (or an authenticating agent) manually signs
the certificate of authentication on the other side of this Security.
17. Abbreviations
Customary abbreviations may be used in the name of a
Securityholder or an assignee, such as TEN COM (=tenants in common),
TEN ENT (=tenants by the entireties), JT TEN (=joint tenants with
rights of survivorship and not as tenants in common), CUST
(=custodian), and U/G/M/A (=Uniform Gift to Minors Act).
18. Governing Law
THIS SECURITY SHALL BE GOVERNED BY, AND CONSTRUED IN
ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK BUT WITHOUT GIVING
EFFECT TO APPLICABLE PRINCIPLES OF CONFLICTS OF LAW TO THE EXTENT THAT
THE APPLICATION OF THE LAWS OF ANOTHER JURISDICTION WOULD BE REQUIRED
THEREBY.
19. CUSIP Numbers
Pursuant to a recommendation promulgated by the
Committee on Uniform Security Identification Procedures, the Company
has caused CUSIP numbers to be printed on the Securities and has
directed the Trustee to use CUSIP numbers in notices of redemption as a
convenience to Securityholders. No representation is made as to the
accuracy of such numbers either as printed on the Securities or as
contained in any notice of redemption and reliance may be placed only
on the other identification numbers placed thereon.
The Company will furnish to any Securityholder upon
written request and without charge to the Securityholder a copy of the
Indenture which has in it the text of this Security.
-------------------------------------------------------------
ASSIGNMENT FORM
To assign this Security, fill in the form below:
I or we assign and transfer this Security to
(Print or type assignee's name, address and zip code)
(Insert assignee's soc. sec. or tax I.D. No.)
and irrevocably appoint
as agent to transfer this Security on the books
of the Company. The agent may substitute another to act for him.
--------------------------------------------------------------
Date: ________________ Your Signature: _______________________
--------------------------------------------------------------
Sign exactly as your name appears on the other side of this Security.
In connection with any transfer of any of the Securities evidenced by
this certificate occurring prior to the expiration of the period
referred to in Rule 144(k) under the Securities Act of 1933 after the
later of the date of original issuance of such Securities and the last
date, if any, on which such Securities were owned by the Company or any
Affiliate of the Company, the undersigned confirms that such Securities
are being transferred in accordance with its terms:
CHECK ONE BOX BELOW
(1) G to the Company; or
(2) G pursuant to an effective registration
statement under the Securities Act of 1933; or
(3) G inside the United States to a "qualified
institutional buyer" (as defined in Rule
144A under the Securities Act of 1933) that
purchases for its own account or for the
account of a qualified institutional buyer
to whom notice is given that such transfer
is being made in reliance on Rule 144A, in
each case pursuant to and in compliance with
Rule 144A under the Securities Act of 1933;
or
(4) G inside the United States to an
institutional "accredited investor" (as
defined in Rule 501(a)(1), (2), (3) or (7)
of Regulation D under the Securities Act of
1933) that has furnished to the Trustee a
signed letter containing certain
representations and agreements (the form of
which letter can be obtained from the
Trustee or the Company); or
(5) G outside the United States in an offshore
transaction within the meaning of Regulation
S under the Securities Act in compliance
with Rule 904 under the Securities Act of
1933; or
(6) G pursuant to another available exemption from
registration provided by Rule 144 under the
Securities Act of 1933.
Unless one of the boxes is checked, the Trustee will refuse to
register any of the Securities evidenced by this certificate
in the name of any person other than the registered holder
thereof; provided, however, that if box (4), (5) or (6) is
checked, the Trustee may require, prior to registering any
such transfer of the Securities, such legal opinions,
certifications and other information as the Company has
reasonably requested to confirm that such transfer is being
made pursuant to an exemption from, or in a transaction not
subject to, the registration requirements of the Securities
Act of 1933.
Your Signature
Signature Guarantee:
Date: Signature must be guaranteed by a participant in a recognized
signature guaranty medallion program or other signature guarantor
acceptable to the Trustee
Signature of Signature Guarantee
TO BE COMPLETED BY PURCHASER IF (3) ABOVE IS CHECKED.
The undersigned represents and warrants that it is purchasing
this 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
"qualified institutional buyer" within the meaning of Rule 144A under the
Securities Act of 1933, and is aware that the sale to it is being made in
reliance on Rule 144A and acknowledges that it has received such information
regarding the Company as the undersigned has requested pursuant to Rule 144A or
has determined not to request such information and that it is aware that the
transferor is relying upon the undersigned's foregoing representations in order
to claim the exemption from registration provided by Rule 144A.
Dated: ________________ _______________________________
NOTICE: To be executed by
an executive officer
[TO BE ATTACHED TO GLOBAL SECURITIES]
SCHEDULE OF INCREASES OR DECREASES IN GLOBAL SECURITY
The initial principal amount of this Global Security is $[ ].
The following increases or decreases in this Global Security have been made:
Date of Amount of decrease Amount of increase Principal amount of Signature of
Exchange in Principal Amount in Principal Amount this Global Security authorized officer
of this Global of this Global following such of Trustee or
Security Security decrease or increase Securities Custodian
--------------- ----------------- ------------------ ------------------ ------------------
EXHIBIT A
[FORM OF FACE OF EXCHANGE SECURITY OR PRIVATE EXCHANGE SECURITY]
*/
**/
No.:$100,000,000
CUSIP No.:
7-3/4% Senior Notes Due 2007
LILLY INDUSTRIES, INC., an Indiana corporation,
promises to pay to , or
registered assigns, the principal sum of 100,000,000
Dollars on December 1, 2007.
Interest Payment
Dates: June 1 and December 1.
Record
Dates: May 15 and November 15.
*/ [If the Security is to be issued in global form add the Global
Securities Legend from Exhibit 1 to Appendix A and the attachment
from such Exhibit 1 captioned "[TO BE ATTACHED TO GLOBAL SECURITIES]
- SCHEDULE OF INCREASES OR DECREASES IN GLOBAL SECURITY".]
**/ [If the Security is a Private Exchange Security issued in a
Private Exchange to an Initial Purchaser holding an unsold portion of
its initial allotment, add, to the extent required by applicable law,
the Restricted Securities Legend from Exhibit 1 to Appendix A and
replace the Assignment Form included in this Exhibit A with the
Assignment Form included in such Exhibit 1.]
Additional provisions of this Security are set forth on the other
side of this Security.
LILLY INDUSTRIES, INC.,
by
--------------------------
--------------------------
[CORPORATE
SEAL]
Dated: November 10, 1997
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
XXXXXX TRUST AND SAVINGS BANK, as Trustee, certifies that this is one
of the Securities referred to in the Indenture.
by
------------------------
Authorized
Signatory
[FORM OF REVERSE SIDE OF EXCHANGE SECURITY OR PRIVATE EXCHANGE SECURITY]
7-3/4% Senior Note Due 2007
1. Interest
LILLY INDUSTRIES INC., an Indiana corporation (such corporation, and
its successors and assigns under the Indenture hereinafter referred
to, being herein called the "Company"), promises to pay interest on
the principal amount of this Security at the rate per annum shown
above[; provided however, that if a Registration Default (as defined
in the Registration Agreement) occurs, interest will accrue on this
Security at a rate of 0.25% per annum from and including the date on
which any such Registration Default shall occur to but excluding the
date on which all Registration Defaults have been cured] ***/. The
Company will pay interest semiannually on June 1 and December 1 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 November 10, 1997. Interest will be computed on the
basis of a 360-day year of twelve 30-day months. The Company shall
pay interest on overdue principal at the rate borne by the Securities
plus 1% per annum, and it shall pay interest on overdue installments
of interest at the same rate to the extent lawful.
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***/ Insert if at the time of issuance of the Exchange Security or
Private Exchange Security (as the case may be) neither the Registered
Exchange Offer has been consummated nor a Shelf Registration
Statement has been declared effective in accordance with the
Registration Agreement.
2. Method of Payment
The Company will pay interest on the Securities (except defaulted
interest) to the Persons who are registered holders of Securities at
the close of business on the May 15 or November 15 next preceding the
interest payment date even if Securities are canceled after the
record date and on or before the interest payment date. Holders must
surrender Securities to a Paying Agent to collect principal payments.
The Company will pay principal and interest in money of the United
States that at the time of payment is legal tender for payment of
public and private debts. Payments in respect of the Securities
represented by a Global Security (including principal, premium and
interest) will be made by wire transfer of immediately available
funds to the accounts specified by The Depository Trust Company. The
Company will make all payments in respect of a certificated Security
(including principal, premium and interest) by mailing a check to the
registered address of each Holder thereof; provided, however, that
payments on the Securities may also be made, in the case of a Holder
of at least $1,000,000 aggregate principal amount of Securities, by
wire transfer to a U.S. dollar account maintained by the payee with a
bank in the United States if such Holder elects payment by wire
transfer giving written notice to the Trustee or the Paying Agent to
such effect designating such account no later than 30 days
immediately preceding the relevant due date for payment (or such
other date as the Trustee may accept in its discretion).
3. Paying Agent and Registrar
Initially, Xxxxxx Trust and Savings Bank, an Illinois Banking
Association, (the "Trustee"), will act as Paying Agent and Registrar.
The Company may appoint and change any Paying Agent, Registrar or
co-registrar without notice. The Company or any of its domestically
incorporated Wholly Owned Subsidiaries may act as Paying Agent,
Registrar, co-registrar or transfer agent.
4. Indenture
The Company issued the Securities under an Indenture dated as of
November 10, 1997 ("Indenture"), between the Company 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.C. xx.xx. 77aaa-77bbbb) as in effect on the date
of the Indenture (the "Act"). Terms defined in the Indenture and not
defined herein have the meanings ascribed thereto in the Indenture.
The Securities are subject to all such terms, and Securityholders are
referred to the Indenture and the Act for a statement of those terms.
The Securities are general unsecured obligations of the Company
limited to $100,000,000 aggregate principal amount (subject to
Section 2.07 of the Indenture). This Security is one of the Exchange
Securities or Private Exchange Securities referred to in the
Indenture issued in exchange for Initial Securities. The Initial
Securities were issued in an aggregate principal amount of
$100,000,000. The Initial Securities, the Exchange Securities and the
Private Exchange Securities are treated as a single class of
securities under the Indenture.
The Company will not, and will not permit any Restricted Subsidiary
to, Incur, directly or indirectly, any Debt unless, after giving pro
forma effect to the application of the proceeds thereof, no Default
or Event of Default would occur as a consequence of such Incurrence
or be continuing following such Incurrence and either such Debt is
(a) Debt of the Company, provided that, after giving proforma effect
to the Incurrence of such Debt and the application of the proceeds
thereof, the Consolidated Interest Coverage Ratio would be greater
than 2.00 to 1.00, (b) Debt of the Company evidenced by the
Securities or (c) Permitted Debt of the Company or any Restricted
Subsidiary. The foregoing covenant will be applicable to the Company
and the Restricted Subsidiaries unless the Company reaches Investment
Grade Status. After the Company has reached Investment Grade Status,
and notwithstanding that the Company may later cease to have an
Investment Grade Rating from either or both of the Rating Agencies,
the Company and the Restricted Subsidiaries will be released from
their obligations to comply with the foregoing covenant.
The Company will not, and will not permit any of its Restricted
Subsidiaries to, directly or indirectly, create, Incur or otherwise
cause or suffer to exist or become effective any Liens of any kind
upon any Principal Property or any Capital Stock or Debt of any
Restricted Subsidiary (whether such Principal Property, Capital Stock
or Debt are now owned or hereafter acquired), or any interest therein
or any increase or profits therefrom, unless all payments due under
the Indenture and the Securities are secured on an equal and ratable
basis with (or prior to) the obligations so secured, except for
Permitted Liens or as provided in the second to the last paragraph of
this Section 4.
The Company will not, and will not permit any Restricted Subsidiaries
to, enter into any Sale and Leaseback Transaction with respect to any
Principal Property unless either (a) the Company or such Restricted
Subsidiary would be entitled, pursuant to the provisions of the
Indenture, to Incur Debt secured by a Lien on the Property to be
leased in an amount equal to the Attributable Debt with respect to
such transaction without equally and ratably securing the Securities,
or (b) the Company, within 180 days after the effective date of such
transaction, applies to the voluntary retirement of its Funded Debt
an amount equal to the value of such transaction, defined as the
greater of the net proceeds of the sale of the Property leased in
such transaction or the fair value, in the opinion of the Board of
Directors, of the leased Property at the time such transaction was
entered into.
Notwithstanding the foregoing limitations on Liens and Sale and
Leaseback Transactions, the Company and its Restricted Subsidiaries
may issue, assume or guarantee Debt secured by a Lien without
securing the Securities, or may enter into Sale and Leaseback
Transactions without retiring Funded Debt, or enter into a
combination of such transactions, if the sum of (x) the principal
amount of such Debt or the Attributable Debt in respect of such Sale
and Leaseback Transaction, as the case may be, and (y) the principal
amount of all other such Debt and all other Attributable Debt in
respect of Sale and Leaseback Transactions then outstanding, does not
exceed 15% of the Consolidated Net Tangible Assets of the Company and
its Restricted Subsidiaries as shown in the consolidated balance
sheet of the Company as of the end of the most recent fiscal quarter
ending at least 45 days prior to the date of determination.
The Company, without the consent of the Holders of any of the
outstanding Securities, may consolidate or amalgamate with or merge
into any other Person or convey, transfer, lease or otherwise dispose
of its Property substantially as an entirety to any Person or may
permit any Person to consolidate or amalgamate with or merge into, or
convey, transfer, lease or otherwise dispose of its Property
substantially as an entirety to, the Company; provided, however, that
(a) the successor, transferee or lessee is organized under the laws
of any United States jurisdiction; (b) the successor, transferee or
lessee, if other than the Company, expressly assumes the Company's
obligations under the Indenture and the Securities by means of a
supplemental indenture entered into with the Trustee; (c) immediately
before and after giving effect to the transaction on a pro forma
basis, no Default shall have occurred and be continuing; and (d)
certain other conditions are met. Under any consolidation or
amalgamation by the Company with, or merger by the Company into, any
other Person or any conveyance, transfer, lease or other disposition
of the Property of the Company substantially as an entirety as
described in the preceding sentence, the successor resulting from
such consolidation or amalgamation or into which the Company is
merged or the transferee or lessee to which such conveyance,
transfer, lease or disposition is made, will succeed to, and be
substituted for, and may exercise every right and power of, the
Company under the Indenture, and thereafter, except in the case of a
conveyance, transfer, lease or disposition, the predecessor (if still
in existence) will be released from its obligations and covenants
under the Indenture and the Securities.
5. Optional Redemption
The Securities will be redeemable, at the option of the Company, in
whole or in part at any time or from time to time, upon not less than
30 and not more than 60 days' notice as provided in the Indenture, on
any date prior to maturity (the "Redemption Date") at a redemption
price equal to 100% of the principal amount of the Securities to be
redeemed plus accrued interest to the Redemption Date (subject to the
right of Holders of record on the relevant record date to receive
interest due on an interest payment date that is on or prior to the
Redemption Date) plus a Make-Whole Premium, if any (the "Redemption
Price"). In no event will the Redemption Price ever be less than 100%
of the principal amount of the Securities plus accrued interest to
the Redemption Date.
The amount of the Make-Whole Premium with respect to any Security (or
portion thereof) to be redeemed will be equal to the excess, if any,
of:
(1) the sum of the present values, calculated as
of the Redemption Date, of:
(a) each interest payment that, but for such
redemption, would have been payable on the Security
(or portion thereof) being redeemed on each
interest payment date occurring after the
Redemption Date (excluding any accrued interest for
the period prior to the Redemption Date); and
(b) the principal amount that, but for such
redemption, would have been payable at the final
maturity of the Security (or portion thereof) being
redeemed;
over
(2) the principal amount of the Security
(or portion thereof) being redeemed.
The present values of interest and principal payments referred to in
clause (i) above will be determined in accordance with generally
accepted principles of financial analysis. Such present values will
be calculated by discounting the amount of each payment of interest
or principal from the date that each such payment would have been
payable, but for the redemption, to the Redemption Date at a discount
rate equal to the Treasury Yield (as defined below) plus 50 basis
points.
The Make-Whole Premium will be calculated by an independent
investment banking institution of national standing appointed by the
Company; provided, that if the Company fails to make such appointment
at least 45 Business Days prior to the Redemption Date, or if the
institution so appointed is unwilling or unable to make such
calculation, such calculation will be made by Salomon Brothers Inc
or, if such firm is unwilling or unable to make such calculation, by
an independent investment banking institution of national standing
appointed by the Trustee (in any such case, an "Independent
Investment Banker").
For purposes of determining the Make-Whole Premium, "Treasury Yield"
means a rate of interest per annum equal to the weekly average yield
to maturity of United States Treasury Notes that have a constant
maturity that corresponds to the remaining term to maturity of the
Securities, calculated to the nearest 1/12th of a year (the
"Remaining Term"). The Treasury Yield will be determined as of the
third Business Day immediately preceding the applicable Redemption
Date.
The weekly average yields of United States Treasury Notes will be
determined by reference to the most recent statistical release
published by the Federal Reserve Bank of New York and designated
"H.15(519) Selected Interest Rates" or any successor release (the
"H.15 Statistical Release"). If the H.15 Statistical Release sets
forth a weekly average yield for United States Treasury Notes having
a constant maturity that is the same as the Remaining Term, then the
Treasury Yield will be equal to such weekly average yield. In all
other cases, the Treasury Yield will be calculated by interpolation,
on a straight-line basis, between the weekly average yields on the
United States Treasury Notes that have a constant maturity closest to
and greater than the Remaining Term and the United States Treasury
Notes that have a constant maturity closest to and less than the
Remaining Term (in each case as set forth in the H.15 Statistical
Release). Any weekly average yields so calculated by interpolation
will be rounded to the nearest 1/100th of 1%, with any figure of
1/200th of 1% or above being rounded upward. If weekly average yields
for United States Treasury Notes are not available in the H.15
Statistical Release or otherwise, then the Treasury Yield will be
calculated by interpolation of comparable rates selected by the
Independent Investment Banker.
6. Sinking Fund
The Securities are not subject to any sinking fund.
7. Notice of Redemption
Notice of redemption will be mailed by first-class mail at least 30
days but not more than 60 days before the redemption date to each
Holder of Securities to be redeemed at his or her registered address.
Securities in denominations larger than $1,000 may be redeemed in
part but only in whole multiples of $1,000. If money sufficient to
pay the redemption price of and accrued interest on all Securities
(or portions thereof) to be redeemed on the redemption date is
deposited with the Paying Agent on or before the redemption date and
certain other conditions are satisfied, on and after such date
interest ceases to accrue on such Securities (or such portions
thereof) called for redemption.
8. Denominations; Transfer; Exchange
The Securities are in registered form without coupons in
denominations of $1,000 and whole multiples of $1,000. A Holder may
transfer or exchange Securities in accordance with the Indenture.
Upon any transfer or exchange, the Registrar and the Trustee may
require a Holder, among other things, to furnish appropriate
endorsements or transfer documents and to pay any taxes required by
law or permitted by the Indenture. The Registrar need not register
the transfer of or exchange any Securities selected for redemption
(except, in the case of a Security to be redeemed in part, the
portion of the Security not to be redeemed) or to transfer or
exchange any Securities for a period of 15 days prior to a selection
of Securities to be redeemed or 15 days before an interest payment
date.
9. Persons Deemed Owners
The registered Holder of this Security may be treated as the owner of
it for all purposes.
10. Unclaimed Money
If money for the payment of principal or interest remains unclaimed
for two years, the Trustee or Paying Agent shall pay the money back
to the Company at its request unless an abandoned property law
designates another Person. After any such payment, Holders entitled
to the money must look only to the Company and not to the Trustee for
payment.
11. Discharge and Defeasance
Subject to certain conditions, the Company at any time may terminate
some of or all its obligations under the Securities and the Indenture
if the Company deposits with the Trustee money or U.S. Government
Obligations for the payment of principal and interest on the
Securities to redemption or maturity, as the case may be.
12. Amendment, Waiver
Subject to certain exceptions set forth in the Indenture, (i) the
Indenture or the Securities may be amended without prior notice to
any Securityholder but with the written consent of the Holders of at
least a majority in aggregate principal amount of the outstanding
Securities and (ii) any default or noncompliance with any provision
may be waived with the written consent of the Holders of at least a
majority in principal amount of the outstanding Securities. Subject
to certain exceptions set forth in the Indenture, without the consent
of any Securityholder, the Company and the Trustee may amend the
Indenture or the Securities (i) to cure any ambiguity, omission,
defect or inconsistency, (ii) to comply with Article 5 of the
Indenture, (iii) to provide for uncertificated Securities in addition
to or in place of certificated Securities, (iv) to add guarantees
with respect to the Securities or to secure the Securities, (v) to
add to the covenants of the Company for the benefit of the Holders of
the Securities or to surrender any right power conferred upon the
Company, (vi) to comply with any requirement of the Commission in
connection with qualifying the Indenture under the TIA, or (vii) to
make any change that does not adversely affect the rights of any
Securityholder.
13. Defaults and Remedies
If an Event of Default occurs and is continuing, the Trustee or the
Holders of at least 25% in principal amount of the Securities,
subject to certain limitations, may declare all the Securities to be
immediately due and payable. Certain events of bankruptcy or
insolvency of the Company are Events of Default which shall result in
the Securities being immediately due and payable upon the occurrence
of such Events of Default without any further act of the Trustee or
any Holder.
Securityholders 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 reasonable
indemnity or security. Subject to certain limitations, Holders of a
majority in aggregate principal amount of the outstanding Securities
may direct the Trustee in its exercise of any trust or power under
the Indenture. The Holders of a majority in aggregate principal
amount of the outstanding Securities, by written notice to the
Trustee and the Company, may rescind any declaration of acceleration
and its consequences if the rescission would not conflict with any
judgment or decree, and if all existing Events of Default have been
cured or waived except nonpayment of principal or interest that has
become due solely because of the acceleration.
14. Trustee Dealings with the Company
Subject to certain limitations imposed by the TIA, the Trustee under
the Indenture, in its individual or any other capacity, may become
the owner or pledgee of Securities and may otherwise deal with and
collect obligations owed to it by the Company or its Affiliates and
may otherwise deal with the Company or its Affiliates with the same
rights it would have if it were not Trustee.
15. No Recourse Against Others
A director, officer, employee or stockholder, as such, of the Company
shall not have any liability for any obligations of the Company under
the Securities or the Indenture or for any claim based on, in respect
of or by reason of such obligations or their creation. By accepting a
Security, each Securityholder waives and releases all such liability.
The waiver and release are part of the consideration for the issue of
the Securities.
16. Authentication
This Security shall not be valid until an authorized
signatory of the Trustee (or an authenticating
agent) manually signs the certificate of
authentication on the other side of this Security.
17. Abbreviations
Customary abbreviations may be used in the name of a Securityholder
or an assignee, such as TEN COM (=tenants in common), TEN ENT
(=tenants by the entireties), JT TEN (=joint tenants with rights of
survivorship and not as tenants in common), CUST (=custodian), and
U/G/M/A (=Uniform Gift to Minors Act).
18. Governing Law
THIS SECURITY SHALL BE GOVERNED BY, AND
CONSTRUED IN ACCORDANCE WITH, THE
LAWS OF THE STATE OF NEW YORK
BUT WITHOUT GIVING EFFECT TO APPLICABLE
PRINCIPLES OF CONFLICTS OF LAW TO THE EXTENT THAT
THE APPLICATION OF THE LAWS OF
ANOTHER JURISDICTION WOULD BE REQUIRED THEREBY.
19. CUSIP Numbers
Pursuant to a recommendation promulgated by the Committee on Uniform
Security Identification Procedures, the Company has caused CUSIP
numbers to be printed on the Securities and has directed the Trustee
to use CUSIP numbers in notices of redemption as a convenience to
Securityholders. No representation is made as to the accuracy of such
numbers either as printed on the Securities or as contained in any
notice of redemption and reliance may be placed only on the other
identification numbers placed thereon.
The Company will furnish to any Securityholder upon written request
and without charge to the Securityholder a copy of the Indenture
which has in it the text of this Security.
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ASSIGNMENT
FORM
To assign this Security, fill in the form below:
I or we assign and transfer this Security to
(Print or type assignee's name, address and zip code)
(Insert assignee's soc. sec. or tax I.D. No.)
and irrevocably appoint as agent to transfer
this Security on the books of the Company.
The agent may substitute another to act for him.
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Date:
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Your
Signature:
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Sign exactly as your name appears on the other side of this Security.
