EXECUTION COPY
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FIRST BRANDS CORPORATION
TO
THE BANK OF NEW YORK,
TRUSTEE
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INDENTURE
DATED AS OF MARCH 1, 1997
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TABLE OF CONTENTS
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RECITALS OF THE COMPANY....................................................................... 1
ARTICLE I
Definitions and Other Provisions
of General Application
SECTION 1.01. Definitions....................................................... 1
SECTION 1.02. Compliance Certificates and Opinions.............................. 10
SECTION 1.03. Form of Documents Delivered to
Trustee...................................................... 11
SECTION 1.04. Acts of Holders................................................... 11
SECTION 1.05. Notices, Etc., to Trustee and Company............................. 12
SECTION 1.06. Notice to Holders; Waiver......................................... 13
SECTION 1.07. Compliance with Trust Indenture Act............................... 13
SECTION 1.08. Effect of Headings and Table of
Contents..................................................... 14
SECTION 1.09. Successors and Assigns............................................ 14
SECTION 1.10. Separability Clause............................................... 14
SECTION 1.11. Benefits of Indenture............................................. 14
SECTION 1.12. Governing Law..................................................... 14
SECTION 1.13. Legal Holidays.................................................... 14
ARTICLE II
Security Forms
SECTION 2.01. Forms Generally................................................... 15
SECTION 2.02. Form of Face of Security.......................................... 15
SECTION 2.03. Form of Reverse of Security....................................... 20
SECTION 2.04. Form of Trustee's Certificate of
Authentication............................................... 31
SECTION 2.05. Form of Legend for Global Securities.............................. 31
SECTION 2.06 Form of Legend on Restricted
Securities................................................... 32
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ARTICLE III
The Securities
SECTION 3.01. Title and Terms................................................... 32
SECTION 3.02. Denominations..................................................... 34
SECTION 3.03. Execution, Authentication, Delivery
and Dating................................................... 34
SECTION 3.04. Temporary Securities.............................................. 37
SECTION 3.05. Registration, Registration of
Transfer and Exchange........................................ 37
SECTION 3.06. Mutilated, Destroyed, Lost and Stolen
Securities................................................... 40
SECTION 3.07. Payment of Interest; Interest Rights
Preserved.................................................... 41
SECTION 3.08. Persons Deemed Owners............................................. 43
SECTION 3.09. Cancelation....................................................... 44
SECTION 3.10. Computation of Interest........................................... 44
SECTION 3.11. CUSIP Number...................................................... 44
SECTION 3.12. Book-Entry Provisions for Global
Security..................................................... 44
SECTION 3.13. Special Transfer Provisions....................................... 46
SECTION 3.14. Maintenance of Office or Agency................................... 51
SECTION 3.15. Money for Securities Payments to Be
Held in Trust..................................................... 52
ARTICLE IV
Satisfaction and Discharge
SECTION 4.01. Satisfaction and Discharge of
Indenture.................................................... 53
SECTION 4.02. Application of Trust Money........................................ 54
SECTION 4.03. Defeasance and Discharge of Indenture............................. 55
SECTION 4.04 Defeasance of Certain Obligations................................. 57
ARTICLE V
Remedies
SECTION 5.01. Events of Default................................................. 58
SECTION 5.02. Acceleration of Maturity; Rescission
and Annulment................................................ 60
SECTION 5.03. Collection of Indebtedness and Suits
for Enforcement by Trustee................................... 61
SECTION 5.04. Trustee May File Proofs of Claim.................................. 62
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SECTION 5.05. Trustee May Enforce Claims Without
Possession of Securities..................................... 63
SECTION 5.06. Application of Money Collected.................................... 64
SECTION 5.07. Limitation on Suits............................................... 64
SECTION 5.08. Unconditional Right of Holders to
Receive Principal, Premium and
Interest..................................................... 65
SECTION 5.09. Restoration of Rights and Remedies................................ 65
SECTION 5.10. Rights and Remedies Cumulative.................................... 65
SECTION 5.11. Delay or Omission Not Waiver...................................... 66
SECTION 5.12. Control by Holders................................................ 66
SECTION 5.13. Waiver of Past Defaults........................................... 66
SECTION 5.14. Undertaking for Costs............................................. 67
SECTION 5.15. Waiver of Stay or Extension Laws.................................. 67
ARTICLE VI
The Trustee
SECTION 6.01. Certain Duties and Responsibilities............................... 68
SECTION 6.02. Notice of Default................................................. 68
SECTION 6.03. Certain Rights of Trustee......................................... 68
SECTION 6.04. Not Responsible for Recitals or
Issuance of Securities....................................... 70
SECTION 6.05. May Hold Securities............................................... 71
SECTION 6.06. Money Held in Trust............................................... 71
SECTION 6.07. Compensation and Reimbursement.................................... 71
SECTION 6.08. Disqualification; Conflicting
Interests.................................................... 72
SECTION 6.09. Corporate Trustee Required;
Eligibility.................................................. 72
SECTION 6.10. Resignation and Removal; Appointment
of Successor................................................. 73
SECTION 6.11. Acceptance of Appointment by
Successor.................................................... 75
SECTION 6.12. Merger, Conversion, Consolidation or
Succession to Business....................................... 75
SECTION 6.13. Preferential Collection of Claims
Against Company............................................... 76
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ARTICLE VII
Holders' Lists and Reports
by Trustee and Company
SECTION 7.01. Company to Furnish Trustee Names and
Addresses of Holders......................................... 76
SECTION 7.02. Preservation of Information;
Communication to Holders..................................... 77
SECTION 7.03. Reports by Trustee................................................ 77
SECTION 7.04. Reports by Company................................................ 77
ARTICLE VIII
Consolidation, Merger, Conveyance,
Transfer of Lease
SECTION 8.01. Company May Consolidate, Etc., Only
on Certain Terms............................................. 79
SECTION 8.02. Successor Substituted............................................. 80
ARTICLE IX
Supplemental Indentures
SECTION 9.01. Supplemental Indentures Without
Consent of Holders........................................... 80
SECTION 9.02. Supplemental Indentures with Consent
of Holders................................................... 81
SECTION 9.03. Execution of Supplemental Indentures.............................. 82
SECTION 9.04. Effect of Supplemental Indentures................................. 83
SECTION 9.05. Conformity with Trust Indenture Act 83
SECTION 9.06. Reference in Securities to Supplement
Indentures................................................... 83
SECTION 9.07. Notice of Supplemental Indentures................................. 83
SECTION 9.08. Waiver of Certain Covenants....................................... 83
SECTION 9.09. Payments for Consent.............................................. 84
ARTICLE TEN
Covenants
SECTION 10.01. Payment of Principal, Premium and
Interest..................................................... 84
SECTION 10.02. Restriction on Secured Debt....................................... 84
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SECTION 10.03. Restriction on Sale of Leaseback
Transactions................................................. 88
SECTION 10.04. Compliance Certificate............................................ 89
EXECUTION COPY
INDENTURE, dated as of March 1, 1997 between
FIRST BRANDS CORPORATION, a Delaware corporation
(herein called the "Company"), having its principal
office at 00 Xxxxxxx Xxxxxxx Xxxx, Xxxxxxx,
Xxxxxxxxxxx 00000-0000, and THE BANK OF NEW YORK, as
Trustee (herein called the "Trustee").
RECITALS OF THE COMPANY
The Company has duly authorized the execution and delivery of
this Indenture to provide for the creation of an issue of 7.25% Senior Notes due
2007 (the "Series A Securities") and 7.25% Senior Notes due 2007 (the "Series B
Securities" and together with the Series A Securities, the "Securities"), of
substantially the tenor and amount hereinafter set forth, and to provide
therefor the Company has duly authorized the execution and delivery of this
Indenture.
For and in consideration of the premises and the purchase of
the Securities by the Holders thereof, it is mutually covenanted and agreed, for
the equal and proportionate benefit of all Holders of the Securities as follows:
ARTICLE I
Definitions and Other Provisions of General Application
SECTION 1.01. Definitions. For all purposes of this Indenture,
except as otherwise expressly provided or unless the context otherwise requires:
(a) The terms defined in this Article have the meanings
assigned to them in this Article and include the plural as well as the singular.
(b) All other terms used herein which are defined in the Trust
Indenture Act or by Commission Rule under the Trust Indenture Act, either
directly or by reference therein, have the meanings assigned to them therein;
the following TIA terms used in this Indenture have the following meanings:
"indenture securities" means the Securities;
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"indenture security holder" means a Holder;
"indenture to be qualified" means this Indenture;
and
"indenture trustee" or "institutional trustee"
means the Trustee.
(c) Any gender used in this Indenture shall be deemed and
construed to include correlative words of the masculine, feminine or neuter
gender.
(d) All accounting terms not otherwise defined herein have the
meanings assigned to them in accordance with generally accepted accounting
principles, and, except as otherwise herein expressly provided, the term
"generally accepted accounting principles" with respect to any computation
required or permitted hereunder shall mean such accounting principles as are
generally accepted in the United States of America at the date of such
computation.
(e) All references in this instrument to designated
"Articles", "Sections" and other subdivisions are to the designated Articles,
Sections and other subdivisions of this instruments; and the words "herein",
"hereof" and "hereunder" and other words of similar import refer to this
Indenture as a whole and not to any particular Article, Section or other
subdivision.
(f) "or" is not exclusive.
(g) "including" means including without
limitation.
Certain terms, used principally in Article VI, are defined in
that Article.
"Act", when used with respect to any Holder, has
the meaning specified in Section 1.04.
"Affiliate" of any specified Person means any other Person
directly or indirectly controlling or controlled by or under direct or indirect
common control with such specified Person. For the purposes of this definition,
"control", when used with respect to any specified Person, means the power to
direct the management and policies of such Person, directly or indirectly,
whether through the ownership of voting securities, by contract or
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otherwise; and the terms "controlling" and "controlled" have meanings
correlative to the foregoing.
"Attributable Debt" in respect of any Sale and Leaseback
Transaction means, at the date of determination, the present value (discounted
at the rate of interest implicit in the terms of the lease) of the obligation of
the lessee for net rental payments during the remaining term of the lease
(including any period for which such lease has been extended or may, at the
option of the lessor, be extended). "Net rental payments" under any lease for
any period means the sum of the rental and other payments required to be paid in
such period by the lessee thereunder, excluding any amounts required to be paid
by such lessee (whether or not designated as rental or additional rental) on
account of maintenance and repairs, insurance, taxes, assessments, water rates
or similar charges required to be paid by such lessee thereunder or any amounts
required to be paid by such lessee thereunder contingent upon the amount of
sales, maintenance and repairs, insurance, taxes, assessments, water rates or
similar charges.
"Board of Directors" means either the board of directors of
the Company or any duly authorized committee appointed by that 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. Where any provision of this Indenture refers to action to be
taken pursuant to a Board Resolution such action may be taken by any committee,
officer or employee of the Company authorized to take such action by a Board
Resolution.
"Business Day", means each Monday, Tuesday, Wednesday,
Thursday and Friday which is not a day on which banking institutions generally
in New York City are authorized or obligated by law or executive order to close.
"Commission" means the Securities and Exchange Commission, as
from time to time constituted, created under the Securities Exchange Act or, if
at any time after the execution of this instrument such Commission is not
existing and performing the duties now assigned to it under the Trust Indenture
Act, then the body performing such duties at such time.
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"Company" means the Person named as the "Company" in the first
paragraph of this instrument until a successor corporation shall have become
such pursuant to the applicable provisions of this Indenture, and thereafter
"Company" shall mean such successor corporation.
"Company Request" or "Company Order" means a written request
or order signed in the name of the Company by its Chairman of the Board, its
President or a Vice President, and by its Treasurer, an Assistant Treasurer, its
Secretary or an Assistant Secretary and delivered to the Trustee.
"Consolidated Net Tangible Assets" means, at the date of
determination, the aggregate amount of assets (less applicable reserves and
other properly deductible items) after deducting therefrom (a) all current
liabilities (excluding any indebtedness for money borrowed having a maturity of
less than 12 months from the date of the then most recent consolidated balance
sheet of the Company publicly available but which by its terms is renewable or
extendable beyond 12 months from such date at the option of the borrower) and
(b) all goodwill, trade names, patents, unamortized debt discount and expense
and any other like intangibles, all as set forth on the then most recent
consolidated balance sheet of the Company publicly available and computed in
accordance with generally accepted accounting principles.
"Corporate Trust Office" means the office of the Trustee in
The City of New York, New York at which at any particular time its corporate
trust business shall be principally administered, which office at the date
hereof is located at 000 Xxxxxxx Xxxxxx, Xxxxx 00 Xxxx, Xxx Xxxx, Xxx Xxxx
00000; and such other office as the Trustee may designate from time to time.
"Corporation" includes corporations, associations, companies,
joint stock companies and business trusts.
"Debt" has the meaning specified in Section 10.02.
"Defaulted Interest" has the meaning specified in
Section 3.07.
"Depositary" means, with respect to the Securities of any
series issuable or issued in whole or in part in the form of one or more Global
Securities, The Depository Trust
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Company or another Person designated as Depositary by the Company, which must be
a clearing agency registered under the Exchange Act.
"Event of Default" has the meaning specified in Section 5.01.
"Exchange Act" means the Securities Exchange Act of 1934, as
amended.
"Exchange Offer" means any exchange pursuant to the
Registration Rights Agreement of Series A Securities for a like principal amount
of Series B Securities.
"Funded Debt" means Debt which by its terms matures at or is
extendible or renewable at the option of the obligor to a date more than 12
months after the date of the creation of such Debt.
"Global Security" has the meaning specified in Section 3.01.
"Holder" means a Person in whose name a Security is registered
in the Security Register.
"Indenture" means this instrument as originally executed or as
it may from time to time be supplemented or amended by one or more indentures
supplemental hereto entered into pursuant to the applicable provisions hereof.
"Initial Purchasers" means Bear, Xxxxxxx & Co. Inc., TD
Securities (USA) Inc., Credit Lyonnais Securities (USA) Inc. and First Union
Capital Markets Corp.
"Institutional Accredited Investor" means an institution that
is an "accredited investor" as that term is defined in Rule 501(a)(1), (2), (3)
or (7) under the Securities Act.
"interest", when used with respect to any Security, means the
amount of all interest accruing on such Security, including all additional
interest payable on the Securities pursuant to the Registration Rights
Agreement.
"interest payment date", when used with respect to any
Security, means the Stated Maturity of an installment of interest on such
Security.
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"Issue Date" means the original date of issuance of the
Securities.
"Lien" or "Liens" has the meaning specified in Section 10.02.
"Maturity", when used with respect to any Security, means the
date on which the principal of such Security or an installment of principal
becomes due and payable as therein or herein provided, whether at the Stated
Maturity or by declaration of acceleration, call for redemption or otherwise.
"Non-U.S. Person" means a person who is not a U.S. person, as
defined in Regulation S.
"Officers' Certificate" means a certificate signed by the
Chairman of the Board, the President, a Vice President or an Assistant Vice
President of the Company, and by the Treasurer, an Assistant Treasurer, the
Secretary or an Assistant Secretary of the Company, and delivered to the
Trustee.
"Offshore Global Security" has the meaning set forth in
Section 3.01.
"Offshore Physical Security" has the meaning set forth in
Section 3.01.
"Opinion of Counsel" means a written opinion of counsel, who
may (except as otherwise expressly provided in this Indenture) be an employee of
or counsel for the Company. Such counsel should be acceptable to the Trustee,
whose acceptance shall not be unreasonably withheld.
"Outstanding", when used with respect to Securities, means, as
of the date of determination, all Securities theretofore authenticated and
delivered under this Indenture, except:
(i) Securities theretofore canceled by the Trustee
or delivered to the Trustee for cancelation;
(ii) Securities for whose payment or redemption money in the
necessary amount has been theretofore deposited with the Trustee or any
Paying Agent (other than the Company) in trust or set aside and
segregated in trust by the Company (if the Company shall act as
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its own Paying Agent) for the Holders of such Securities; provided
that, if such Securities are to be redeemed, notice of such redemption
has been duly given pursuant to this Indenture or provision therefor
satisfactory to the Trustee has been made; and
(iii) Securities which have been paid pursuant to Section 3.06 or
in exchange for or in lieu of which other Securities have been
authenticated and delivered pursuant to this Indenture, other than any
such Securities in respect of which there shall have been presented to
the Trustee proof satisfactory to it that such Securities are held by a
bona fide purchaser in whose hands such Securities are valid
obligations of the Company;
provided, however, that in determining whether the Holders of the requisite
principal amount of the Outstanding Securities have given any request, demand,
authorization, direction, notice, consent or waiver hereunder or whether a
quorum is present at a meeting of Holders of Securities, Securities owned by the
Company or any other obligor upon the Securities or any Affiliate of the Company
or of such other obligor shall be disregarded and deemed not to be Outstanding,
except that, in determining whether the Trustee shall be protected in relying
upon any such request, demand, authorization, direction, notice, consent or
waiver, only Securities which the Trustee knows to be so owned shall be so
disregarded. Securities so owned which have been pledged in good faith may be
regarded as Outstanding if the pledgee establishes to the satisfaction of the
Trustee the pledgee's right so to act with respect to such Securities and that
the pledgee is not the Company or any other obligor upon the Securities or any
Affiliate of the Company or of such other obligor.
"Paying Agent" means any Person authorized by the Company to
pay the principal of (and premium, if any) and/or interest on any Securities on
behalf of the Company.
"Person" means any individual, Corporation, partnership, joint
venture, association, joint stock company, trust, unincorporated organization or
government or any agency or political subdivision thereof.
"Physical Security", has the meaning set forth in
Section 3.01.
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"Predecessor Security" of any particular Security means every
previous Security evidencing all or a portion of the same debt as that evidenced
by such particular Security, and, for the purposes of this definition, any
Security authenticated and delivered under Section 3.06 in exchange for or in
lieu of a mutilated, destroyed, lost or stolen Security shall be deemed to
evidence the same debt as the mutilated, destroyed, lost or stolen Security.
"Principal Property" means any plant, office facility,
warehouse, distribution center or equipment located within the United States of
America (other than its territories or possessions) and owned by the Company or
any Subsidiary, the gross book value (without deduction of any depreciation
reserves) of which on the date as of which the determination is being made
exceeds 1% of Consolidated Net Tangible Assets of the Company, except any such
property which the Board of Directors, in its good faith opinion, determines is
not of material importance to the business conducted by the Company and its
Subsidiaries, taken as a whole, as evidenced by a Board Resolution.
"Private Exchange Securities" has the meaning specified in the
Registration Rights Agreement.
"Private Placement Legend" means the legend initially set
forth on the Securities in the form set forth in Section 2.02(a).
"Purchase Agreement" means the Purchase Agreement dated March
5, 1997 among the Company and the Initial Purchasers.
"Qualified Institutional Buyer" or "QIB" shall have the
meaning specified in Rule 144A under the Securities Act.
"Registration Rights Agreement" means the Registration Rights
Agreement dated as of March 5, 1997 among the Company and the Initial
Purchasers, as the same may be amended or supplemented or otherwise modified
from time to time in accordance with the terms thereof.
"Regulation S" means Regulation S under the Securities Act.
9
"Responsible Officer", when used with respect to the Trustee,
means any officer of the Trustee assigned by it to administer its corporate
trust matters.
"Restricted Subsidiary" means any Subsidiary of the Company
which owns or leases Principal Property.
"Rule 144A" means Rule 144A under the Securities Act.
"Securities" has the meaning stated in the first recital of
this Indenture that are authenticated and delivered under this Indenture. For
all purposes of this Indenture, the term "Securities" shall include any Series B
Securities to be issued and exchanged for any Series A Securities pursuant to
the Registration Rights Agreement and for purposes of this Indenture, all Series
A Securities and Series B Securities shall vote together as one series of
Securities under this Indenture.
"Securities Act" means the Securities Act of 1933.
"Security Register" and "Security Registrar" have the
respective meanings specified in Section 3.05.
"Stated Maturity", when used with respect to any Security or
any installment of principal thereof or interest thereon, means the date
specified in such Security as the fixed date on which the principal of such
Security or such installment of principal or interest is due and payable.
"Subsidiary" means any Corporation or other business entity of
which securities (excluding securities entitled to vote for directors only by
reason of the happening of a contingency) entitled to elect at least a majority
of the Corporation's directors shall at the time be owned, directly or
indirectly, by the Company, or one or more Subsidiaries, or by the Company and
one or more Subsidiaries.
"Trustee" means the Person named as the "Trustee" in the first
paragraph of this instrument until a successor Trustee shall have become such
pursuant to the applicable provisions of this Indenture, and thereafter
"Trustee" shall mean or include such successor Person.
"Trust Indenture Act" or "TIA" means the Trust Indenture Act
of 1939 as in force at the date as of which
10
this instrument was executed, except as provided in Section 9.05.
"U.S. Global Security" has the meaning set forth in Section
3.01.
"U.S. Government Obligations" means direct obligations of the
United States of America, backed by its full faith and credit.
"U.S. Physical Security" has the meaning set forth in Section
3.01.
"Vice President", when used with respect to the Company, means
any vice president, whether or not designated by a number or a word or words
added before or after the title "vice president".
SECTION 1.02. Compliance Certificates and Opinions. Upon any
application or request by the Company to the Trustee to take any action under
any provision of this Indenture, the Company shall furnish to the Trustee an
Officers' Certificate stating that all conditions precedent, if any, provided
for in this Indenture relating to the proposed action have been complied with
and an Opinion of Counsel stating that in the opinion of such counsel all such
conditions precedent, if any, have been complied with, except that in the case
of any such application or request as to which the furnishing of such documents
is specifically required by any provision of this Indenture relating to such
particular application or request, no additional certificate or opinion need be
furnished.
Every certificate or opinion with respect to compliance with a
condition or covenant provided for in this Indenture shall include:
(a) a statement that each individual signing such certificate
or opinion has read such covenant or condition and the definitions
herein relating thereto;
(b) a brief statement as to the nature and scope of the
examination or investigation upon the statements or opinions contained
in such certificate or opinion are based;
(c) a statement that, in the opinion of each such
individual, he has made such examination or
11
investigation as is necessary to enable him to express
an informed opinion whether such covenant or condition
has been complied with; and
(d) a statement whether, in the opinion of each such
individual, such condition or covenant has been complied with.
SECTION 1.03. Form of Documents Delivered to Trustee. In any
case where several matters are required to be certified by, or covered by an
opinion of, any specified Person, it is not necessary that all such matters be
certified by, or covered by the opinion of, only one such Person, or that they
be so certified or covered by only one document, but one such Person may certify
or give an opinion with respect to some matters and one or more other such
Persons as to other matters, and any such Person may certify or give an opinion
as to such matters in one or several documents.
Any certificate or opinion of any officer of the Company may
be based, insofar as it relates to legal matters, upon a certificate or opinion
of, or representations by, counsel, unless such officer knows, or in the
exercise of reasonable care should know, that the certificate or opinion or
representations with respect to the matters upon which such officer's
certificate or opinion is based are erroneous. Any such certificate or Opinion
of Counsel may be based, insofar as it relates to factual matters, upon a
certificate or opinion of, or representations by, an officer or officers of the
Company stating that the information with respect to such factual matters is in
the possession of the Company, unless such counsel knows, or in the exercise of
reasonable care should know, that the certificate or opinion or representations
with respect to such matters are erroneous.
Where any Person is required to make, give or execute two or
more applications, requests, consents, certificates, statements, opinions or
other instruments under this Indenture, they may, but need not, be consolidated
and form one instrument.
SECTION 1.04. Acts of Holders. (a) Any request, demand,
authorization, direction, notice, consent, waiver or other action provided by
this Indenture to be given or taken by Holders may be embodied in and evidenced
by one or more instruments of substantially similar tenor signed by such
12
Holders in person or by an agent duly appointed in writing, and, except as
herein otherwise expressly provided, such action shall become effective when
such instrument or instruments are delivered to the Trustee and, where it is
hereby expressly required, to the Company. Such instrument or instruments (and
the action embodied therein and evidenced thereby) are herein sometimes referred
to as the "Act" of the Holders signing such instrument or instruments. Proof of
execution of any such instrument or of a writing appointing any such agent shall
be sufficient for any purpose of this Indenture and (subject to Section 6.01)
conclusive in favor of the Trustee and the Company, if made in the manner
provided in this Section.
(b) The fact and date of the execution by any Person of any
such instrument or writing may be proved by the affidavit of a witness of such
execution or by a certificate of a notary public or other officer authorized by
law to take acknowledgments of deeds, certifying that the individual signing
such instrument or writing acknowledged to him the execution thereof. Where such
execution is by a signer acting in a capacity other than such signer's
individual capacity, such certificate or affidavit shall also constitute
sufficient proof of such signer's authority. The fact and date of the execution
of any such instrument or writing, or the authority of the Person executing the
same, may also be proved in any other manner which the Trustee deems sufficient.
(c) The ownership of Securities shall be proved by the
Security Register.
(d) Any request, demand, authorization, direction, notice,
consent, waiver or other Act of the Holder of any Security shall bind every
future Holder of the same Security and the Holder of every Security issued upon
the registration of transfer thereof or in exchange therefor or in lieu thereof
in respect of anything done, omitted or suffered to be done by the Trustee or
the Company in reliance thereon, whether or not notation of such action is made
upon such Security.
SECTION 1.05. Notices, Etc., to Trustee and Company. Any
request, demand, authorization, direction, notice, consent, waiver or Act of
Holders or other document provided or permitted by this Indenture to be made
upon, given or furnished to, or filed with:
13
(a) the Trustee by any Holder or by the Company shall be
sufficient for every purpose hereunder if made, given, furnished or filed in
writing to or with a Responsible Officer of the Trustee at its Corporate Trust
Office, Attention: Corporate Trust Administration; or
(b) the Company by the Trustee or by any Holder shall be
sufficient for every purpose hereunder (unless otherwise herein expressly
provided) if in writing and mailed, first-class postage prepaid, to the Company
addressed to it at the address of its principal office specified in the first
paragraph of this instrument (Attention: [ ]) or at any other address
previously furnished in writing to the Trustee by the Company.
SECTION 1.06. Notices to Holders; Waiver. Where this
Indenture provides for notice to Holders of any event, such notice shall be
sufficiently given (unless otherwise herein expressly provided) if in writing
and mailed, first-class postage prepaid, to each Holder affected by such
event, at such Holder's address as it appears in the Security Register, not
later than the latest date, and not earlier than the earliest date, prescribed
for the giving of such notice. In any case where notice to Holders is given
my mail, neither the failure to mail such notice, or any defect in any notice so
mailed, to any particular Holder shall affect the sufficiency of such notice
with respect to other Holders. Where this Indenture provides for notice in
any manner, such notice may be waived in writing by the Person entitled to
receive such notice, either before or after the event, and such waiver shall be
the equivalent of such notice. Waivers of notice by Holders shall be filed
with the Trustee, but such filing shall not be a condition precedent to the
validity of any action taken in reliance upon such waiver.
In case by reason of the suspension of regular mail service or
by reason of any other cause it shall be impracticable to give such notice by
mail, then such notification as shall be made by or with the approval of the
Trustee shall constitute a sufficient notification for every purpose hereunder.
SECTION 1.07. Compliance with Trust Indenture Act. Upon the
issuance of the Series B Securities, if any, or the effectiveness of the Shelf
Registration Statement (as defined in Registration Rights Agreement), this
Indenture
14
will be subject to the provisions of the Trust Indenture Act of 1939 that are
required to be part of this Indenture and shall, to the extent applicable, be
governed by such provisions.
SECTION 1.08. Effect of Headings and Table of Contents. The
Article and Section headings herein and the Table of Contents are for
convenience only and shall not affect the construction hereof.
SECTION 1.09. Successors and Assigns. All covenants and
agreements in this Indenture by the Company or the Trustee shall bind its
successors and assigns, whether so expressed or not.
SECTION 1.10. Separability Clause. In case any provision in
this Indenture or in the Securities shall be invalid, illegal or unenforceable,
the validity, legality and enforceability of the remaining provisions shall not
in any way be affected or impaired thereby.
SECTION 1.11. Benefits of Indenture. Nothing in this Indenture
or in the Securities, express or implied, shall give to any Person, other than
the parties hereto, any Paying Agent, any Securities Registrar, and their
successors hereunder and the Holders, any benefit or any legal or equitable
right, remedy or claim under this Indenture.
SECTION 1.12. Governing Law. This Indenture and the Securities
shall be governed by and construed in accordance with the laws of the State of
New York, without giving effect to the conflict of law provisions thereof.
SECTION 1.13. Legal Holidays. Except as may be otherwise
specified with respect to any particular Securities, in any case where any
interest payment date or Stated Maturity of any Security shall not be a Business
Day, then (notwithstanding any other provision of this Indenture or of the
Securities) payment of interest or principal (and premium, if any) need not be
made on such Date, but may be made on the next succeeding Business Day with the
same force and effect as if made on the interest payment date or at the Stated
Maturity, provided that no interest shall accrue for the period from and after
such interest payment date or Stated Maturity, as the case may be.
15
ARTICLE II
Security Forms
SECTION 2.01. Forms Generally. The Securities shall be in
substantially the forms set forth, or referenced, in this Article, in each case
with such appropriate insertions, omissions, substitutions and other variations
as are required or permitted by this Indenture, and may have such letters,
numbers or other marks of identification and such legends or endorsements placed
thereon as may be required to comply with the rules of any securities exchange
or as may, consistently herewith, be determined by the officers executing such
Securities, as evidenced by their execution of the Securities.
The Trustee's certificates of authentication shall be in
substantially the form set forth in this Article with such appropriate
insertions, omissions, substitutions and other variations as are required or
permitted by this Indenture.
The definitive Securities may be printed, lithographed or
engraved or produced by any combination of these methods on steel engraved
borders or may be produced in any other manner permitted by the rules of any
securities exchange on which the Securities may be listed, all as determined by
the officers executing such Securities, as evidenced by their execution of such
Securities.
SECTION 2.02. Form of Face of Security. (a) The form of the
face of the Series A Securities shall be substantially as follows:
THE SECURITY (OR ITS PREDECESSOR) EVIDENCED HEREBY WAS
ORIGINALLY ISSUED IN A TRANSACTION EXEMPT FROM REGISTRATION UNDER
XXXXXXX 0 XX XXX XXXXXX XXXXXX SECURITIES ACT OF 1933 (THE "SECURITIES
ACT"), AND THE SECURITY EVIDENCED HEREBY MAY NOT BE OFFERED, SOLD OR
OTHERWISE TRANSFERRED IN THE ABSENCE OF SUCH REGISTRATION OR AN
APPLICABLE EXEMPTION THEREFROM. EACH PURCHASER OF THE SECURITY
EVIDENCED HEREBY IS HEREBY NOTIFIED THAT THE SELLER MAY BE RELYING ON
THE EXEMPTION FROM THE PROVISIONS OF SECTION 5 OF THE SECURITIES ACT
PROVIDED BY RULE 144A THEREUNDER. THE HOLDER OF THE SECURITY EVIDENCED
HEREBY AGREES FOR THE BENEFIT OF THE COMPANY THAT (A) SUCH SECURITY MAY
BE RESOLD, PLEDGED OR OTHERWISE TRANSFERRED, ONLY (1)(A)
16
TO A PERSON WHOM THE SELLER REASONABLY BELIEVES IS A QUALIFIED
INSTITUTIONAL BUYER (AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT)
IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE 144A UNDER THE
SECURITIES ACT, (B) IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE
144 UNDER THE SECURITIES ACT, (C) OUTSIDE THE UNITED STATES TO A
FOREIGN PERSON IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE 904
UNDER THE SECURITIES ACT OR (D) IN ACCORDANCE WITH ANOTHER EXEMPTION
FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT (AND BASED
UPON AN OPINION OF COUNSEL IF THE COMPANY SO REQUESTS), (2) TO THE
COMPANY OR (3) PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT AND, IN
EACH CASE, IN ACCORDANCE WITH ANY APPLICABLE SECURITIES LAWS OF ANY
STATE OF THE UNITED STATES OR ANY OTHER APPLICABLE JURISDICTION AND (B)
THE HOLDER WILL, AND EACH SUBSEQUENT HOLDER IS REQUIRED TO, NOTIFY ANY
PURCHASER FROM IT OF THE SECURITY EVIDENCED HEREBY OF THE RESALE
RESTRICTIONS SET FORTH IN (A) ABOVE.
---------------------------
Each Holder hereof, by its acceptance hereof, will be deemed
to have agreed to be bound by the provisions of the Registration Rights
Agreement.
---------------------------
FIRST BRANDS CORPORATION
7.25% SENIOR NOTES DUE 2007
SERIES A
CUSIP No. ___________
No. __________ $__________
FIRST BRANDS CORPORATION, a Delaware corporation (the
"Company", which term includes any successor corporation under the Indenture
hereinafter referred to), for value received, hereby promises to pay to
___________ or registered assigns, the principal sum of _____________ United
States dollars on March 1, 2007, at the office or agency of the Company referred
to below, and to pay interest thereon on March 1 and September 1, of each year,
commencing on September 1, 1997, accruing from March 1, 1997 or from the most
recent date to which interest has been paid or duly provided for, at the rate of
7.25% per annum, until the principal hereof is paid or duly provided for.
Interest shall be computed on the basis of a 360-day year of twelve 30-day
months.
17
The interest so payable, and punctually paid or duly provided
for, on any interest payment date will, as provided in the Indenture referred to
on the reverse hereof, be paid to the person in whose name this Security (or one
or more Predecessor Securities) is registered at the close of business on the
February 15 or August 15, whether or not a Business Day, as the case may be,
next preceding such interest payment date. Any such interest not so punctually
paid, or duly provided for, and interest on such defaulted interest at the then
applicable interest rate borne by the Securities, to the extent lawful, shall
forthwith cease to be payable to the Holder on such record date, and may be paid
to the person in whose name this Security (or one or more Predecessor
Securities) is registered at the close of business on a Special Record Date for
the payment of such defaulted interest to be fixed by the Trustee, notice of
which shall be given to Holders of Securities not less than 10 days prior to
such Special Record Date, or may be paid at any time in any other lawful manner
not inconsistent with the requirements of the Depositary or any clearing agency
through which clearing of trades of the Securities regularly takes place or any
securities exchange on which the Securities may be listed, and upon such notice
as may be required by the Depositary or any such clearing agency or exchange,
all as more fully provided in such Indenture. In addition, the Company may be
obligated to pay additional interest pursuant to certain provisions of the
Registration Rights Agreement.
If this Security is a Global Security, all payments in respect
of this Security will be made to the Depositary or its nominee in immediately
available funds in accordance with customary procedures established from time to
time by the Depositary. If this Security is a Global Security and a Restricted
Security, reference is made to the restriction on ownership of beneficial
interests herein contained in the Indenture. If this Security is not a Global
Security, payment of the principal of, premium, if any, and interest on this
Security will be made at the office or agency of the Company maintained for that
purpose in The City of New York, or at such other office or agency of the
Company as may be maintained for such purpose, in such coin or currency of the
United States of America as at the time of payment is legal tender for payment
of public and private debts; provided, however, that payment of interest may be
made at the option of the Company by check mailed to the address of the person
entitled thereto as such address shall appear on the Security Register.
18
Reference is hereby made to the further provisions of this
Security set forth on the reverse hereof.
Unless the certificate of authentication hereon has been duly
executed by the Trustee referred to on the reverse hereof by manual signature,
this Security shall not be entitled to any benefit under the Indenture, or be
valid or obligatory for any purpose.
IN WITNESS WHEREOF, First Brands Corporation has caused this
instrument to be duly executed.
Dated:
FIRST BRANDS CORPORATION
By:
------------------
Name:
Title:
By:
------------------
Name:
Title:
(b) The form of the face of the Series B
Securities shall be substantially as follows:
FIRST BRANDS CORPORATION
---------------------------
7.25% SENIOR NOTES DUE 2007
SERIES B
CUSIP No. ___________
No. __________ $__________
FIRST BRANDS CORPORATION, a Delaware corporation (the
"Company", which term includes any successor corporation under the Indenture
hereinafter referred to), for value received, hereby promises to pay to
______________ or registered assigns, the principal sum of ________________
United States Dollars on March 1, 2007, at the office or agency of the Company
referred to below, and to pay interest thereon on March 1 and September 1, of
each year, commencing on September 1, 1997, accruing from March 1, 1997 or from
19
the most recent date to which interest has been paid or duly provided for, at
the rate of 7.25% per annum, until the principal hereof is paid or duly provided
for. Interest shall be computed on the basis of a 360-day year of twelve 30-day
months.
The interest so payable, and punctually paid or duly provided
for, on any interest payment date will, as provided in the Indenture referred to
on the reverse hereof, be paid to the person in whose name this Security (or one
or more Predecessor Securities) is registered at the close of business on
February 15 and August 15, whether or not a Business Day, as the case may be,
next preceding such interest payment date. Any such interest not so punctually
paid, or duly provided for, and interest on such defaulted interest at the then
applicable interest rate borne by the Securities, to the extent lawful, shall
forthwith cease to be payable to the Holder on such record date, and may be paid
to the person in whose name this Security (or one or more Predecessor
Securities) is registered at the close of business on a Special Record Date for
the payment of such defaulted interest to be fixed by the Trustee, notice of
which shall be given to Holders of Securities not less than 10 days prior to
such Special Record Date, or may be paid at any time in any other lawful manner
not inconsistent with the requirements of the Depositary or any clearing agency
through which clearing of trades of the Securities regularly takes place or any
securities exchange on which the Securities may be listed, and upon such notice
as may be required by the Depositary or any such clearing agency or exchange,
all as more fully provided in such Indenture.
If this Security is a Global Security, all payments in respect
of this Security will be made to the Depositary or its nominee in immediately
available funds in accordance with customary procedures established from time to
time by the Depositary. If this Security is not a Global Security, payment of
the principal of, premium, if any, and interest on this Security will be made at
the office or agency of the Company maintained for that purpose in the Borough
of Manhattan in The City of New York, or at such other office or agency of the
Company as may be maintained for such purpose, in such coin or currency of the
United States of America as at the time of payment is legal tender for payment
of public and private debts provided, however, that payment of interest may be
made at the option of the Company by check mailed to the address of the person
20
entitled thereto as such address shall appear on the Security Register.
Reference is hereby made to the further provisions of this
Security set forth on the reverse hereof.
Unless the certificate of authentication hereon has been duly
executed by the Trustee referred to on the reverse hereof by manual signature,
this Security shall not be entitled to any benefit under the Indenture, or be
valid or obligatory for any purpose.
IN WITNESS WHEREOF, First Brands Corporation has caused this
instrument to be duly executed.
Dated:
FIRST BRANDS CORPORATION
By:
------------------
Name:
Title:
By:
------------------
Name:
Title:
SECTION 2.03. Form of Reverse of Security.
(a) The form of the reverse of the Series A Securities shall be substantially
as follows:
This Security is one of a duly authorized issue of Securities
of the Company designated as its 7.25% Senior Notes due 2007 (the "Series A
Securities"), limited (except as otherwise provided in the Indenture referred to
below) in aggregate principal amount to $150,000,000, which may be issued under
an indenture (herein called the "Indenture") dated as of March 1, 1997 between
the Company and The Bank of New York, as trustee (herein called the "Trustee,"
which term includes any successor Trustee under the Indenture), to which
Indenture and all indentures supplemental thereto reference is hereby made for a
statement of the respective rights, limitations of rights, duties, obligations
and immunities thereunder of the Company, the Trustee and the
21
Holders of the Securities, and of the terms upon which the Securities are, and
are to be, authenticated and delivered.
All capitalized terms used in this Series A Security which are
defined in the Indenture and not otherwise defined herein shall have the
meanings assigned to them in the Indenture.
No reference herein to the Indenture and no provisions of this
Series A Security or of the Indenture shall alter or impair the obligation of
the Company, which is absolute and unconditional, to pay the principal of,
premium, if any, and interest on this Security at the times, place, and rate,
and in the coin or currency, herein prescribed.
Pursuant to the Registration Rights Agreement, the Company
will be obligated to consummate an exchange offer pursuant to which the Holder
of this Security shall have the right to exchange this Security for 7.25% Senior
Notes due 2007, Series B, of the Company (the "Series B Securities"), which have
been registered (or, with respect to certain Series B Securities, which will be
entitled to such registration, as set forth in the Registration Rights
Agreement) under the Securities Act, in like principal amount and having
identical terms as the Series A Securities. The Holders of Series A Securities
shall be entitled to receive certain additional interest payments in the event
such exchange offer is not consummated and upon certain other conditions, all
pursuant to and in accordance with the terms of the Registration Rights
Agreement. The Series A Securities and the Series B Securities are together
referred to herein as the "Securities".
The Indenture contains provisions (which provisions apply to
this Series A Security) for defeasance at any time of (a) the entire
indebtedness of the Company on this Series A Security and (b) certain
restrictive covenants and related Events of Default, in each case upon
compliance by the Company with certain conditions set forth therein.
The Company and the Trustee may, without the consent of the
Holders of any Outstanding Securities, amend, waive or supplement the Indenture
or the Securities for certain specified purposes, including curing ambiguities,
defects or inconsistencies, maintaining the qualification of the Indenture under
the Trust Indenture Act of 1939, as amended, and making any change that does not
adversely
22
affect the rights of any Holder. Other amendments and modifications of the
Indenture or the Securities may be made by the Company and the Trustee with the
consent of the Holders of not less than a majority of the aggregate principal
amount of the Outstanding Securities, subject to certain exceptions requiring
the consent of the Holders of the particular Securities to be affected. Any such
consent or waiver by or on behalf of the Holder of this Series A Security shall
be conclusive and binding upon such Holder and upon all future Holders of this
Series A Security and of any Series A Security issued upon the registration of
transfer hereof or in exchange herefor or in lieu hereof whether or not notation
of such consent or waiver is made upon this Series A Security.
All Series A Securities and Series B Securities shall vote
together as one series of Securities under the Indenture.
The Series A Securities are issuable only in registered form
without coupons in denominations of $100,000 and any integral multiple of $1,000
in excess thereof. As provided in the Indenture and subject to certain
limitations therein set forth, the Series A Securities are exchangeable for a
like aggregate principal amount of Series A Securities of a different authorized
denomination, as requested by the Holder surrendering the same.
If this Series A Security is in certificated form, then as
provided in the Indenture and subject to certain limitations therein set forth,
the transfer of this Series A Security is registrable on the Security Register
of the company, upon surrender of this Series A Security for registration of
transfer at the office or agency of the Company maintained for such purpose in
The City of New York or at such other office or agency of the Company as may be
maintained for such purpose, duly endorsed by, or accompanied by a written
instrument of transfer in form satisfactory to the Company and the Security
Registrar duly executed by, the Holder hereof or his attorney duly authorized in
writing, and thereupon one or more new Series A Securities, of authorized
denominations and for the same aggregate principal amount, will be issued to the
designated transferee or transferees.
If this Series A Security is a Restricted Security in
certificated form, then as provided in the Indenture and subject to certain
limitations therein set forth, the
23
Holder, provided it is a Qualified Institutional Buyer, may exchange this Series
A Security for a book-entry security by instructing the Trustee to arrange for
such Series A Security to be represented by a beneficial interest in a Global
Security in accordance with the customary procedures of the Depositary.
If this Series A Security is a Global Security, it is
exchangeable for Series A Securities in certificated form if (i) the Depositary
notifies the Company that it is unwilling or unable to continue as Depositary or
the Depositary ceases to be a "clearing agency" registered under the Exchange
Act and, in each case, a successor Depositary is not appointed by the Company
within 90 days of such notice or such cessation, as the case may be, (ii) the
Company executes and delivers to the Trustee a Company Order that such Global
Security shall be exchangeable or (iii) there shall have occurred and be
continuing an Event of Default with respect to any Securities represented by the
Global Security. Upon the occurrence in respect of any Global Security of any
one or more of the conditions specified in clauses (i), (ii) and (iii) of the
preceding sentence such Global Security may be exchanged for Securities not
bearing the legend specified in Section 2.05 and registered in the names of such
Persons as may be specified by the Depositary (including Persons other than the
Depositary). In addition, in accordance with the provisions of the Indenture and
subject to certain limitations therein set forth, a beneficial owner of a
beneficial interest in a Global Security may request a Series A Security in
certificated form, in exchange in whole or in part, as the case may be, for such
beneficial owner's interest in the Global Security. In any such instance, an
owner of a beneficial interest in a Global Security will be entitled to physical
delivery in certificated form of Series A Securities in authorized denominations
equal in principal amount to such beneficial interest and to have such Series A
Securities registered in its name.
No service charge shall be made for any registration of
transfer or exchange or redemption of Series A Securities, but the Company may
require payment of a sum sufficient to cover any tax or other governmental
charge payable in connection therewith.
At any time when the Company is not subject to Section 12 or
15(d) of the Securities Exchange Act of 1934, upon the request of a Holder of a
Series A Security, the
24
Company will promptly furnish or cause to be furnished such information as is
specified pursuant to Rule 144A(d)(4) under the Securities Act (or any successor
provision thereto) to such Holder or to a prospective purchase of such Series A
Security designated by such Holder, as the case may be, in order to permit
compliance by such Holder with Rule 144A under the Securities Act.
Prior to and at the time of due presentment of this Series A
Security for registration of transfer, the Company, the Trustee and any agent of
the Company or the Trustee may treat the person in whose name this Series A
Security is registered as the owner hereof for all purposes, whether or not this
Series A Security shall be overdue, and neither the Company, the trustee nor any
agent shall be affected by notice to the contrary.
This Security shall be governed by and construed in accordance
with the laws of the State of New York, without giving effect to the conflict of
law provisions thereof.
ASSIGNMENT FORM
If you the holder want to assign this Security, fill in the form below and have
your signature guaranteed:
I or we assign and transfer this Security to
________________________________________________________________________________
(Insert assignee's social security or tax ID number)____________________________
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
(Print or type assignee's name, address and zip code) and
irrevocably appoint_____________________________________________________________
________________________________________________________________________________
agent to transfer this Security on the books of the Company. The agent may
substitute another to act for such agent.
In connection with any transfer of this Security occurring
prior to the date which is the earlier of (i) the date of the declaration by the
Commission of the effectiveness of a registration statement under the
25
Securities Act of 1933 (the "Securities Act"), covering resales of this Security
(which effectiveness shall not have been suspended or terminated at the date of
the transfer) and (ii) the later of March 10, 1999, or the date two years (or
such shorter period of time as permitted by Rule 144(k) under the Securities Act
or any successor provision thereunder) after the later of the date of issuance
appearing on the face of this Security and the last date on which the Company or
an affiliate of the Company was the owner of this Security (or any Predecessor
Security), the undersigned confirms that it has not utilized any general
solicitation or general advertising in connection with the transfer and that:
[Check one]
[ ] (a) this Security is being transferred in compliance with
the exemption from registration under the Securities Act
provided by Rule 144A thereunder.
or
[ ] (b) this Security is being transferred other than in
accordance with (a) above and documents, including a
transferee certificate substantially in the form attached
hereto, are being furnished which comply with the conditions
of transfer set forth in this Security and the Indenture.
If none of the foregoing boxes is checked and, in the case of (b) above, if the
appropriate document is not attached or otherwise furnished to the Trustee, the
Trustee or Registrar shall not be obligated to register this Security in the
name of any person other than the Holder hereof unless and until the conditions
to any such transfer or registration set forth herein and in Section 3.13 of the
Indenture shall have been satisfied.
________________________________________________________________________________
26
Date:________________________________ Your signature:_____________________
(Sign exactly as your
name appears on the other
side of this Security)
By:__________________
Notice: To be
executed by an
executive officer
Signature Guarantee: ________________
TO BE COMPLETED BY PURCHASER IF (a) 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 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 (including the
information specified in Rule 144A(d)(4)) 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:__________________________
By:_______________
Notice: To be
executed by an
executive officer
[The Transferee Certificates (Exhibits A and B to the
Indenture) will be attached to the Series A Security].
(b) The form of the reverse of the Series B Securities shall
be substantially as follows:
This Security is one of a duly authorized issue of Securities
of the Company designated as its 7.25% Senior Notes due 2007, Series B (the
"Series B Securities"), limited (except as otherwise provided in the Indenture
27
referred to below) in aggregate principal amount to $150,000,000 which may be
issued under an indenture (herein called the "Indenture") dated as of March 1,
1997, between the Company and The Bank of New York, as trustee (herein called
the "Trustee," which term includes any successor Trustee under the Indenture),
to which Indenture and all indentures supplemental thereto reference is hereby
made for a statement of the respective rights, limitation of rights, duties,
obligations and immunities thereunder of the Company, the Trustee and the
Holders of the Securities, and of the terms upon which the Securities are, and
are to be, authenticated and delivered.
All capitalized terms used in this Series B Security which are
defined in the Indenture and not otherwise defined herein shall have the
meanings assigned to them in the Indenture.
No reference herein to the Indenture and no provision of this
Series B Security or of the Indenture shall alter or impair the obligation of
the Company, which is absolute and unconditional, to pay the principal of,
premium, if any, and interest on this Security at the time, place, and rate, and
in the coin or currency, herein prescribed.
The Series B Securities were issued pursuant to an exchange
offer pursuant to which 7.25% Senior Notes due 2007 of the Company (the "Series
A Securities"), in like principal amount and having substantially identical
terms as the Series B Securities, were exchanged for the Series B Securities.
The Series A Securities and the Series B Securities are together referred to
herein as the "Securities".
The Indenture contains provisions (which provisions apply to
this Series B Security) for defeasance at any time of (a) the entire
indebtedness of the Company on this Series B Security and (b) certain
restrictive covenants and related Events of Default, in each case upon
compliance by the Company with certain conditions set forth therein.
The Company and the Trustee may, without the consent of the
Holders of any Outstanding Securities, amend, waive or supplement the Indenture
or the Securities for certain specified purposes, including, among other things,
curing ambiguities, defects or inconsistencies, maintaining the qualification of
the Indenture under the Trust Indenture
28
Act of 1939, as amended, and making any change that does not adversely affect
the rights of any Holder. Other amendments and modifications of the Indenture or
the Securities may be made by the Company and the Trustee with the consent of
the Holders of not less than a majority of the aggregate principal amount of the
Outstanding Securities, subject to certain exceptions requiring the consent of
the Holders of the particular Securities to be affected. Any such consent or
waiver by or on behalf of the Holder of this Series B Security shall be
conclusive and binding upon such Holder and upon all future Holders of this
Security and of any Series B Security issued upon the registration of transfer
hereof or in exchange herefor or in lieu hereof whether or not notation of such
consent or waiver is made upon this Series B Security.
All Series A Securities and Series B Securities shall vote
together as one series of Securities under the Indenture.
The Series B Securities are issuable only in registered form
without coupons in denominations of $1,000 and any amount in excess thereof
which is an integral multiple of $1,000. As provided in the Indenture and
subject to certain limitations therein set forth, the Series B Securities are
exchangeable for a like aggregate principal amount of Series B Securities of a
different authorized denomination, as requested by the Holder surrendering the
same.
If this Series B Security is in certificated form, then as
provided in the Indenture and subject to certain limitations therein set forth,
the transfer of this Series B Security is registrable on the Security Register
of the Company, upon surrender of this Series B Security for registration of
transfer at the office or agency of the Company maintained for such purpose in
The City of New York or at such other office or agency of the Company as may be
maintained for such purpose, duly endorsed by, or accompanied by a written
instrument of transfer in form satisfactory to the Company and the Security
Registrar duly executed by, the Holder hereof of his attorney duly authorized in
writing, and thereupon one or more new Series B Securities, of authorized
denominations and for the same aggregate principal amount, will be issued to the
designated transferee or transferees.
29
If this Series B Security is a Global Security, it is
exchangeable for Series B Securities in certificated form if (i) the Depositary
notifies the Company that it is unwilling or unable to continue as Depositary or
the Depositary ceases to be a "clearing agency" registered under the Exchange
Act and, in each case, a successor Depositary is not appointed by the Company
within 90 days of such notice or such cessation, as the case may be, (ii) the
Company executes and delivers to the Trustee a Company Order that such Global
Security shall be exchangeable or (iii) there shall have occurred and be
continuing an Event of Default with respect to any Securities represented by the
Global Security. Upon the occurrence in respect of any Global Security of any
one or more of the conditions specified in clauses (i), (ii) and (iii) of the
preceding sentence such Global Security may be exchanged for Securities not
bearing the legend specified in Section 2.05 and registered in the names of such
Persons as may be specified by the Depositary (including Persons other than the
Depositary). In addition, in accordance with the provisions of the Indenture and
subject to certain limitations therein set forth, a beneficial owner of a
beneficial interest in a Global Security may request a Series B Security in
certificated form, in exchange in whole or in part, as the case may be, for such
beneficial owner's interest in the Global Security. In any such instance, an
owner of a beneficial interest in a Global Security will be entitled to physical
delivery in certificated form of Series B Securities in authorized denominations
equal in principal amount of such beneficial interest and to have such Series B
Securities registered in its name.
No service charge shall be made for any registration of
transfer or exchange or redemption of Series B Securities, but the Company may
require payment of a sum sufficient to cover any tax or other governmental
charge payable in connection therewith.
Prior to and at the time of due presentment of this Series B
Security for registration of transfer, the Company, the Trustee and any agent of
the Company or the Trustee may treat the person in whose name this Series B
Security is registered as the owner hereof for all purposes, whether or not this
Series B Security shall be overdue, and neither the Company, the Trustee nor any
agent shall be affected by notice to the contrary.
30
This Security shall be governed by and construed in accordance
with the laws of the State of New York, without giving effect to the conflict of
law provisions thereof.
ASSIGNMENT FORM
If you the holder want to assign this Security, fill in the form below and have
your signature guaranteed:
I or we assign and transfer this Security to
________________________________________________________________________________
(Insert assignee's social security or tax ID number)____________________________
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
(Print or type assignee's name, address and zip code) and
irrevocably appoint
________________________________________________________________________________
agent to transfer this Security on the books of the Company.
The agent may substitute another to act for such agent.
________________________________________________________________________________
Date:___________________________ Your signature:_________________________
(Sign exactly as your
name appears on the other
side of this Security)
By:_____________________
Notice: To be
executed by an
executive officer
Signature Guarantee: ________________
31
SECTION 2.04. Form of Trustee's Certificate of
Authentication. This is one of the Securities of the series designated therein
and issued pursuant to the within-mentioned Indenture.
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
Dated:
THE BANK OF NEW YORK,
by
_________________________
Authorized Signatory
SECTION 2.05. Form of Legend for Global Securities. Any Global
Security authenticated and delivered hereunder shall, in addition to the
provisions contained in Sections 2.02 and 2.03, bear a legend in substantially
the following form or such similar form as may be required by the Depositary:
"THIS SECURITY IS A GLOBAL SECURITY WITHIN THE MEANING OF THE
INDENTURE HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF THE
DEPOSITARY OR A NOMINEE OF THE DEPOSITARY OR A SUCCESSOR DEPOSITARY.
THIS SECURITY IS NOT EXCHANGEABLE FOR SECURITIES REGISTERED IN THE NAME
OF A PERSON OTHER THAN THE DEPOSITARY OR ITS NOMINEE EXCEPT IN THE
LIMITED CIRCUMSTANCES DESCRIBED IN THE INDENTURE, AND NO TRANSFER OF
THIS SECURITY (OTHER THAN A TRANSFER OF THIS SECURITY AS A WHOLE BY THE
DEPOSITARY TO A NOMINEE OF THE DEPOSITARY OR BY A NOMINEE OF THE
DEPOSITARY TO THE DEPOSITARY OR ANOTHER NOMINEE OF THE DEPOSITARY) MAY
BE REGISTERED EXCEPT IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THE
INDENTURE.
Unless this certificate is presented by an authorized representative of
The Depository Trust Company (55 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx), a
New York corporation, to the issuer or to its agent for registration of
transfer, exchange or payment, and any certificate issued is registered
in the name of Cede & Co. or in such other name as requested by an
authorized representative of The Depository Trust Company (and any
payment is made to Cede & Co. or to such other entity as is requested
by an authorized representative of The
32
Depository Trust Company), 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."
SECTION 2.06. Form of Legend on Restricted Securities. During
the period beginning on the later of the Issue Date and the last date on which
the Company or any Affiliate of the Company was the owner of a Series A Security
(or any Predecessor Security) and ending on the date two years (or such shorter
period of time as permitted by Rule 144(k) under the Securities Act or any
successor provision thereunder) from any such date (or such longer period as may
be required under the Securities Act or applicable state securities laws in the
opinion of counsel for the Company), any Series A Security issued or owned
during the period set forth above, as the case may be, and any Security issued
upon registration of transfer of, or in exchange for, or in lieu of, such Series
A Security, shall be deemed a "Restricted Security" and shall be subject to the
restrictions on transfer provided in the legend set forth on the face of the
form of Series A Security in Section 2.02(a); provided, however, that the term
"Restricted Security" shall not include (a) any Series A Security which is
issued upon transfer of, or in exchange for, any Security which is not a
Restricted Security or (b) any Series A Security as to which such restrictions
on transfer have been terminated in accordance with Section 3.05, (c) any Series
B Security issued pursuant to the Registered Exchange Offer or (d) any Series B
Security covered by a Shelf Registration Statement (as defined in the
Registration Rights Agreement). Any Restricted Security shall bear the legend
set forth on the face of the Security pursuant to Section 2.02(a).
ARTICLE III
The Securities
SECTION 3.01. Title and Terms. The aggregate principal amount
of Securities which may be authenticated and delivered under this Indenture is
limited to $150,000,000 aggregate principal amount of Series A Securities and
Series B Securities, except for Securities authenticated and delivered upon
registration of transfer of, or in exchange for, or in lieu of, other Securities
pursuant to Section 3.03, 3.04, 3.05, 3.06 or 9.06.
33
The Series A Securities shall be known and designated as the
"7.25% Senior Notes due 2007" of the Company. The Series B Securities shall be
known and designated as the "7.25% Senior Notes due 2007, Series B" of the
Company. The final Stated Maturity of the Series A Securities and the Series B
Securities shall be March 1, 2007, and the Series A Securities and Series B
Securities shall each bear interest at the rate of 7.25% per annum (as adjusted
pursuant to the Registration Rights Agreement) from March 1, 1997 or from the
most recent date to which interest has been paid, as the case may be, payable
semiannually on March 1 and September 1, in each year, commencing September 1,
1997, until the principal thereof is paid or duly provided for. Interest on any
overdue principal, interest (to the extent lawful) or premium, if any, shall be
payable on demand.
Series B Securities may be issued only in exchange for a like
principal amount of Series A Securities pursuant to an Exchange Offer.
Series A Securities offered and sold in reliance on Rule 144A
shall be issued initially in the form of a single permanent global security (the
"U.S. Global Security") and Series A Securities offered and sold in reliance on
Regulation S shall be issued initially in the form of a single permanent global
security (the "Offshore Global Security" and together with the U.S. Global
Security, the "Global Securities"), each substantially in the form set forth in
Sections 2.02(a) and 2.03(a) hereof, deposited with the Trustee, as custodian of
the Depositary, duly executed by the Company and authenticated by the Trustee as
hereinafter provided. The aggregate principal amount of any Global Security may
from time to time be increased or decreased by adjustments made on the records
of the Trustee, as custodian for the Depositary or its nominee, as hereinafter
provided.
Series A Securities which are offered and sold to
Institutional Accredited Investors which are not QIBs (excluding Non-U.S.
Persons) shall be issued in the form of permanent certificated Securities in
registered form (the "U.S. Physical Securities"). Securities issued pursuant to
Section 3.13 in exchange for interests in the U.S. Global Security shall be in
the form of U.S. Physical Securities. Securities issued in exchange for
interests in the Offshore Global Security pursuant to Section 3.13 shall be in
the form of permanent certificated Securities in registered form
34
(the "Offshore Physical Securities" and together with the U.S. Physical
Securities, the "Physical Securities").
Physical Securities shall be in substantially the form set
forth in Sections 2.02(a) and 2.03(a) hereof.
The principal of, premium, if any, and interest on Global
Securities shall be payable to the Depositary or its nominee, as the case may
be, as the sole registered owner and the sole holder of the Global Securities
represented thereby. The principal of, premium, if any, and interest on
Securities in certificated form shall be payable at the office or agency of the
Company maintained for such purpose in The City of New York, or at such other
office or agency of the Company as may be maintained for such purpose; provided,
however, that at the option of the Company interest may be paid by check mailed
to the addresses of the persons entitled thereto as such addresses shall appear
on the Security Register.
At the election of the Company, the entire Indebtedness on the
Securities or certain of the Company's obligations and covenants and certain
Events of Default thereunder may be defeased as provided in Article IV.
SECTION 3.02. Denominations. The Securities shall be issuable
only in denominations of $1,000 or any amount in excess thereof which is an
integral multiple of $1,000; provided, however, that the Series A Securities
shall be issuable only in denominations of $100,000 or any amount in excess
thereof which is an integral multiple of $1,000.
SECTION 3.03. Execution, Authentication, Delivery and Dating.
The Securities shall be executed on behalf of the Company by any two of its
Chairman of the Board, its President or its Vice Presidents. The signature of
any of these officers on the Securities may be manual or facsimile.
Securities bearing the manual or facsimile signature of
individuals who were at any time the proper officers of the Company shall bind
the Company, notwithstanding that such individuals or any of them have ceased to
hold such offices prior to the authentication and delivery of such Securities or
did not hold such offices at the date of such Securities.
35
At any time and from time to time after the execution and
delivery of this Indenture, the Company may deliver Securities executed by the
Company to the Trustee for authentication, together with a Company Order for the
authentication and delivery of such Securities, and the Trustee in accordance
with the Company Order shall authenticate and make available for delivery such
Securities as provided in this Indenture. On Company Order, the Trustee or an
authenticating agent shall authenticate for original issue Series B Securities
in an aggregate principal amount not to exceed $150,000,000; provided that such
Series B Securities shall be issuable only upon the valid surrender for
cancelation of Series A Securities of a like aggregate principal amount in
accordance with an Exchange Offer pursuant to the Registration Rights Agreement.
In each case, the Trustee shall be entitled to receive an Officer's Certificate
and an Opinion of Counsel of the Company that it may reasonably request in
connection with such authentication of Securities. Such order shall specify the
amount of Securities to be authenticated and the date on which the original
issue of Series A Securities or Series B Securities is to be authenticated. The
aggregate principal amount of Securities outstanding at any time may not exceed
$150,000,000 except for Securities authenticated and delivered upon registration
of transfer of, or in exchange for, or in lieu of, other Securities pursuant to
Section 3.01.
Each Security shall be dated the date of its authentication.
No Security shall be entitled to any benefit under this
Indenture or be valid or obligatory for any purpose unless there appears on such
Security a certificate of authentication substantially in the form provided for
herein executed by the Trustee by manual signature, and such certificate upon
any Security shall be conclusive evidence, and the only evidence, that such
Security has been duly authenticated and made available for delivery hereunder
and is entitled to the benefits of this Indenture. Notwithstanding the
foregoing, if any Security shall have been authenticated and made available for
delivery hereunder but never issued and sold by the Company, and the Company
shall deliver such Security to the Trustee for cancelation as provided in
Section 3.09 together with a written statement (which need not comply with
Section 1.02 and need not be accompanied by an Opinion of Counsel) stating that
such Security has never been issued and sold by the Company,
36
for all purposes of this Indenture such Security shall be deemed never to have
been authenticated and delivered hereunder and shall never be entitled to the
benefits of this Indenture.
In case the Company, pursuant to Article VIII, shall be
consolidated, amalgamated, merged with or into any other person or shall convey,
transfer or lease substantially all of its properties and assets to any person,
and the successor person resulting from such consolidation, amalgamation or
surviving such merger, or into which the Company shall have been merged, or the
person which shall have received a conveyance, transfer or lease as aforesaid,
shall have executed an indenture supplemental hereto with the Trustee pursuant
to Article VIII, any of the Securities authenticated or made available for
delivery prior to such consolidation, amalgamation, merger, conveyance, transfer
or lease may, from time to time, at the request of the successor person, be
exchanged for other Securities executed in the name of the successor person with
such changes in terminology and form as may be appropriate, but otherwise in
substance of like tenor as the Securities surrendered for such exchange and of
like principal amount; and the Trustee, upon Company Order of the successor
person, shall authenticate and deliver replacement Securities as specified in
such request for the purpose of such exchange. If such Securities shall at any
time be authenticated and made available for delivery in any new name of a
successor person pursuant to this Section 3.03 in exchange or substitution for
or upon registration of transfer of any Securities, such successor person, at
the option of the Holders but without expense to them, shall provide for the
exchange of all Securities at the time Outstanding for Securities authenticated
and delivered in such new name.
The Trustee may appoint an authenticating agent to
authenticate Securities on behalf of the Trustee if directed to do so by a
Company Order. Each reference in this Indenture to authentication by the Trustee
includes authentication by each such agent. An authenticating agent has the same
rights as any Security Registrar or Paying Agent to deal with the Company and
its Affiliates.
If any of the Securities are to be issued in the form of one
or more Global Securities, then the Company shall execute and the Trustee shall
authenticate and make available for delivery one or more Global Securities that
(i) shall represent and shall be in minimum denominations of
37
$100,000, in the case of the Series A Securities, and $1,000, in the case of the
Series B Securities, or integral multiples of $1,000 in excess thereof, (ii)
shall be registered in the name of the Depositary for such Global Security or
Securities or the nominee of such Depositary, (iii) shall be delivered by the
Trustee to such Depositary or pursuant to such Depositary's instructions and
(iv) shall bear the legend in substantially the form set forth in Section 2.05.
SECTION 3.04. Temporary Securities. Pending the preparation of
definitive Securities, the Company may execute, and upon Company Order the
Trustee shall authenticate and make available for delivery, temporary Securities
which are printed, lithographed, typewritten or otherwise produced, in any
authorized denomination, substantially of the tenor of the definitive Securities
in lieu of which they are issued and with such appropriate insertions,
omissions, substitutions and other variations as the officers executing such
Securities may determine, as evidenced by their execution of such Securities.
Such temporary Securities may be in the form of Global Securities.
If temporary Securities are issued, the Company will cause
definitive Securities to be prepared without unreasonable delay. After the
preparation of definitive Securities, the temporary Securities shall be
exchangeable for definitive Securities of like tenor upon surrender of the
temporary Securities at the office or agency of the Company designated for such
purpose pursuant to Section 3.14, without charge to the Holder. Upon surrender
for cancelation of any one or more temporary Securities the Company shall
execute and the Trustee shall authenticate and make available for delivery in
exchange therefor a like principal amount of definitive Securities of like tenor
and of any authorized denominations. Until so exchanged the temporary Securities
shall in all respects be entitled to the same benefits under this Indenture as
definitive Securities.
SECTION 3.05. Registration, Registration of Transfer and
Exchange. The Company shall cause to be kept at the Corporate Trust Office of
the Trustee a register (the "Security Register") in which, subject to such
reasonable regulations as it may prescribe, the Company shall provide for the
registration of Securities and of transfers of Securities. The Trustee is hereby
appointed "Security
38
Registrar" for the purpose of registering Securities and transfers of Securities
as herein provided at the Corporate Trust Office.
Upon surrender for registration of transfer of any Security at
the office or agency of the Company designated for such purpose pursuant to
Section 3.14, the Company shall execute and the Trustee shall authenticate and
deliver (in the name of the designated transferee or transferees) one or more
new Securities, of any authorized denominations and of a like aggregate
principal amount and tenor and bearing a number not contemporaneously
outstanding.
Subject to the provisions of Sections 3.12 and 3.13, at the
option of the Holder, Securities may be exchanged for other Securities, of any
authorized denominations and of a like aggregate principal amount and tenor,
upon surrender of the Securities to be exchanged at the office or agency of the
Company designated for such purpose pursuant to Section 3.14. Whenever any
Securities are so surrendered for exchange, the Company shall execute, and the
Trustee shall authenticate and make available for delivery, the Securities which
the Holder making the exchange is entitled to receive.
If a Series A Security is a U.S. Physical Security, then as
provided in this Indenture and subject to the limitations herein set forth, the
Holder, provided it is a Qualified Institutional Buyer, may exchange such
Security for a book-entry security by instructing the Trustee to arrange for
such Series A Security to be represented by a beneficial interest in a Global
Security.
All Securities issued upon any registration of transfer or
exchange of Securities, including any exchange pursuant to an Exchange Offer,
shall be the valid obligations of the Company, evidencing the same debt and
entitled to the same benefits under this Indenture as the Securities surrendered
upon such registration of transfer or exchange and no such transfer or exchange
shall constitute a repayment of any obligation nor create any new obligation, of
the Company.
Every Security presented or surrendered for registration of
transfer or for exchange shall (if so required by the Company or the Trustee) be
duly endorsed, or be accompanied by a written instrument of transfer in form
satisfactory to the Company and the Security Registrar duly
39
executed, by the Holder thereof or such Holder's attorney duly authorized in
writing.
Every Restricted Security shall be subject to the restrictions
on transfer provided in the legend required to be set forth on the face of each
Restricted Security pursuant to Section 2.06, Section 2.02(a) and the
restrictions set forth in this Section 3.05, and the Holder of each Restricted
Security, by such Holder's acceptance thereof, agrees to be bound by such
restrictions on transfer.
The restrictions imposed by this Section 3.05 and Section 2.06
upon the transferability of any particular Restricted Security shall cease and
terminate (a) in the case of an Offshore Global Security or an Offshore Physical
Security, on the 41st day after the Issue Date or (b) in the case of a U.S.
Global Security or a U.S. Physical Security, on (x) the later of March 10, 1999
or two years (or such shorter period of time as permitted by Rule 144(k) under
the Securities Act or any successor provision thereunder) after the later of the
Issue Date or the last date on which the Company or any Affiliate of the Company
was the owner of such Restricted Security (or any predecessor of such Restricted
Security) or (y) (if earlier) if and when such Restricted Security has been sold
pursuant to an effective registration statement under the Securities Act or,
unless the Holder thereof is an affiliate of the Company within the meaning of
Rule 144 (or such successor provision), transferred pursuant to Rule 144 or Rule
904 under the Securities Act (or any successor provision). Any Restricted
Security as to which such restrictions on transfer shall have expired in
accordance with their terms or shall have terminated may, upon surrender of such
Restricted Security for exchange to the Trustee or any transfer agent in
accordance with the provisions of this Section 3.05, be exchanged for a new
Security, of like series, tenor and aggregate principal amount, which shall not
bear the restrictive legend required by Section 2.06 and shall thereafter be
deemed not to be a Restricted Security for any purpose under this Indenture. The
Company shall inform the Trustee in writing of the effective date of any
registration statement registering any Restricted Securities under the
Securities Act.
No service charge shall be made for any registration of
transfer, exchange or redemption of Securities, but the Company may require
payment of a sum
40
sufficient to cover any tax or other governmental charge that may be imposed in
connection with any registration of transfer or exchange of Securities, other
than exchanges pursuant to Section 3.04 or 9.06 not involving any transfer.
The Company may but shall not be required (i) to issue,
register the transfer of or exchange Securities during a period beginning at the
opening of business 15 days before the day of the mailing of a notice of
redemption of Securities selected for redemption under Section 11.03 and ending
at the close of business on the day of such mailing, or (ii) to register the
transfer of or exchange any Security so selected for redemption in whole or in
part, except the unredeemed portion of any Security being redeemed in part.
Notwithstanding any other provision of this Indenture, a
Global Security may not be transferred except as a whole by the Depositary for
such Global Security to a nominee of the Depositary or by a nominee of the
Depositary to the Depositary or another nominee of the Depositary.
Any Holder of the Global Security shall, by acceptance of such
Global Security, agree that transfers of beneficial interests in such Global
Security may be effected only through a book-entry system maintained by the
Holder of such Global Security (or its agent), and that ownership of a
beneficial interest in the Security shall be required to be reflected in a book
entry.
When Securities are presented to the Security Registrar with a
request to register the transfer or to exchange them for an equal principal
amount of Securities of other authorized denominations, the Security Registrar
shall register the transfer or make the exchange as requested if its
requirements for such transactions are met. To permit registrations of transfers
and exchanges, the Company shall execute and the Trustee shall authenticate
Securities at the Security Registrar's request.
SECTION 3.06. Mutilated, Destroyed, Lost and Stolen
Securities. If any mutilated Security is surrendered to the Trustee, the Company
shall execute and the Trustee shall authenticate and deliver in exchange
therefor a new Security of the same series and of like tenor and principal
amount and bearing a number not contemporaneously outstanding.
41
If there shall be delivered to the Company and the Trustee (i)
evidence to their satisfaction of the destruction, loss or theft of any Security
and (ii) such security or indemnity as may be required by them to save each of
them and any agent of either of them harmless, then, in the absence of notice to
the Company or the Trustee that such Security has been acquired by a bona fide
purchaser, the Company shall execute and upon its written request the Trustee
shall authenticate and deliver, in lieu of any such destroyed, lost or stolen
Security, a new Security, including a Global Security if the destroyed, lost or
stolen Security was a Global Security, of the same series and of like tenor and
principal amount and bearing a number not contemporaneously outstanding.
In case any such mutilated, destroyed, lost or stolen Security
has become or is about to become due and payable, the Company in its discretion
may, instead of issuing a new Security, pay such Security.
Upon the issuance of any new Security under this Section, the
Company may require the payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in relation thereto and any other
expenses (including the fees and expenses of the Trustee) connected therewith.
Every new Security issued pursuant to this Section in lieu of
any destroyed, lost or stolen Security shall constitute an original additional
contractual obligation of the Company, whether or not the destroyed, lost or
stolen Security shall be at any time enforceable by anyone, and shall be
entitled to all the benefits of this Indenture equally and proportionately with
any and all other Securities duly issued hereunder. A new Security shall have
such legends as appeared on the old Security unless the Company determines
otherwise.
The provisions of this Section are exclusive and shall
preclude (to the extent lawful) all other rights and remedies with respect to
the replacement or payment of mutilated, destroyed, lost or stolen Securities.
SECTION 3.07. Payment of Interest; Interest Rights Preserved.
Interest on any Security which is payable, and is punctually paid or duly
provided for, on any date shall be paid to the Person in whose name that
Security (or one or more Predecessor Securities) is registered in the
42
Security Register at the close of business on the record date for such interest
payment date.
Any interest on any Security which is payable but is not
punctually paid or duly provided for on any interest payment date (herein called
"Defaulted Interest") shall forthwith cease to be payable to the Holder on the
relevant record date by virtue of having been such Holder, and such Defaulted
Interest may be paid by the Company, at its election in each case, as provided
in clause (a) or (b) below:
(a) The Company may elect to make payment of any Defaulted
Interest to the Persons in whose names the Securities (or their
respective Predecessor Securities) are registered at the close of
business on a Special Record Date for the payment of such Defaulted
Interest, which shall be fixed in the following manner. The Company
shall notify the Trustee in writing of the amount of Defaulted Interest
proposed to be paid on each Security and the date of the proposed
payment, and at the same time the Company shall deposit with the
Trustee an amount of money equal to the aggregate amount proposed to be
paid in respect of such Defaulted Interest or shall make arrangements
satisfactory to the Trustee for such deposit prior to the date of the
proposed payment, such money when deposited to be so held in trust for
the benefit of the Persons entitled to such Defaulted Interest as in
this clause provided. Thereupon the Trustee shall fix a Special Record
Date for the payment of such Defaulted Interest which shall be not more
than 15 days and not less than 10 days prior to the date of the
proposed payment and not less than 10 days after the receipt by the
Trustee of the notice of the proposed payment. The Trustee shall
promptly notify the Company of such Special Record Date and, in the
name and at the expense of the Company, shall cause notice of the
proposed payment of such Defaulted Interest and the Special Record Date
therefor to be mailed, first-class postage prepaid, to each Holder of
Securities at such Holder's address as it appears in the Security
Register, not less than 10 days prior to such Special Record Date.
Notice of the proposed payment of such Defaulted Interest and the
Special Record Date therefor having been so mailed, such Defaulted
Interest shall be paid to the Persons in whose names the Securities (or
their respective Predecessor Securities) are registered at the close of
43
business on such Special Record Date and shall no longer be payable
pursuant to the following clause (b).
(b) The Company may make payment of any Defaulted Interest on
the Securities in any other lawful manner not inconsistent with the
requirements of any securities exchange on which such Securities may be
listed, and upon such notice as may be required by such exchange, if,
after notice given by the Company to the Trustee of the proposed
payment pursuant to this clause, such manner of payment shall be deemed
practicable by the Trustee.
Subject to the foregoing provisions of this Section, each
Security delivered under this Indenture upon registration of transfer of, or in
exchange for, or in lieu of, any other Security shall carry the rights to
interest accrued and unpaid, and to accrue, which were carried by such other
Security.
SECTION 3.08. Persons Deemed Owners. Prior to due presentment
of a Security for registration of transfer, the Company, the Trustee and any
agent of the Company or the Trustee may treat the Person in whose name such
Security is registered in the Security Register as the owner of such Security
for the purpose of receiving payment of principal of (and premium, if any) and
(subject to Section 3.07) interest on such Security and for all other purposes
whatsoever, whether or not such Security be overdue, and neither the Company,
the Trustee nor any agent of the Company or the Trustee shall be affected by
notice to the contrary.
No holder of any beneficial interest in any Global Security
held on its behalf by a Depositary (or its nominee) shall have any rights under
this Indenture with respect to such Global Security or any Security represented
thereby, and such Depositary may be treated by the Company, the Trustee, and any
agent of the Company or the Trustee as the owner of such Global Security or any
Security represented thereby for all purposes whatsoever. Notwithstanding the
foregoing, with respect to any Global Security, 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 a
Depositary or impair, as between a Depositary and such holders of beneficial
interest in such Global Security, the operation of customary practices governing
the
44
exercise of the rights of the Depositary (or its nominees) as Holder of such
Global Security.
SECTION 3.09. Cancelation. All Securities surrendered for
payment or registration of transfer or exchange shall, if surrendered to any
Person other than the Trustee, be delivered to the Trustee and shall be promptly
canceled by it. The Company may at any time deliver to the Trustee for
cancelation any Securities previously authenticated and made available for
delivery hereunder which the Company may have acquired in any manner whatsoever,
and may deliver to the Trustee (or to any other Person for delivery to the
Trustee) for cancelation any Securities previously authenticated hereunder which
the Company has not issued and sold, and all Securities so delivered shall be
promptly canceled by the Trustee. No Securities shall be authenticated in lieu
of or in exchange for any Securities canceled as provided in this Section,
except as expressly permitted by this Indenture. All canceled Securities held by
the Trustee shall be returned to the Company.
SECTION 3.10. Computation of Interest. Interest
on the Securities of each series shall be computed on the
basis of a 360-day year of twelve 30-day months.
SECTION 3.11. CUSIP Numbers. The Company in issuing the
Securities may use "CUSIP" numbers, and if it does so, the Trustee shall use the
applicable CUSIP number in notices of redemption or exchange as a convenience to
Holders; provided that any such notice may state that no representation is made
as to the correctness or accuracy of the CUSIP number printed in the notice or
on the Securities, and that reliance may be placed only on the other
identification numbers printed on the Securities. The Company will promptly
notify the Trustee of any change in any CUSIP number. All Series B Securities
shall bear identical CUSIP numbers. The Company shall promptly notify the
Trustee in writing of any change in the CUSIP number of either series of
Securities.
SECTION 3.12. Book-Entry Provisions for Global Security. (a)
Each Global Security initially shall (i) be registered in the name of the
Depositary for such Global Security or the nominee of such Depositary, (ii) be
delivered to the Trustee as custodian for such Depositary and (iii) bear legends
as set forth in Section 2.05.
45
(b) Transfers of a Global Security shall be limited to
transfers of such Global Security in whole, but not in part, to the Depositary,
its successors or their respective nominees. Interests of beneficial owners in a
Global Security may be transferred in accordance with the rules and procedures
of the Depositary and the provisions of Section 3.13. Beneficial owners may
obtain Physical Securities in exchange for their beneficial interests in a
Global Security upon request in accordance with the Depositary's and the
Security Registrar's procedures (x) in the case of the Offshore Global Security,
at any time on or after the 41st day following the Issue Date, and (y) in the
case of the U.S. Global Security, at any time. In addition, Physical Securities
shall be issued in exchange for a Global Security if (i) the Depositary notified
the Company that it is unwilling or unable to continue as Depositary for a
Global Security or the Depositary ceases to be a "clearing agency" registered
under the Exchange Act and, in each case, a successor Depositary is not
appointed by the Company within 90 days of such notice or such cessation, as the
case may be, (ii) the Company executes and delivers to the Trustee a Company
Order that such Global Security shall be so exchangeable or (iii) an Event of
Default has occurred and is continuing with respect to any Securities
represented by a Global Security. Upon the occurrence in respect of any Global
Security of any one or more of the conditions specified in clauses (i), (ii) and
(iii) of the preceding sentence such Global Security may be exchanged for
Securities not bearing the legend specified in Section 2.05 and registered in
the names of such Persons as may be specified by the Depositary (including
Persons other than the Depositary).
(c) Any beneficial interest in one of the Global Securities
that is transferred to a person who takes delivery in the form of an interest in
the other Global Security will, upon transfer, cease to be an interest in such
Global Security and become an interest in the other Global Security and,
accordingly, will thereafter be subject to all transfer restrictions, if any,
and other procedures applicable to beneficial interests in such other Global
Security for as long as it remains such an interest.
(d) In connection with any transfer of a portion of the
beneficial interest in the U.S. Global Security to beneficial owners pursuant to
subsection (b) of this Section, the Security Registrar shall reflect on its
books and records the date and a decrease in the principal amount
46
of the U.S. Global Security in an amount equal to the principal amount of the
beneficial interest in the U.S. Global Security to be transferred, and the
Company shall execute, and the Trustee shall authenticate and make available for
delivery, one or more U.S. Physical Securities of like tenor and amount.
(e) In connection with the transfer of an entire Global
Security to beneficial owners thereof pursuant to subsection (b) of this
Section, such Global Security shall be deemed to be surrendered to the Trustee
for cancelation, and the Company shall execute, and the Trustee shall
authenticate and make available for delivery, to each beneficial owner
identified by the Depositary in exchange for its beneficial interest in such
Global Security, an equal aggregate principal amount of Physical Securities of
authorized denominations.
(f) Any U.S. Physical Security delivered in exchange for an
interest in the U.S. Global Security pursuant to subsection (b) or subsection
(d) of this Section shall, except as otherwise provided by paragraph (a)(i)(x)
or paragraph (e) of Section 3.13, bear the Private Placement Legend.
(g) The registered holder of the 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.
(h) QIBs that are beneficial owners of interests in a Global
Security may receive Physical Securities (which shall bear the Private Placement
Legend if required by Section 2.06) in accordance with the procedures of the
Depositary. In connection with the execution, authentication and delivery of
such Physical Securities, the Registrar shall reflect on its books and records a
decrease in the principal amount of the relevant Global Security equal to the
principal amount of such Physical Securities, and the Company shall execute and
the Trustee shall authenticate and deliver one or more Physical Securities
having an equal aggregate principal amount.
SECTION 3.13. Special Transfer Provisions. Unless and until
(i) such Series A Security is sold under an effective registration statement or
(ii) such Series A Security is exchanged for a Series B Security in connection
47
with an effective registration statement, in each case pursuant to the
Registration Rights Agreement, the following provisions shall apply to each
Series A Security:
(a) Transfers to Non-QIB Institutional Accredited Investors.
The following provisions shall apply with respect to registration of
any proposed transfer of a Restricted Security to any Institutional
Accredited Investor which is not a QIB (excluding Non-U.S. persons):
(i) The Security Registrar shall register the
transfer of any Series A Security, whether or not such
Security bears the Private Placement Legend, if (x) the
requested transfer is subsequent to a date which is two years
after the later of the Issue Date and the last date on which
the Company or any of its Affiliates was the owner of such
Security or (y) the proposed transferee has delivered to the
Security Registrar a certificate substantially in the form of
Exhibit A hereto.
(ii) If the proposed transferor is an Agent Member
holding a beneficial interest in the U.S. Global Security
seeking to transfer a U.S. Physical Security to another
person, upon receipt by the Security Registrar of (x) the
documents, if any, required by paragraph (i) and (y)
instructions given in accordance with the Depositary's and the
Security Registrar's procedures therefor, the Security
Registrar shall reflect on its books and records the date and
a decrease in the principal amount of the U.S. Global Security
in an amount equal to the principal amount of the beneficial
interest in the U.S. Global Security to be transferred, and
the Company shall execute, and the Trustee shall authenticate
and make available for delivery, one or more U.S. Physical
Certificates of like tenor and amount.
(b) Transfers to QIBs. The following provisions shall apply
with respect to the registration of any
48
proposed transfer of a Restricted Security to a QIB(other than a
Non-U.S. person):
(i) If the Security to be transferred consists of (x)
U.S. Physical Securities, the Security Registrar shall
register the transfer if such transfer is being made by a
proposed transferor who has checked the box provided for on
the form of Series A Security stating, or has otherwise
advised the Company and the Security Registrar in writing,
that the sale has been made in compliance with the provisions
of Rule 144A to a transferee who has signed the certification
provided for on the form of Series A Security stating, or has
otherwise advised the Company and the Security Registrar in
writing, that it is purchasing the Series A Security for its
own account or an account with respect to which it exercises
sole investment discretion and that it and any such account
are QIBs within the meaning of Rule 144A, and that it is aware
that the sale to it is being made in reliance on Rule 144A and
acknowledges that it has received such information regarding
the Company as it has requested pursuant to Rule 144A or has
determined not to request such information and that it is
aware that the transferor is relying upon its foregoing
representations in order to claim the exemption form
registration provided by Rule 144A or (y) an interest in the
U.S. Global Security, the transfer of such interest may be
effected only through the book-entry system maintained by the
Depositary.
(ii) If the proposed transferee is an Agent Member, and
the Series A Security to be transferred consists of U.S.
Physical Securities, upon receipt by the Security Registrar of
instructions given in accordance with the Depositary's and the
Security Registrar's procedures therefor, the Security
Registrar shall reflect on its books and records the date and
an increase in the principal amount of the U.S. Global
Security in an amount equal to the principal amount of the
U.S. Physical Securities to be transferred, and the Trustee
shall cancel the U.S. Physical Securities so transferred.
49
(c) Transfers of Interests in the Offshore Global Security or
Offshore Physical Securities to U.S. Persons. The following provisions
shall apply with respect to any transfer of interests in the Offshore
Global Security or Offshore Physical Securities to U.S. Persons:
(i) prior to the removal of the Private Placement
Legend from the Offshore Global Security or Offshore Physical
Securities pursuant to Section 2.06 and Section 3.05, the
Security Registrar shall refuse to register such transfer; and
(ii) after such removal, the Security Registrar shall
register the transfer of any such Security without requiring
any additional certification.
(d) Transfers to Non-U.S. Persons at Any Time. The following
provisions shall apply with respect to any transfer of a Series A
Security to a Non-U.S. Person:
(i) The Security Registrar shall register any
proposed transfer to any Non-U.S. Person if the Security to be
transferred is a U.S. Physical Security or an interest in the
U.S. Global Security only upon receipt of a certificate
substantially in the form of Exhibit B from the proposed
transferor.
(ii) (x) If the proposed transferor is an Agent Member
holding a beneficial interest in the U.S. Global Security,
upon receipt by the Registrar of (1) the documents required by
paragraph (i) of this paragraph (d) and (2) instructions in
accordance with the Depositary's and the Security Registrar's
procedures, the Security Registrar shall reflect on its books
and records the date and a decrease in the principal amount of
the U.S. Global Security in an amount equal to the principal
amount of the beneficial interest in the U.S. Global Security
to be transferred, and (y) if the proposed transferee is an
Agent Member, upon receipt by the Security Registrar of
instructions given in accordance with the Depositary's and the
Security Registrar's
50
procedures, the Security Registrar shall reflect on its books
and records the date and an increase in the principal amount
of the Offshore Global Security in an amount equal to the
principal amount of the U.S. Physical Securities or the U.S.
Global Security, as the case may be, to be transferred, and
the Trustee shall cancel the Physical Security so transferred
or decrease the principal amount of the U.S. Global Security,
as the case may be.
(e) Private Placement Legend. Upon the transfer, exchange or
replacement of Securities not bearing the Private Placement Legend, the
Security Registrar shall deliver Securities that do not bear the
Private Placement Legend. Upon the transfer, exchange or replacement of
Securities bearing the Private Placement Legend, the Security Registrar
shall deliver only Securities that bear the Private Placement Legend
unless either (i) the Private Placement Legend is no longer required
pursuant to Section 2.06 and Section 3.05, or (ii) there is delivered
to the Security Registrar an Opinion of Counsel reasonably satisfactory
to the Company and the Trustee to the effect that neither such legend
nor the related restrictions on transfer are required in order to
maintain compliance with the provisions of the Securities Act.
(f) General. By its acceptance of any Security, or any
beneficial interest in any Global Security, bearing the Private
Placement Legend, each Holder of such Security or beneficial interest
acknowledges the restrictions on transfer of such Security set forth in
this Indenture and in the Private Placement Legend and agrees that it
will transfer such Security only as provided in this Indenture. The
Security Registrar shall not register a transfer of any Security unless
such transfer complies with the restrictions on transfer of such
Security set forth in this Indenture. In connection with any transfer
of Securities to an Institutional Accredited Investor, each such Holder
or beneficial owner agrees by its acceptance of the Securities to
furnish the Security Registrar or the Company such certifications,
legal opinions or other information as such Person may reasonably
require to confirm that such transfer is being made pursuant to an
exemption from, or a transaction not subject to, the
51
registration requirements of the Securities Act; provided that the
Security Registrar shall not be required to determine (but may rely on
a determination made by the Company with respect to) the sufficiency of
any such certifications, legal opinions or other information.
The Security Registrar shall retain copies of all letters,
notices and other written communications received pursuant to Section
3.12 or this Section 3.13. The Company shall have the right to inspect
and make copies of all such letters, notices or other written
communications at any reasonable time upon the giving of reasonable
written notice to the Security Registrar.
SECTION 3.14. Maintenance of Office or Agency. The Company
will maintain in The City of New York, New York, an office or agency where
Securities may be presented or surrendered for payment, where Securities may be
surrendered for registration of transfer or exchange and where notices and
demands to or upon the Company in respect of the Securities and this Indenture
may be served. The Corporate Trust Office of the Trustee shall be such office or
agency of the Company, unless the Company shall designate and monitor the other
office or agency for one or more of such purposes. The Company will give prompt
written notice to the Trustee of the location and any change in the location of
such office or agency. If at any time the Company shall fail to maintain any
such required office or agency or shall fail to furnish the Trustee with the
address thereof, such presentations, surrenders, notices and demands may be made
or served at the Corporate Trust Office of the Trustee, and the Company hereto
appoints the Trustee as its agent to receive all such presentations, surrenders,
notices and demands.
The Company may also from time to time designate one or more
other offices or agencies where Securities may be presented or surrendered for
any or all such purposes and may from time to time rescind such designations;
provided, however, that no such designation or rescission shall in any manner
relieve the Company of its obligation to maintain an office or agency in The
City of New York, New York, for such purposes. The Company will give prompt
written notice to the Trustee of any such designation or rescission and of any
change in the location of any such other office or agency.
52
SECTION 3.15. Money for Securities Payments To Be Held in
Trust. If the Company shall at any time act as its own Paying Agent, it will, on
or before each due date of the principal of (and premium, if any) or interest on
any of the Securities, segregate and hold in trust for the benefit of the
Persons entitled thereto a sum in the currency in which such Securities are
payable sufficient to pay the principal (and premium, if any) or interest so
becoming due until such sums shall be paid to such Persons or otherwise disposed
of as herein provided and will promptly notify the Trustee of its failure so to
act.
Whenever the Company shall have one or more Paying Agents, it
will, prior to each due date of the principal of (and premium, if any) or
interest on any Securities, deposit with a Paying Agent a sum sufficient to pay
the principal (and premium, if any) or interest so becoming due, such sum to be
held in trust for the benefit of the Persons entitled to such principal, premium
or interest, and (unless such Paying Agent is the Trustee) the Company will
promptly notify the Trustee of its failure so to act.
The Company will cause each Paying Agent other than the
Trustee to execute and deliver to the Trustee an instrument in which such Paying
Agent shall agree with the Trustee, subject to the provisions of this Section,
that such Paying Agent will:
(a) hold all sums held by it for the payment of the principal
of (and premium, if any) or interest on Securities in trust for the
benefit of the Persons entitled thereto until such sums shall be paid
to such Persons or otherwise disposed of as herein provided;
(b) give the Trustee notice of any default by the
Company in the making of any payment of principal (and
premium, if any) or interest on the Securities; and
(c) at any time during the continuance of any such default,
upon the written request of the Trustee, forthwith pay to the Trustee
all sums so held in trust by such Paying Agent.
The Company may at any time, for the purpose of obtaining the
satisfaction and discharge of this Indenture or for any other purpose, pay, or
by Company Order direct any Paying Agent to pay, to the Trustee all sums held in
trust by the Company or such Paying Agent, such sums to be
53
held by the Trustee upon the same trusts as those upon which such sums were held
by the Company or such Paying Agent, and, upon such payment by any Paying Agent
to the Trustee, such Paying Agent shall be released from all further liability
with respect to such money.
Any money deposited with the Trustee or any Paying Agent, or
then held by the Company, in trust for the payment of the principal of (and
premium, if any) or interest on any Security and remaining unclaimed for two
years after such principal (and premium, if any) or interest has become due and
payable shall be paid to the Company on Company Request, or (if then held by the
Company) shall be discharged from such trust; and the Holder of such Security
shall thereafter, as an unsecured general creditor, look only to the Company for
payment thereof, and all liability of the Trustee or such Paying Agent with
respect to such trust money, and all liability of the Company as trustee
thereof, shall thereupon cease; provided, however, that the Trustee or such
Paying Agent, before being required to make any such repayment, may at the
expense of the Company cause to be published once, in a newspaper published in
the English language, customarily published on each Business Day and of general
circulation in the Borough of Manhattan, The City of New York, notice that such
money remains unclaimed and that, after a date specified therein, which shall
not be less than 30 days from the date of such publication, any unclaimed
balance of such money then remaining will be repaid to the Company on Company
Request.
ARTICLE IV
Satisfaction and Discharge
SECTION 4.01. Satisfaction and Discharge of Indenture. This
Indenture shall upon Company Request cease to be of further effect (except as to
any surviving rights of registration of transfer or exchange of Securities
herein expressly provided for), and the Trustee, at the expense of the Company,
shall execute proper instruments acknowledging satisfaction and discharge of
this Indenture, when
(a) either
(i) all Securities theretofore authenticated and
delivered (other than (A) Securities which have been destroyed, lost or
stolen and which have been
54
replaced or paid as provided in Section 3.06 and (B) Securities for
whose payment money has theretofore been deposited in trust or
segregated and held in trust by the Company and thereafter repaid to
the Company or discharged from such trust, as provided in Section 3.15)
have been delivered to the Trustee for cancelation; or
(ii) all such Securities not theretofore
delivered to the Trustee for cancelation
(A) have become due and payable; or
(B) will become due and payable at their
Stated Maturity within one year;
and the Company, in the case of (A) or (B), has deposited or caused to
be deposited with the Trustee as trust funds in trust for the purpose
an amount, in the currency in which such Securities are payable,
sufficient to pay and discharge the entire indebtedness on such
Securities not theretofore delivered to the Trustee for cancelation,
for principal (and premium, if any) and interest to the date of such
deposit (in the case of Securities which have become due and payable)
or to the respective Stated Maturity;
(b) the Company has paid or caused to be paid all
other sums payable hereunder by the Company; and
(c) the Company has delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that all conditions
precedent herein provided for relating to the satisfaction and
discharge of this Indenture have been complied with.
Notwithstanding the satisfaction and discharge of this
Indenture, the obligations of the Company to the Trustee under Section 6.07,
and, if money shall have been deposited with the Trustee pursuant to subclause
(ii) of clause (a) of this Section, the obligations of the Trustee under Section
4.02 and the last paragraph of Section 3.15, shall survive.
SECTION 4.02. Application of Trust Money. Subject to
provisions of the last paragraph of Section 3.15, all money deposited with the
Trustee pursuant to Section 4.01 shall be held in trust and applied by it, in
55
accordance with the provisions of the Securities and this Indenture, to the
payment, either directly or through any Paying Agent (including the Company
acting as its own Paying Agent) as the Trustee may determine, to the Persons
entitled thereto, of the principal (and premium, if any) and interest for whose
payment such money has been deposited with the Trustee but such money need not
be segregated from other funds except to the extent required by law.
SECTION 4.03. Defeasance and Discharge of Indenture. The
Company shall be deemed to have paid and discharged the entire indebtedness on
all the Outstanding Securities on the 124th day after the date of the deposit
referred to in subparagraph (d) hereof, and the provisions of this Indenture, as
they relate to such Outstanding Securities, shall no longer be in effect (and
the Trustee, at the expense of the Company, shall, at Company Request, execute
proper instruments acknowledging the same), except as to:
(a) the rights of Holders of Securities to receive, from the
trust funds described in subparagraph (d) hereof, (i) payment of the
principal of (and premium, if any) or interest on the Outstanding
Securities on the Stated Maturity of such principal or installment of
principal or interest and (ii) the benefit of any mandatory sinking
fund payments applicable to the Securities on the day on which such
payments are due and payable in accordance with the terms of this
Indenture and the Securities;
(b) the Company's obligations with respect to such
Securities under Sections 3.05, 3.06, 3.14 and 3.15;
(c) the rights, powers, trusts, duties and
immunities of the Trustee hereunder;
provided that the following conditions shall have been satisfied:
(d) the Company has deposited or caused to be irrevocably
deposited with the Trustee (or another trustee satisfying the
requirements of Section 6.09) as trust funds in the trust, specifically
pledged as security for, and dedicated solely to, the benefit of the
Holders of the Securities, (i) money in an amount, or (ii) U.S.
Government Obligations which through the payment of interest and
principal in respect thereof in
56
accordance with their terms will provide not later than one day before
the due date of any payment referred to in clause (A) or (B) of this
subparagraph (d) money in an amount or (iii) a combination thereof,
sufficient, in the opinion of a nationally recognized firm of
independent certified public accountants expressed in a written
certification thereof delivered to the Trustee, to pay and discharge
the principal of (and premium, if any) and each installment of
principal of (and premium, if any) and interest on the Outstanding
Securities on the Stated Maturity of such principal or installment of
principal and interest;
(e) such deposit shall not cause the Trustee with respect to
the Securities to have a conflicting interest as defined in Section
6.08 and for purposes of the Trust Indenture Act with respect to the
Securities;
(f) such deposit will not result in a breach or violation of,
or constitute a default under, this Indenture or any other agreement or
instrument to which the Company is a party or by which it is bound;
(g) no Event of Default of the type referred to in paragraph
(e) or (f) with respect to the Company or event which with notice or
lapse of time would become such an Event of Default shall have occurred
and be continuing on the date of such deposit or during the period
ending on the 123rd day after such date;
(h) the Company has delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel to the effect that there has been
a change in applicable Federal law such that, or the Company has
received from, or there has been published by, the Internal Revenue
Service a ruling to the effect that, Holders of the Securities will not
recognize income, gain or loss for Federal income tax purposes as a
result of such deposits, defeasance and discharge and will be subject
to Federal income tax on the same amount and in the same manner and at
the same times, as would have been the case if such deposit, defeasance
and discharge had not occurred; and
(i) the Company has delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that all conditions
precedent relating to the
57
defeasance contemplated by this Section have been complied with.
SECTION 4.04. Defeasance of Certain Obligations. The Company
may omit to comply with any term, provision or condition set forth in Sections
10.02 and 10.03 and any such omission with respect to Sections 10.02 and 10.03
shall not be an Event of Default; provided that the following conditions have
been satisfied:
(a) with reference to this Section 4.04, the Company has
deposited or caused to be irrevocably deposited with the Trustee (or
another trustee satisfying the requirements of Section 6.09) as trust
funds in trust, specifically pledged as security for, and dedicated
solely to, the benefit of the Holders of the Securities, (i) money in
an amount, or (ii) U.S. Government Obligations which through the
payment of interest and principal in respect thereof in accordance with
their terms will provide not later than one day before the Stated
Maturity (a) money in an amount, or (iii) a combination thereof,
sufficient, in the opinion of a nationally recognized firm of
independent public accountants expressed in a written certification
thereof delivered to the Trustee, to pay and discharge the principal of
(and premium, if any) and each installment of principal (and premium,
if any) and interest on the Outstanding Securities on the Stated
Maturity of such principal or installments of principal and interest;
(b) such deposit shall not cause the Trustee to have a
conflicting interest as defined in Section 6.08 and for purposes of the
Trust Indenture Act;
(c) such deposit will not result in a breach or violation of,
or constitute a default under, this Indenture or any other agreement or
instrument to which the Company is a party or by which it is bound;
(d) no Event of Default or event which with notice or lapse of
time would become an Event of Default shall have occurred and be
continuing on the date of such deposit;
(e) the Company has delivered to the Trustee an Opinion of
Counsel to the effect that Holders will not recognize income, gain or
loss for Federal income tax
58
purposes as a result of such deposit and defeasance of certain
obligations and will be subject to Federal income tax on the same
amount and in the same manner and at the same times as would have been
the case if such deposit and defeasance had not occurred; and
(f) the Company has delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that all conditions
precedent herein provided for relating to the defeasance contemplated
in this Section have been complied with.
ARTICLE V
Remedies
SECTION 5.01. Events of Default. "Event of Default" wherever
used herein, means any one of the following events (whatever the reason for such
Event of Default and whether it shall be voluntary or involuntary or be effected
by operation of law or pursuant to any judgment, decree or order of any court or
any order, sale or regulation of any administrative or governmental body):
(a) default 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
(b) default in the payment of the principal of (or
premium, if any, on) any Security at its Maturity; or
(c) default in the performance, or breach, of any covenant or
warranty of the Company in this Indenture (other than a covenant or
warranty a default in whose performance or whose breach is elsewhere in
this Section specifically dealt with), and continuance of such default
or breach for a period of 60 days after there has been given, by
registered or certified mail, to the Company by the Trustee or to the
Company and the Trustee by the Holders of at least 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
(d) a default under any indenture or instrument
under which the Company or any Restricted Subsidiary
59
shall have outstanding or shall have guaranteed the payment of at least
$10,000,000 aggregate principal amount of indebtedness for money
borrowed (other than this Indenture or any Debt Security) shall happen
and be continuing which default (i) is caused by a failure to pay the
principal of or premium, if any, or interest on such indebtedness prior
to the expiration of the grace period provided in such indebtedness on
the date of such default or (ii) results in the acceleration of such
indebtedness so that the same shall be or become due and payable prior
to the date on which the same would otherwise have become due and
payable, and such acceleration shall not be rescinded or annulled
within 10 days after notice thereof 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 Securities at the time Outstanding; provided,
however, that if such default under such indenture or instrument shall
be remedied or cured by the Company or waived by the Holders of such
indebtedness, then, unless the Securities shall have been accelerated
as provided herein, the Event of Default hereunder by reason thereof
shall be deemed likewise to have been thereupon remedied, cured or
waived without further action upon the part of either the Trustee or
any Holders of the Securities; or
(e) the entry by a court having jurisdiction in the premises
of (i) a decree or order for relief in respect of the Company in an
involuntary case or proceeding under any applicable Federal or state
bankruptcy, insolvency, reorganization or other similar law or (ii) a
decree or order adjudging the Company a bankrupt or insolvent, or
approving as properly filed a petition seeking reorganization,
arrangement, adjustment or composition of or in respect to the Company
under any applicable Federal or state law, or appointing a custodian,
receiver, liquidator, assignee, trustee, sequestrator or other similar
official of the Company or of any substantial part of its property, or
ordering the winding up or liquidation of its affairs, and the
continuance of any such decree or order for relief or any such other
decree or order unstayed and in effect for a period of 60 consecutive
days; or
(f) the commencement by the Company for a voluntary case or
proceeding under any applicable
60
Federal or state bankruptcy, insolvency, reorganization or other
similar law or of any other case or proceeding to be adjudicated a
bankrupt or insolvent, or the consent by it to the entry of a decree or
order for relief in respect of the Company in an involuntary case or
proceeding under any applicable Federal or state bankruptcy,
insolvency, reorganization or other similar law or to the commencement
of any bankruptcy or insolvency case or proceeding against it, or the
filing by it of a petition or answer or consent seeking reorganization
or relief under any applicable Federal or state law, or the consent by
it to the filing of such petition or to the appointment of or taking
possession by a custodian, receiver, liquidator, assignee, trustee,
sequestrator or other similar official of the Company or of any
substantial part of its property, or the making by it of an assignment
for the benefit of creditors, or the admission by it in writing of its
inability to pay its debts generally as they become due, or the taking
of corporate action by the Company in furtherance of such action.
The term "Bankruptcy Law" means title 11, U.S. Code or any
similar Federal or state law for the relief of debtors. The term "Custodian"
means any receiver, trustee, assignee, liquidator or similar official under any
Bankruptcy Law.
A default under clause (d) is not an Event of Default with
respect to the Securities until the Trustee notifies the Company in writing, or
the Holders of at least 25% in principal amount of the then outstanding
Securities notify the Company and the Trustee in writing, of the default and the
Company does not cure the default within 60 days after receipt of such notice.
The written notice must specify the default, demand that it be remedied and
state that the notice is a "Notice of Default".
SECTION 5.02. Acceleration of Maturity; Rescission and
Annulment. If an Event of Default occurs and is continuing, then and in every
such case the Trustee or the Holders of not less than 25% in aggregate principal
amount of the Outstanding Securities may declare the principal amount of all of
the Securities to be due and payable immediately, by a notice in writing to the
Company (and to the Trustee if given by Holders), and upon any such declaration
such principal amount (or specified portion thereof) shall become immediately
due and payable.
61
At any time after such a declaration of acceleration has been
made and before a judgment or decree for payment of the money due has been
obtained by the Trustee as hereinafter in this Article provided, the Holders of
a majority in aggregate 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
(a) the Company has paid or deposit with the
Trustee a sum sufficient to pay
(i) all overdue interest on all Securities,
(ii) the principal of (and premium, if any, on) any
Securities which have become due otherwise than by such
declaration of acceleration and interest thereon at the rate
or rates prescribed therefor in such Securities,
(iii) to the extent that payment of such interest is
lawful, interest upon overdue interest at the rate or rates
prescribed therefor in such Securities, and
(iv) all sums paid or advanced by the Trustee
hereunder and the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and
counsel, and any other amounts due the Trustee under
Section 6.07, and
(b) all Events of Default, other than the nonpayment of the
principal of Securities which have become due solely by such
declaration of acceleration, have been cured or waived as provided in
Section 5.13.
No such rescission shall affect any subsequent default or impair any right
consequent thereon.
SECTION 5.03. Collection of Indebtedness and Suits for
Enforcement by Trustee. The Company covenants that if
(a) default is made in the payment of any interest on any
Security when such interest becomes due and payable and such default
continues for a period of 30 days, or
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(b) default is made in the payment of the
principal of (or premium, if any, on) any Securities at
the Maturity thereof,
the Company will, upon demand of the Trustee, pay to it, for the benefit of the
Holders of such Security, the whole amount then due and payable on such Security
for principal (and premium, if any) and interest and, to the extent that payment
of such interest shall be legally enforceable, interest on any overdue principal
(and premium, if any) and on any overdue interest at the rate or rates
prescribed therefor in such Security, and, in addition thereto, such further
amount as shall be sufficient to cover the costs and expenses of collection,
including the reasonable compensation, expenses, disbursements and advances of
the Trustee, its agents and counsel.
If the Company fails to pay such amounts forthwith upon such
demand, the Trustee, in its own name and as trustee of an express trust, may
institute a judicial proceeding for the collection of the sums so due and
unpaid, may prosecute such proceeding to judgment or final decree and may
enforce the same against the Company or any other obligor upon such Security and
collect the moneys adjudged or decreed to be payable in the manner provided by
law out of the property of the Company or any other obligor upon such Security,
wherever situated.
If an Event of Default occurs and is continuing, the Trustee
may in its discretion proceed to protect and enforce its rights and the rights
of the Holders of Securities by such appropriate judicial proceedings as the
Trustee shall deem most effectual to protect and enforce any such rights,
whether for the specific enforcement of any covenant or agreement in this
Indenture or in aid of the exercise of any power granted herein, or to enforce
any other proper remedy.
SECTION 5.04. Trustee May File Proofs of Claim. In case of the
pendency of any receivership, insolvency, liquidation, bankruptcy,
reorganization, arrangement, adjustment, composition or other judicial
proceeding relative to the Company or any other obligor upon the Securities or
the property of the Company or of such other obligor or their creditors, the
Trustee (irrespective of whether the principal of the Securities shall then be
due and payable as therein expressed or by declaration or otherwise and
irrespective of whether the Trustee shall have
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made any demand on the Company for the payment of overdue principal or interest)
shall be entitled and empowered, by intervention in such proceeding or
otherwise,
(i) to file and prove a claim for the whole amount of
principal (and premium, if any) and interest owing and unpaid in
respect of the Securities and to file such other papers or documents as
may be necessary or advisable in order to have the claims of the
Trustee (including any claim for the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel, and
any other amounts due the Trustee under Section 6.07) and of the
Holders allowed in such judicial proceeding, and
(ii) to collect and receive any moneys or other
property payable or deliverable on any such claims and
to distribute the same;
and any custodian, receiver, assignee, trustee, liquidator, sequestrator or
other similar official in any such judicial proceeding is hereby authorized by
each Holder to make such payments to the Trustee and, in the event that the
Trustee shall consent to the making of such payments directly to the Holders, to
pay to the Trustee any amount due it for the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel, and any other
amounts due the Trustee under Section 6.07.
Nothing herein contained shall be deemed to authorize the
Trustee to authorize or consent to or accept or adopt on behalf of any Holder
any plan of reorganization, arrangement, adjustment or composition affecting the
Securities or the rights of any Holder thereof or to authorize the Trustee to
vote in respect of the claim of any Holder in any such proceeding; provided,
however, that the Trustee may, on behalf of the Holders, vote for the election
of a trustee in bankruptcy or similar official and be a member of a creditors'
or other similar committee.
SECTION 5.05. Trustee May Enforce Claims Without Possession of
Securities. All rights of action and claims under this Indenture or the
Securities may be prosecuted and enforced by the Trustee without the possession
of any of the Securities or the production thereof in any proceeding relating
thereto, and any such proceeding instituted by the Trustee shall be brought in
its own name as trustee of an express trust, and any recovery of judgment shall,
after
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provision for the payment of the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel, and for any
other amounts due the Trustee under Section 6.07, be for the ratable benefit of
the Holders of the Securities in respect of which such judgment has been
recovered.
SECTION 5.06. Application of Money Collected. Any money
collected by the Trustee pursuant to this Article shall be applied in the
following order, or at the date or dates of fixed by the Trustee and, in case of
the distribution of such money on account of principal (or premium, if any) or
interest, upon presentation of the Securities and the notation thereon of the
payment if only partially paid and upon surrender thereof if fully paid:
FIRST: To the payment of all amounts due the Trustee under
Section 6.07; and
SECOND: To the payment of the amounts then due and unpaid for
principal of (and premium, if any) and interest on the Securities in
respect of which or for the benefit of which such money has been
collected, ratably, without preference or priority of any kind,
according to the amounts due and payable on such Securities for
principal (and premium, if any) and interest, respectively; and
THIRD: The balance, if any, to the Person or Persons entitled
thereto.
SECTION 5.07. Limitation on Suits. No Holder of any Security
shall have any right to institute any proceeding, judicial or otherwise, with
respect to this Indenture, or for the appointment of a receiver or trustee, or
for any other remedy hereunder, unless
(1) such Holder has previously given written notice to the
Trustee of a continuing Event of Default;
(2) the Holders of not less than 25% in principal amount of
the Outstanding Securities shall have made written request to the
Trustee to institute proceedings in respect of such Event of Default in
its own name as Trustee hereunder;
(3) such Holder or Holders have offered to the Trustee
reasonable indemnity against the costs,
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expenses and liabilities to be incurred in compliance with such
request;
(4) the Trustee, for 60 days after its receipt of such notice,
request and offer of indemnity, has failed to institute any such
proceeding; and
(5) no direction inconsistent with such written request has
been given to the Trustee during such 60-day period by the Holders of
a majority in principal amount of the Outstanding Securities;
it being understood and intended that no one or more of such Holders shall have
any right in any manner whatever by virtue of, or by availing of, any provision
of this Indenture to affect, disturb or prejudice the rights of any other of
such Holders, or to obtain or to seek to obtain priority or preference over any
other of such Holders or to enforce any right under this Indenture, except in
the manner herein provided and for the equal and ratable benefit of all of such
Holders.
SECTION 5.08. Unconditional Right of Holders to Receive
Principal, Premium and Interest. Notwithstanding any other provision in this
Indenture, the Holder of any Security shall have the right, which is absolute
and unconditional, to receive payment of the principal of (and premium, if any)
and (subject to Section 3.07) interest on such Security on the Stated Maturity
or Maturities expressed in such Security and to institute suit for the
enforcement of any such payment, and such rights shall not be impaired without
the consent of such Holder.
SECTION 5.09. Restoration of Rights and Remedies. If the
Trustee or any Holder has instituted any proceeding to enforce any right or
remedy under this Indenture and such proceeding has been discontinued or
abandoned for any reason, or has been determined adversely to the Trustee or to
such Holder, then, and in every such case, subject to any determination in such
proceeding, the Company, the Trustee and the Holders shall be restored severally
and respectively to their former positions hereunder and thereafter all rights
and remedies of the Trustee and the Holders shall continue as though no such
proceeding had been instituted.
SECTION 5.10. Rights and Remedies Cumulative.
Except as otherwise provided with respect to the replacement
or payment of mutilated, destroyed, lost or stolen
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Securities in the last paragraph of Section 3.06, no right or remedy herein
conferred upon or reserved to the Trustee or to the Holders is intended to be
exclusive of any other right or remedy, and every right and remedy shall, to the
extent permitted by law, be cumulative and in addition to every other right and
remedy given hereunder or now or hereafter existing at law or in equity or
otherwise. The assertion or employment of any right or remedy hereunder, or
otherwise, shall not prevent the concurrent assertion or employment of any other
appropriate right or remedy.
SECTION 5.11. Delay or Omission Not Waiver. No delay or
omission of the Trustee or of any Holder of any Securities to exercise any right
or remedy accruing upon any Event of Default shall impair any such right or
remedy or constitute a waiver of any such Event of Default or an acquiescence
therein. Every right and remedy given by this Article or by law to the Trustee
or to the Holders may be exercised from time to time, and as often as may be
deemed expedient, by the Trustee or by the Holders, as the case may be.
SECTION 5.12. Control by Holders. The Holders of a majority in
aggregate principal amount of the Outstanding Securities shall have the right to
direct the time, method and place of conducting any proceeding for any remedy
available to the Trustee, or exercising any trust or power conferred on the
Trustee, with respect to the Securities, provided that
(1) such direction shall not be in conflict with
any rule of law or with this Indenture, and
(2) the Trustee may take any other action deemed proper by the
Trustee which is not inconsistent with such direction.
SECTION 5.13. Waiver of Past Defaults. The Holders of not less
than a majority in aggregate principal amount of the Outstanding Securities may,
on behalf of the Holders of all the Securities, waive any past default hereunder
and its consequences, except a default
(1) in the payment of the principal of (or
premium, if any) or interest on any Security, or
(2) in respect of a covenant or provision hereof
which under Article IX cannot be modified or amended
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without the consent of the Holder of each Outstanding Security
affected.
The Company may, but shall not be obligated to, fix a record
date for the purpose of determining the Persons entitled to waive any past
default hereunder. If a record date is fixed, the Holders on such record date,
or their duly designated proxies, and only such Persons, shall be entitled to
waive any default hereunder, whether or not such Holders remain Holders after
such record date; provided that unless such majority in principal amount shall
have waived such default prior to the date which is 120 days after such record
date, any such waiver of such default previously given shall automatically and
without further action by any Holder be canceled and of no further effect.
Upon any such waiver, such default shall cease to exist, and
any Event of Default arising therefrom shall be deemed to have been cured, for
every purpose of this Indenture; but no such waiver shall extend to any
subsequent or other default or impair any right consequent thereon.
SECTION 5.14. Undertaking for Costs. All parties to this
Indenture agree, and each Holder of any Security by such Holder's acceptance
thereof shall be deemed to have agreed, that any court may in its discretion
require, in any suit for the enforcement of any right or remedy under this
Indenture, or in any suit against the Trustee for any action taken, suffered or
omitted by it as Trustee, the filing by any party litigant in such suit of an
undertaking to pay the costs of such suit, and that such court may in its
discretion assess reasonable costs, including reasonable attorneys' fees,
against any party litigant in such suit, having due regard to the merits and
good faith of the claims or defenses made by such party litigant; provided,
however, that the provisions of this Section shall not apply to any suit
instituted by the Company, to any suit instituted by the Trustee, to any suit
instituted by any Holder, or group of Holders, holding in the aggregate more
than 10% in principal amount of the Outstanding Securities, or to any suit
instituted by any Holder for the enforcement of the payment of the principal of
(or premium, if any) or interest on any Security on or after the Stated Maturity
or Maturities expressed in such Security.
SECTION 5.15. Waiver of Stay or Extension Laws. The Company
covenants (to the extent that it may lawfully do so) that it will not at any
time insist upon, or plead, or
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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 covenants that it will not hinder, delay or impede
the execution of any power herein granted to the Trustee, but will suffer and
permit the execution of every such power as though no such law had been enacted.
ARTICLE VI
The Trustee
SECTION 6.01. Certain Duties and Responsibilities. The
provisions of TIA Section 3.15 shall apply to the Trustee.
SECTION 6.02. Notice of Defaults. Within 90 days after the
occurrence of any default hereunder, the Trustee shall transmit by mail to all
Holders of Securities, as their names and addresses appear in the Security
Register, notice of such default hereunder known to the Trustee, unless such
default shall have been cured or waived; provided, however, that, except in the
case of a default in the payment of the principal of (or premium, if any) or
interest on any Security, the Trustee shall be protected in withholding such
notice if and so long as the board of directors, the executive committee or a
trust committee of directors or Responsible Officers of the Trustee in good
faith determine that the withholding of such notice is in the interest of the
Holders of Securities; and provided, further, that in the case of any default of
the character specified in Section 5.01(c), no such notice to Holders shall be
given until at least 30 days after the occurrence thereof. For the purpose of
this Section, the term "default" means any event which is, or after notice or
lapse of time or both would become, an Event of Default.
SECTION 6.03. Certain Rights of Trustee. Subject to the
provisions of TIA Section 3.15(a) through 315(d):
(a) The Trustee may rely and shall be protected in acting or
refraining from acting upon any resolution, certificate, statement, instrument,
opinion, report, notice, request, direction, consent, order, bond, debenture,
note,
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other evidence of indebtedness or other paper or document believed by it to be
genuine and to have been signed or presented by the proper party or parties.
(b) Any instruction, request or direction of the Company
mentioned herein shall be sufficiently evidenced by a Company Request or Company
Order or as otherwise expressly provided herein and any resolution of the Board
of Directors may be sufficiently evidenced by a Board Resolution.
(c) Whenever in the administration of this Indenture the
Trustee shall deem it desirable that a matter be proved or established prior to
taking, suffering or omitting any action hereunder, the Trustee (unless other
evidence be herein specifically prescribed) may, in the absence of bad faith on
its part, rely upon an Officers' Certificate.
(d) Before the Trustee acts or refrains from acting, the
Trustee may consult with counsel of its selection and the advice of such counsel
or any Opinion of Counsel shall be full and complete authorization and
protection in respect of any action taken, suffered or omitted by it hereunder
in good faith and in reliance thereon.
(e) The Trustee shall be under no obligation to exercise any
of the rights or powers vested in it by this Indenture at the request or
direction of any of the Holders pursuant to this Indenture, unless such Holders
shall have offered to the Trustee reasonable security or indemnity against the
costs, expenses and liabilities which might be incurred by it in compliance with
such request or direction.
(f) The Trustee shall not be bound to make any investigation
into the facts or matters stated in any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent, order, bond,
debenture, note, other evidence of indebtedness or other paper or document, but
the Trustee, in its discretion, may make such further inquiry or investigation
into such facts or matters as it may see fit, and, if the Trustee shall
determine to make such further inquiry or investigation, it shall be entitled to
examine the books, records and premises of the Company, personally or by agent
or attorney at the sole cost of the Company and shall incur no liability of any
kind by reason of such inquiry or investigation.
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(g) The Trustee may execute any of the trusts or powers
hereunder or perform any duties hereunder either directly or by or through
agents or attorneys and the Trustee shall not be responsible for any misconduct
or negligence on the part of any agent or attorney appointed with due care by it
hereunder.
(h) The Trustee shall not be liable for any action taken,
suffered or omitted by it in good faith and believed by it to be authorized or
within the discretion, rights or powers conferred upon it by this Indenture.
(i) The Trustee shall not be required to expend or risk its
own funds or otherwise incur any financial liability in the performance of any
of its duties hereunder or in the exercise of any of its rights or powers if it
shall have reasonable grounds for believing that repayment of such funds or
adequate indemnity against such risk or liability is not reasonably assured to
it.
(j) Except with respect to Section 10.01 herein, the Trustee
shall have no duty to inquire as to the performance of the Company's covenants
in Article IV hereof. In addition, the Trustee shall not be deemed to have
knowledge of any Event of Default except (i) any Event of Default occurring
pursuant to Sections 5.01(1), 5.01(2) and 10.01 herein or (ii) any Event of
Default of which the Trustee shall have received written notification or
obtained actual knowledge.
SECTION 6.04. Not Responsible for Recitals or Issuance of
Securities. The recitals contained herein and in the Securities, except the
Trustee's certificates of authentication, shall be taken as the statements of
the Company, and neither the Trustee nor any Authenticating Agent assumes any
responsibility for their correctness. The Trustee makes no representations as to
the validity or sufficiency of this Indenture or of the Securities, except that
the Trustee represents that it is duly authorized to execute and deliver this
Indenture, authenticate the Securities and perform its obligations hereunder and
that the statements made by it in a Statement of Eligibility on Form T-1, when
supplied to the Company, will be true and accurate subject to the qualifications
set forth therein. The Trustee or any Authenticating Agent shall not be
accountable for the use or application by the Company of Securities or the
proceeds thereof.
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SECTION 6.05. May Hold Securities. The Trustee, any
Authenticating Agent, any Paying Agent, any Security Registrar or any other
agent of the Company, in its individual or any other capacity, may become the
owner or pledgee of Securities and, subject to TIA Sections 3.10(b) and 3.11,
may otherwise deal with the Company with the same rights it would have if it
were not Trustee, Authenticating Agent, Paying Agent, Security Registrar or such
other agent.
SECTION 6.06. Money Held in Trust. Money held by the Trustee
in trust hereunder need not be segregated from other funds except to the extent
required by law. The Trustee shall be under no liability for interest on any
money received by it hereunder except as otherwise agreed to in writing by the
Company and the Trustee.
SECTION 6.07. Compensation and Reimbursement.
The Company agrees
(1) to pay to the Trustee from time to time, as the Company
and the Trustee shall from time to time agree in writing, compensation
for all services rendered by it hereunder (which compensation shall not
be limited by any provision of law in regard to the compensation of a
trustee of an express trust);
(2) except as otherwise expressly provided herein, to
reimburse the Trustee upon its request for all reasonable expenses,
including taxes (other than taxes based upon, measured by or determined
by the income of the Trustee), disbursements and advances incurred or
made by the Trustee in accordance with any provision of this Indenture
(including the reasonable compensation and the expenses and
disbursements of its agents and counsel), except any such expense,
disbursement or advance as may be attributable to its negligence or bad
faith; and
(3) to indemnify the Trustee (and its agents) for, and to hold
it harmless against, any loss, liability or expense incurred without
negligence or bad faith on its part, arising out of or in connection
with the acceptance or administration of the trust or trusts hereunder,
including the costs and expenses of defending itself against any claim
or liability in connection with the exercise or performance of any of
its powers or duties hereunder.
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The obligations of the Company under this Section 6.07 to
compensate and indemnify the Trustee and to pay or reimburse the Trustee for
expenses, disbursements and advances shall constitute additional indebtedness
hereunder and shall survive the satisfaction and discharge of this Indenture.
Such additional indebtedness shall be a senior claim to that of the Securities
upon all property and funds held or collected by the Trustee as such, except
funds held in trust for the payment of principal of (and premium, if any) or
interest on particular Securities, and the Securities are hereby subordinated to
each senior claim. When the Trustee incurs expenses or renders services in
connection with an Event of Default specified in Article V hereof, the expenses
(including reasonable fees and expenses of counsel) and the compensation for the
service in connection therewith are intended to constitute expenses of
administration under any applicable bankruptcy law.
The Trustee shall give the Company notice of any claim or
liability for which the Trustee might be entitled to indemnification under
subparagraph (3) of this Section 6.07 within a reasonable amount of time after a
trust officer of the Trustee becomes aware of such claim or liability.
SECTION 6.08. Disqualification; Conflicting Interests. The
provisions of TIA Section 3.10(b) shall apply to the Trustee.
SECTION 6.09. Corporate Trustee Required; Eligibility. There
shall at all times be a Trustee hereunder which shall be eligible to act under
TIA Section 3.10(a)(1) and shall have a combined capital and surplus of at least
$100,000,000 and subject to supervision or examination by Federal, state or
District of Columbia authority. The Trustee hereby represents and warrants that
it is currently in compliance and at all times will remain in compliance with
the requirements of this Section 6.09. If such Corporation publishes reports of
condition at least annually, pursuant to law or to the requirements of said
supervising or examining authority, then for the purposes of this Section, the
combined capital and surplus of such Corporation shall be deemed to be its
combined capital and surplus as set forth in its most recent report of condition
so published. If at any time the Trustee shall cease to be eligible in
accordance with the provisions of this Section, it shall resign immediately in
the manner and with the effect hereinafter specified in this Article. Neither
the
73
Company, nor any Person directly or indirectly controlling, controlled by or
under common control with the Company, shall act as Trustee hereunder.
SECTION 6.10. Resignation and Removal; Appointment of
Successor. (a) No resignation or removal of the Trustee and no appointment of a
successor Trustee pursuant to this Article shall become effective until the
acceptance of appointment by the successor Trustee in accordance with the
applicable requirements of Section 6.11.
(b) The Trustee may resign at any time by giving written
notice thereof to the Company. If the instrument of acceptance by a successor
Trustee required by Section 6.11 shall not have been delivered to the Trustee
within 30 days after the giving of such notice of resignation, the resigning
Trustee may petition any court of competent jurisdiction for the appointment of
a successor Trustee.
(c) The Trustee may be removed at any time by Act of the
Holders of a majority in principal amount of the Outstanding Securities,
delivered to the Trustee and to the Company.
(d) If at any time:
(1) the Trustee shall fail to comply with TIA Section 3.10(b)
after written request therefor by the Company or by any Holder who has
been a bona fide Holder of a Security for at least six months, or
(2) the Trustee shall cease to be eligible under Section 6.09
and shall fail to resign after written request therefor by the Company
or by any such Holder, or
(3) the Trustee shall become incapable of acting or shall be
adjudged a bankrupt or insolvent or a receiver of the Trustee or of its
property shall be appointed or any public officer shall take charge or
control of rehabilitation, conservation or liquidation, or
(4) the Trustee shall commence a voluntary case under the
Federal bankruptcy laws, as now or thereafter constituted, or any other
applicable Federal or state bankruptcy, insolvency or similar law or
shall consent to the appointment of or taking possession by a
74
receiver, custodian, liquidator, assignee, trustee, sequestrator (or
other similar official) of the Trustee or its property or affairs, or
shall make an assignment for the benefit of creditors, or shall admit
in writing its inability to pay its debts generally as they become due,
or shall take corporate action in furtherance of any such action,
then, in any such case, (i) the Company by a Board Resolution may remove the
Trustee with respect to all Securities, or (ii) subject to Section 5.14, any
Holder who has been a bona fide Holder of a Security for at least six months
may, on behalf of himself and all others similarly situated, petition any court
of competent jurisdiction for the removal of the Trustee with respect to all
Securities and the appointment of a successor Trustee or Trustees.
(e) If the Trustee shall resign, be removed or become
incapable of acting, or if a vacancy shall occur in the office of Trustee for
any cause, the Company, by a Board Resolution, shall promptly appoint a
successor Trustee or Trustees and shall comply with the applicable requirements
of Section 6.11. If the instrument of acceptance by a successor Trustee required
by Section 6.11 shall not have been delivered within 30 days after such
resignation, removal or incapability, or the occurrence of such vacancy, the
resigning, removed or incapacitated Trustee may petition any court of competent
jurisdiction for the appointment of a successor Trustee. If, within one year
after such resignation, removal or incapability, or the occurrence of such
vacancy, a successor Trustee shall be appointed by Act of the Holders of a
majority in principal amount of the Outstanding Securities delivered to the
Company and the retiring Trustee, the successor Trustee so appointed shall,
forthwith upon its acceptance of such appointment in accordance with the
applicable requirements of Section 6.11, become the successor Trustee and to
that extent supersede the successor Trustee appointed by the Company. If no
successor Trustee shall have been so appointed by the Company or the Holders and
accepted appointment in the manner required by Section 6.11, any Holder who has
been a bona fide Holder of a Security for at least six months may, on behalf of
himself and all others similarly situated, petition any court of competent
jurisdiction for the appointment of a successor Trustee.
(f) The Company shall give notice of each resignation and
each removal of the Trustee and each
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appointment of a successor Trustee by mailing written notice of such event by
first-class mail, postage prepaid, to all Holders of Securities as their names
and addresses appear in the Security Register. Each notice shall include the
name of the successor Trustee with respect to the Securities of such series and
the address of its Corporate Trust Office.
SECTION 6.11. Acceptance of Appointment by Successor. (a) In
case of the appointment hereunder of a successor Trustee with respect to all
Securities, every such successor Trustee so appointed shall execute, acknowledge
and deliver to the Company and to the retiring Trustee an instrument accepting
such appointment, and thereupon the resignation or removal of the retiring
Trustee shall become effective and such successor Trustee, without any further
act, deed or conveyance, shall become vested with all the rights, powers, trusts
and duties of the retiring Trustee; but, on the request of the Company or the
successor Trustee, such retiring Trustee shall, upon payment of its charges,
execute and deliver an instrument transferring to such successor Trustee all the
rights, powers and trusts of the retiring Trustee and shall duly assign,
transfer and deliver to such successor Trustee all property and money held by
such retiring Trustee hereunder.
(b) Upon request of any such successor Trustee, the Company
shall execute any and all instruments for more fully and certainly vesting in
and confirming to such successor Trustee all such rights, powers and trusts
referred to in paragraph (a) and (b) of this Section, as the case may be.
(c) No successor Trustee shall accept its appointment unless
at the time of such acceptance such successor Trustee shall be qualified and
eligible under this Article.
SECTION 6.12. Merger, Conversion, Consolidation or Succession
to Business. Any Corporation into which the Trustee may be merged or converted
or with which it may be consolidated, or any Corporation resulting from any
merger, conversion or consolidation to which the Trustee shall be a party, or
any Corporation succeeding to all or substantially all the corporate trust
business of the Trustee, shall be the successor of the Trustee hereunder,
provided such Corporation shall be otherwise qualified and eligible under this
Article, without the execution or filing of any paper or any further act on the
part of any of the parties hereto.
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In case any Securities shall have been authenticated, but not delivered, by the
Trustee then in office, any successor by merger, conversion or consolidation to
such authenticating Trustee may adopt such authentication and make available for
delivery the Securities so authenticated with the same effect as if such
successor Trustee had itself authenticated such Securities; in case any of the
Securities shall not have been authenticated by the Trustee then in office, any
successor by merger, conversion or consolidation to such Trustee may
authenticate such Securities either in the name of such predecessor hereunder or
in the name of the successor 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; provided,
however, that the right to adopt the certificate of authentication of any
predecessor Trustee or to authenticate Securities in the name of any predecessor
Trustee shall apply only to its successor or successors by merger, conversion or
consolidation.
Section 6.13. Preferential Collection of Claims Against
Company. The Trustee shall comply with TIA Section 311(a). A Trustee which has
resigned or been removed is subject to TIA Section 311(a) to the extent
indicated therein.
ARTICLE VII
Holders' Lists and Reports by Trustee and Company
SECTION 7.01. Company To Furnish Trustee Names and Addresses
of Holders. If the Trustee is not acting as Security Registrar for the
Securities, the Company will furnish or cause to be furnished to the Trustee:
(a) at intervals of no more than six months commencing after
the Issue Date, a list, in such form as the Trustee may reasonably
require, of the names and addresses of the Holders as of a date not
more than 15 days prior to the time such information is furnished, and
(b) at such other times as the Trustee may request in writing,
within 30 days after the receipt by the Company of any such request, a
list of similar form and
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content as of a date not more than 15 days prior to the time such list
is furnished.
SECTION 7.02. Preservation of Information; Communication to
Holders. (a) The Trustee shall preserve, in as current a form as is reasonably
practicable, the names and addresses of Holders contained in the most recent
list furnished to the Trustee as provided in Section 7.01 and the names and
addresses of Holders received by the Trustee in its capacity as Security
Registrar. The Trustee may destroy any list furnished to it as provided in
Section 7.01 upon receipt of a new list so furnished.
(b) The rights of Holders to communicate with other Holders
with respect to their rights under this Indenture or under the Securities, and
the corresponding rights and privileges of the Trustee, shall be as provided by
TIA Section 312(b).
(c) Every Holder of Securities, by receiving and holding the
same, agrees with the Company and the Trustee that neither the Company nor the
Trustee nor any agent of either of them shall be held accountable by reason of
the disclosure of any such information as to the names and addresses of the
Holders in accordance with Section 7.02(b), regardless of the source from which
such information was derived, and that the Trustee shall not be held accountable
by reason of mailing any material pursuant to a request made under Section
7.02(b).
SECTION 7.03. Reports by Trustee. Within 60 days after
December 31 of each year commencing with December 31, 1997, the Trustee shall
transmit by mail to all Holders of Securities as provided in TIA Section 313(c)
a brief report dated as of such December 31 if required by TIA Section 313(a). A
copy of each such report shall, at the time of such transmission to Holders, be
filed by the Trustee with each stock exchange upon which any Securities are
listed, with the Commission and with the Company. The Company will notify the
Trustee when any Securities are listed on any stock exchange.
SECTION 7.04. Reports by Company. The Company
shall:
(1) file with the Trustee, within 15 days after the Company is
required to file the same with the Commission, copies of the annual
reports and of the
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information, documents and other reports (or copies of such portions of
any of the foregoing as the Commission may from time to time by rules
and regulations prescribe) which the Company may be required to file
with the Commission pursuant to Section 13 or Section 15(d) of the
Securities Exchange Act of 1934; or, if the Company is not required to
file information, documents or reports pursuant to either of said
Sections, then it shall file with the Trustee and the Commission, in
accordance with rules and regulations prescribed from time to time by
the Commission, such of the supplementary and periodic information,
documents and reports which may be required pursuant to Section 13 of
the Securities Exchange Act of 1934 in respect of a security listed and
registered on a national securities exchange as may be prescribed from
time to time in such rules and regulations; notwithstanding anything to
the contrary herein, the Trustee shall have no duty to review such
documents for the purposes of determining compliance with any provision
of this Indenture;
(2) file with the Trustee and the Commission, in accordance
with rules and regulations prescribed from time to time by the
Commission, such additional information, documents and reports with
respect to compliance by the Company with the conditions and covenants
of this Indenture as may be required from time to time by such rules
and regulations;
(3) transmit by mail to all Holders, as their names and
addresses appear in the Security Register, within 30 days after the
filing thereof with the Trustee, such summaries of any information,
documents and reports required to be filed by the Company pursuant to
paragraphs (1) and (2) of this Section as may be required by rules and
regulations prescribed from time to time by the Commission; and
(4) furnish to the Trustee the Officers' Certificate provided
for in Section 10.09.
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ARTICLE VIII
Consolidation, Merger, Conveyance, Transfer of Lease
SECTION 8.01. Company May Consolidate, Etc., Only On Certain
Terms. The Company shall not consolidate with or merge into any other Person or
convey, transfer or lease its properties and assets substantially as an entirety
to any Person and the Company shall not permit any person to consolidate with or
merge into the Company or convey transfer or lease all or substantially all of
its properties and assets to the Company, unless:
(1) the Person formed by such consolidation or into which the
Company is merged or the Person which acquires by conveyance or
transfer, or which leases, the properties and assets of the Company
substantially as an entirety shall be a Corporation, partnership 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 premium,
if any) and interest on all the Securities and the performance or
observance of every covenant of this Indenture on the part of the
Company to be performed or observed;
(2) immediately after giving effect to such transaction, no
Event of Default, and no event which, after notice or lapse of time or
both, would become an Event of Default, shall have happened and be
continuing;
(3) if, as a result of any such consolidation or merger or
such conveyance, transfer or lease, properties or assets of the Company
would become subject to a mortgage, pledge, lien, security interest or
other encumbrance which would not be permitted by this Indenture, the
Company or such successor Person, as the case may be, shall take such
steps as shall be necessary to effectively secure the Securities
equally and ratably with (or prior to) all indebtedness secured
thereby; and
(4) the Company has delivered to the Trustee an
Officers' Certificate and an Opinion of Counsel, each
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stating that such consolidation, merger, conveyance, transfer or lease
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 8.02. Successor Substituted. Upon any consolidation of
the Company with, or merger by the Company into, any other Person or conveyance,
transfer or lease of the properties and assets of the Company substantially as
an entirety in accordance with Section 8.01, the successor Person formed by such
consolidation or into which the Company is merged or to which such conveyance,
transfer or lease is made shall succeed to, and be substituted for, and may
exercise every right and power of, the Company under this Indenture with the
same effect as if such successor Person had been named as the Company herein,
and thereafter, except in the case of a lease, the predecessor Person shall be
relieved of all obligations and covenants under this Indenture and the
Securities.
ARTICLE IX
Supplemental Indentures
SECTION 9.01. Supplemental Indentures Without Consent of
Holders. Without the consent of any Holders, the Company, at any time and from
time to time, may enter into one or more indentures supplemental hereto, in form
satisfactory to the Trustee, for any of the following purposes:
(1) to evidence the succession of another Person
to the Company and the assumption by any such successor
of the covenants of the Company herein and in the
Securities; or
(2) 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; or
(3) to add any additional Events of Default; or
(4) to add to or change any of the provisions of
this Indenture to such extent as shall be necessary to
permit or facilitate the issuance of Securities in
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bearer form, registrable or not registrable as to
principal, and with or without interest coupons; or
(5) to secure the Securities; or
(6) to evidence and provide for the acceptance of
appointment hereunder by a successor Trustee hereunder;
or
(7) to cure any ambiguity, to correct or supplement any
provision herein which may be inconsistent with any other provision
herein, or to make any other provisions with respect to matters or
questions arising under this Indenture, provided such action shall not
adversely affect the interests of the Holders in any material respect;
or
(8) to comply with the requirements of the Commission in order
to effect or maintain the qualifications of this Indenture under the
Trust Indenture Act.
SECTION 9.02. Supplemental Indentures with Consent of Holders.
With the consent of the Holders of not less than a majority in aggregate
principal amount of the Outstanding Securities, by Act of said Holders delivered
to the Company and the Trustee, the Company, when authorized by a Board
Resolution, and the Trustee may enter into an indenture or indentures
supplemental hereto for the purpose of adding any provisions to or changing in
any manner or eliminating any of the provisions of this Indenture or of
modifying in any manner the rights of the Holders under this Indenture;
provided, however, that no such supplemental indenture shall, without the
consent of the Holder of each Outstanding Security affected thereby,
(a) change the Stated Maturity of the principal of, or any
installment of principal of or interest on, any such Security, or
reduce the principal amount thereof or the rate of interest thereon or
change the place of Payment where, or the coin or currency in which,
any such Security or any premium or the interest thereon is payable, or
impair the right to institute suit for the enforcement of any such
payment on or after the Stated Maturity thereof, or
(b) reduce the percentage in principal amount of
the Outstanding Securities, the consent of whose
82
Holders is required for any such supplemental indenture, or the consent
of whose Holders is required for any waiver of compliance with certain
provisions of this Indenture or certain defaults and their consequence
provided in this Indenture, or
(c) modify any of the provision of this Section 9.02, Section
5.13 or Section 9.08, except to increase any such percentage or to
provide that certain other provisions of this Indenture cannot be
modified or waived without the consent of the Holder of each
Outstanding Security affected thereby; provided, however, that this
clause shall not be deemed to require the consent of any Holder with
respect to changes in the references to "the Trustee" and concomitant
changes in this Section 9.02 and Section 9.08, or the deletion of this
proviso, in accordance with the requirements of Sections 6.11(b) and
9.01(h).
The Company may, but shall not obligated to, fix a record date
for the purpose of determining the Persons entitled to consent to any indenture
supplemental hereto. If a record date is fixed for such purpose, the Holders on
such record date or their duly designated proxies, and only such Persons, shall
be entitled to consent to such supplemental indenture, whether or not such
Holders remain Holders after such record date; provided that unless such consent
shall have become effective by virtue of the requisite percentage having been
obtained prior to the date which is 120 days after such record date, any such
consent previously given shall automatically and without further action by any
Holder be canceled and of no further effect.
It shall not be necessary for any Act of Holders under this
Section to approve the particular form of any proposed supplemental indenture,
but it shall be sufficient if such Act shall approve the substance thereof.
SECTION 9.03. Execution of Supplemental Indentures. In
executing, or accepting the additional trusts created by, any supplemental
indenture permitted by this Article or the modifications thereby of the trusts
created by this Indenture, the Trustee shall be entitled to receive and (subject
to Section 6.01) shall be fully protected in relying upon, an Opinion of Counsel
stating that the execution of such supplemental indenture is authorized or
permitted by this Indenture. The Trustee may,
83
but shall not be obligated to, enter into any such supplemental indenture which
affects the Trustee's own rights, duties or immunities under this Indenture or
otherwise.
SECTION 9.04. Effect of Supplemental Indentures. Upon the
execution of any supplemental indenture under this Article, this Indenture shall
be modified in accordance therewith, and such supplemental indenture shall form
a part of this Indenture for all purposes; and every Holder of Securities
theretofore or thereafter authenticated and delivered hereunder shall be bound
thereby to the extent provided therein.
SECTION 9.05. Conformity with Trust Indenture Act. Every
supplemental indenture executed pursuant to this Article shall conform to the
requirements of the Trust Indenture Act as then in effect.
SECTION 9.06. Reference in Securities to Supplemental
Indentures. Securities authenticated and made available for delivery after the
execution of any supplemental indenture pursuant to this Article may, and shall
if required by the Trustee, bear a notation in a form approved by the Trustee as
to any matter provided for in such supplemental indenture. If the Company shall
so determine, new Securities so modified as to conform, in the opinion of the
Trustee and the Company, to any such supplemental indenture may be prepared and
executed by the Company and authenticated and made available for delivery by the
Trustee in exchange for Outstanding Securities.
SECTION 9.07. Notice of Supplemental Indentures. Promptly
after the execution by the Company and the Trustee of any supplemental indenture
pursuant to the provisions of Section 9.02, the Company shall give notice
thereof to the Holders of each Outstanding Security so affected, pursuant to
Section 1.06, setting forth in general terms the substance of such supplemental
indenture.
SECTION 9.08. Waiver of Certain Covenants. The Company may
omit in any particular instance to comply with any term, provision or condition
set forth in Sections 10.02 and 10.03 if before the time for such compliance the
Holders of not less than a majority in aggregate principal amount of the
Outstanding Securities shall, by Act of such Holders, either waive such
compliance in such instance or generally waive compliance with such term,
provision or condition, but
84
no such waiver shall extend to or affect each term, provision or condition
except to the extent so expressly waived, and, until such waiver shall become
effective, the obligations of the Company and the duties of the Trustee in
respect of any such term, provision or condition shall remain in full force and
effect.
The Company may, but shall not be obligated to, fix a record
date for the purpose of determining the Persons entitled to waive any such term,
provision or condition. If a record date is fixed for such purpose, the Holders
on such record date or their duly designated proxies, and only such Persons,
shall be entitled to waive any such term, provision or condition hereunder,
whether or not such Holders remain Holders after such record date; provided that
unless the Holders of not less than a majority in principal amount of the
Outstanding Securities shall have waived such term, provision or condition prior
to the date which is 90 days after such record date, any such waiver previously
given shall automatically and without further action by any Holder be canceled
and of no further effect.
SECTION 9.09. Payment for Consent. None the Company, any
Affiliate of the Company or any Subsidiary 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 or agreed to be paid to all
Holders which so consent, waive or agree to amend in the time frame set forth in
solicitation documents relating to such consent, waiver or agreement.
ARTICLE X
Covenants
SECTION 10.01. Payment of Principal, Premium and Interest. The
Company covenants and agrees for the benefit of the Holders that it will duly
and punctually pay the principal of (and premium, if any) and interest on the
Securities in accordance with the terms of the Securities and this Indenture.
SECTION 10.02. Restrictions on Secured Debt. (a) The Company
will not itself, and will not permit any
85
Restricted Subsidiary to, incur, issue, assume or guarantee any notes, bonds,
debentures or other similar evidences of indebtedness for money borrowed (notes,
bonds, debentures or other similar evidences of indebtedness for money borrowed
being hereinafter in this Article called "Debt"), secured by a pledge of, or
mortgage or other lien on, any Principal Property, now owned or hereafter owned
by the Company or any Restricted Subsidiary, or any shares of stock or Debt of
any Restricted Subsidiary (pledges, mortgages and other liens being hereinafter
in this Article called "Lien" or "Liens"), without effectively providing that
the Securities (together with, if the Company shall so determine, any other Debt
of the Company or such Restricted Subsidiary then existing or thereafter created
which is not subordinate to the Securities) shall be secured equally and ratably
with (or prior to) such secured Debt, so long as such secured Debt shall be so
secured; provided, however, that this Section shall not apply to, and there
shall be excluded from secured Debt in any computation under this Section, Debt
secured by:
(i) Liens on any Principal Property acquired (whether by
merger, consolidation, purchase, lease or otherwise), constructed or
improved by the Company or any Restricted Subsidiary after the date of
this Indenture which are created or assumed prior to, contemporaneously
with or within 270 days after such acquisition, construction or
improvement, to secure or provide for the payment of all or any part of
the cost of such acquisition, construction or improvement (including
related expenditures capitalized for Federal income tax purposes in
connection therewith) incurred after the date of this Indenture;
(ii) Liens of or upon any property, shares of capital stock or
Debt existing at the time of acquisition thereof, whether by merger,
consolidation, purchase, lease or otherwise (including Liens of or upon
property, shares of capital stock or indebtedness of a corporation
existing at the time such corporation becomes a Restricted Subsidiary);
(iii) Liens in favor of, or which secure debt owing
to, the Company or any Restricted Subsidiary;
(iv) Liens in favor of the United States of America or any
State thereof, or any department, agency or instrumentality or
political subdivision of the United States of America or any State
thereof or political
86
entity affiliated therewith, or in favor of any other country, or any
political subdivision thereof, to secure partial, progress, advance or
other payments, or other obligations, pursuant to any contract or
statute or to secure any Debt incurred for the purpose of financing all
or any part of the cost of acquiring, constructing or improving the
property subject to such Liens (including Liens incurred in connection
with pollution control, industrial revenue or similar financings);
(v) Liens imposed by law, such as mechanics', worker's,
repairmen's, materialmen's, carriers', warehousemen's, vendors' or
other similar liens arising in the ordinary course of business, or
governmental (Federal, state or municipal) liens arising out of
contracts for the sale of products or services by the Company or any
Restricted Subsidiary, or deposits or pledges to obtain the release of
any of the foregoing;
(vi) pledges or deposits under workmen's compensation laws or
similar legislation and Liens of judgments thereunder which are not
currently dischargeable, or good faith deposits in connection with
bids, tenders, contracts (other than for the payment of money) or
leases to which the Company or any Restricted Subsidiary is a party, or
deposits to secure public or statutory obligations of the Company or
any Restricted Subsidiary, or deposits in connection with obtaining or
maintaining self-insurance or to obtain the benefits of any law,
regulation or arrangement pertaining to unemployment insurance, old age
pensions, social security or similar matters, or deposits of cash or
obligations of the United States of America to secure surety, appeal or
customs bonds to which the Company or any Restricted Subsidiary is a
party, or deposits in litigation or other proceedings such as, but not
limited to, interpleader proceedings;
(vii) Liens created by or resulting from any litigation or other
proceeding which is being contested in good faith by appropriate
proceedings, including Liens arising out of judgments or awards against
the Company or any Restricted Subsidiary with respect to which the
Company or such Restricted Subsidiary is in good faith prosecuting an
appeal or proceedings for review; or Liens incurred by the Company or
any Restricted Subsidiary for the purpose of obtaining a
87
stay or discharge in the course of any litigation or other proceeding
to which the Company or such Restricted Subsidiary is a party;
(viii) Liens for taxes or assessments or governmental charges or
levies not yet due or delinquent, or which can thereafter be paid
without penalty, or which are being contested in good faith by
appropriate proceedings;
(ix) Liens consisting of easements, rights-of-way, zoning
restrictions, restrictions on the use of real property, and defects and
irregularities in the title thereto, landlords' liens and other similar
liens and encumbrances none of which interfere materially with the use
of the property covered thereby in the ordinary course of the business
of the Company or such Restricted Subsidiary and which do not, in the
opinion of the Company, materially detract from the value of such
properties;
(x) Liens existing on the Issue Date; or
(xi) any extension, renewal or replacement (or successive
extensions, renewals or replacements), as a whole or in part, of any
Lien referred to in the foregoing clauses (i) to (x), inclusive;
provided that (1) such extension, renewal or replacement Lien shall be
limited to all or a part of the same property, shares of stock or Debt
that secured the Lien extended, renewed or replaced (plus improvements
on such property) and (2) the Debt secured by such Lien at such time is
not increased.
(b) Notwithstanding the restrictions contained in subsection
(a) of this Section, the Company and its Restricted Subsidiaries, or any of
them, may incur, issue, assume or guarantee Debt secured by Liens without
equally and ratably securing the Securities of each series then Outstanding;
provided that at the time of such incurrence, issuance, assumption or guarantee,
after giving effect thereto and to the retirement of any Debt which is
concurrently being retired, the aggregate amount of all outstanding Debt secured
by Liens which could not have been incurred, issued, assumed or guaranteed by
the Company or a Restricted Subsidiary without equally and ratably securing the
Securities of each series then Outstanding except for the provisions of this
subdivision (b), together with the
88
aggregate amount of Attributable Debt incurred pursuant to subsection (b) of
Section 10.03, does not at such time exceed the greater of (i) $100,000,000 or
(ii) 25% of Consolidated Net Tangible Assets of the Company.
SECTION 10.03. Restriction on Sale and Leaseback Transactions.
(a) The Company will not itself, and it will not permit any Restricted
Subsidiary to, enter into any arrangement with any bank, insurance company or
other lender or investor (not including the Company or any Restricted
Subsidiary) or to which any such lender or investor is a party, providing for
the leasing by the Company or a Restricted Subsidiary for a period, including
renewals, in excess of three years of any Principal Property which has been or
is to be sold or transferred by the Company or any Restricted Subsidiary to such
lender or investor or to any person to whom funds have been or are to be
advanced by such lender or investor on the security of such Principal Property
(herein referred to as a "Sale and Leaseback Transaction") unless either:
(i) the Company or such Restricted Subsidiary would, at the
time of entering into such arrangement, be entitled, without equally
and ratably securing the Securities of each series then Outstanding, to
incur Debt secured by a Lien on such property, pursuant to paragraphs
(i) to (xi), inclusive, of Section 10.02; or
(ii) the Company within 270 days after the sale or transfer
shall have been made by the Company or by a Restricted Subsidiary,
applies an amount equal to the greater of (A) the net proceeds of the
sale of the Principal Property sold and leased back pursuant to such
arrangement or (B) the fair market value of the Principal Property so
sold and leased back at the time of entering into such arrangement (as
determined by any two of the following: the Chairman or a Vice Chairman
of the Board of the Company, its President, its Chief Financial
Officer, its Vice President of Finance, if any, its Treasurer or its
Controller) to (x) the retirement of Funded Debt of the Company;
provided that the amount to be applied to the retirement of Funded Debt
of the Company shall be reduced by (1) the principal amount of any
Securities delivered within 270 days after such sale to the Trustee for
retirement and cancelation, and (2) the principal amount of Funded
Debt, other than Securities, voluntarily retired by the Company within
270 days after such sale or (y) or the
89
purchase, construction or development of other property, facilities or
equipment used or useful in the Company's or its Restricted
Subsidiaries' business. Notwithstanding the foregoing, no retirement
referred to in this clause (a)(ii) may be effected by payment at
maturity or pursuant to any mandatory sinking fund payment or mandatory
prepayment provision.
(b) Notwithstanding the restrictions contained in subsection
(a) of this Section, the Company and its Restricted Subsidiaries, or any of
them, may enter into a Sale and Leaseback Transaction; provided that at the time
of such transaction, after giving effect thereto and to the retirement of any
Funded Debt which is concurrently being retired, the aggregate amount of all
Attributable Debt in respect of Sale and Leaseback Transactions existing at such
time which could not have been entered into except for the provisions of this
subsection (b), together with the aggregate amount of all outstanding debt
incurred pursuant to subsection (b) of Section 10.02, does not at such time
exceed the greater of (i) $100,000,000 or (ii) 25% of Consolidated Net Tangible
Assets of the Company.
(c) A Sale and Leaseback Transaction shall not be deemed to
result in the creation of a Lien.
SECTION 10.04. Compliance Certificate. (a) The Company shall
deliver to the Trustee, within 120 days after the end of each fiscal year, an
Officers' Certificate stating that a review of the activities of the Company and
its Subsidiaries during the preceding fiscal year has been made under the
supervision of the signing Officers with a view to determining whether each has
kept, observed, performed and fulfilled its obligations under this Indenture,
and further stating, as to each such Officer signing such certificate, that to
his or her knowledge each entity has kept, observed, performed and fulfilled
each and every covenant contained in this Indenture and is not in default in the
performance or observance of any of the terms, provisions and conditions of this
Indenture (or, if an Event of Default shall have occurred, describing all such
Defaults or Events of Default of which he or she may have knowledge and what
action each is taking or proposes to take with respect thereto) and that to his
or her knowledge no event has occurred and remains in existence by reasons of
which payments on account of the principal of or interest, if any, on the
Securities of any series is prohibited or if such event has occurred, a
description of the event and what
90
action each is taking or proposes to take with respect thereto.
(b) The Company shall deliver to the Trustee, forthwith upon
any Officer becoming aware of (i) any Event of Default or (ii) any event of
default under any other mortgage, indenture or instrument, an Officers'
Certificate specifying such Event of Default or event of default and what action
the Company is taking or proposes to take with respect thereto.
This instrument may be executed in any number of counterparts,
each of which so executed shall be deemed to be an original, but all such
counterparts shall together constitute but one and the same instrument.
IN WITNESS WHEREOF, the parties hereto have caused this
Indenture to be only executed all as of the day and year first above written.
FIRST BRANDS CORPORATION,
by
/s/ XXXXXX XxXXXXXX
_____________________________
Name: Xxxxxx XxXxxxxx
Title: Senior Vice President,
Chief Financial Officer
and Treasurer
THE BANK OF NEW YORK, as
Trustee,
by
/s/ XXXXXX XXXXXXX
_____________________________
Name: Xxxxxx Xxxxxxx
Title: Assistant Vice President
EXHIBIT A
FORM OF CERTIFICATE TO BE DELIVERED
IN CONNECTION WITH TRANSFERS TO
NON-QIB INSTITUTIONAL ACCREDITED INVESTORS
FIRST BRANDS CORPORATION
THE BANK OF NEW YORK
000 Xxxxxxx Xxxxxx
Xxxxx 00 Xxxx
Xxx Xxxx, XX 00000
Attention: Corporate Trust Administration
Ladies and Gentlemen:
In connection with our proposed purchase of 7.25% Senior Notes
due 2007 (the "Notes") of First Brands Corporation (the "Company"), we confirm
that:
1. We are an institutional "accredited investor" (as defined
in Rule 501(a)(1), (2), (3) or (7) under the Securities Act) and have such
knowledge and experience in financial and business matters as to be capable of
evaluating the merits and risks of our investment in the Notes, and we and any
accounts for which we are acting are each able to bear the economic risk of our
or their investment, as the case may be.
2. We are acquiring the Notes purchased by us for our account
or for one or more accounts (each of which is an institutional "accredited
investor") as to each of which we exercise sole investment discretion.
3. We understand that any subsequent transfer of the Notes is
subject to certain restrictions and conditions set forth in the Indenture
relating to the Notes and the undersigned agrees to be bound by, and not to
resell, pledge or otherwise transfer the Notes except in compliance with, such
restrictions and conditions and the Securities Act of 1933 (the "Securities
Act").
4. We understand that the Notes have not been registered under
the Securities Act, and that the Notes may not be sold except as permitted in
the following sentence. We agree, on our own behalf and on behalf of any
accounts for which we are acting as hereinafter stated, that if we
A-1
should sell or otherwise transfer any Notes prior to the date which is two years
after the original issuance of the Notes, we will do so only (i) to the Company
or any of its subsidiaries, (ii) inside the United States in accordance with
Rule 144A under the Securities Act to a "qualified institutional buyer" (as
defined in Rule 144A under the Securities Act), (iii) inside the United States
to an institutional "accredited investor" (as defined in Rule 501(a)(1), (2),
(3) or (7) under the Securities Act) that, prior to such transfer, furnished (or
has furnished on its behalf by a U.S. broker/dealer) to the Trustee (as defined
in the Indenture relating to the Notes), a signed letter containing certain
representations and agreements relating to the restrictions on transfer of the
Notes (the form of which letter can be obtained from the Trustee), (iv) outside
the United States in accordance with Rule 904 of Regulation S under the
Securities Act, (v) pursuant to the exemption from registration provided by Rule
144 under the Securities Act (if available), or (vi) pursuant to an effective
registration statement under the Securities Act, and we further agree to provide
to any person purchasing any of the Notes from us a notice advising such
purchaser that resales of the Notes are restricted as stated herein.
5. We are not acquiring the Notes for or on behalf of, and
will not transfer the Notes to, any pension or welfare plan (as defined in
Section 3 of the Employee Retirement Income Security Act of 1974), except as
permitted in the section entitled "Notice to Investors" of the Offering
Memorandum.
6. We understand that, on any proposed resale of any Notes, we
will be required to furnish to the Trustee and the Company such certification,
legal opinions and other information as the Trustee and the Company may
reasonably require to confirm that the proposed sale complies with the foregoing
restrictions. We further understand that the Notes purchased by us will bear a
legend to the foregoing effect.
The Company and the Trustee are entitled to rely upon this
letter and are irrevocably authorized to produce this letter or a copy to any
interested party in any administrative or legal proceeding or official inquiry
with respect to the matters covered hereby.
A-2
THIS LETTER SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE
WITH, THE LAWS OF THE STATE OF NEW YORK.
___________________________________
(Name of Purchaser)
By:
___________________________
Name:
Title:
Address:
Date: _________________________
Upon transfer, the Notes should be registered in the name of the new beneficial
owner as follows:
Name:__________________________________________
Address:_______________________________________
_______________________________________________
Taxpayer ID Number:____________________________
A-3
EXHIBIT B
FORM OF CERTIFICATE TO BE DELIVERED
IN CONNECTION WITH TRANSFERS
PURSUANT TO REGULATION S
------------------------
FIRST BRANDS CORPORATION
THE BANK OF NEW YORK
000 Xxxxxxx Xxxxxx
Xxxxx 00 Xxxx
Xxx Xxxx, XX 00000
Attention: Corporate Trust
Ladies and Gentlemen:
In connection with our proposed sale of $________ aggregate
principal amount of 7.25% Senior Notes due 2007 (the "Notes") of First Brands
Corporation (the "Company"), we confirm that such sale has been effected
pursuant to and in accordance with Regulation S under the Securities Act of 1933
and, accordingly, we represent that:
(1) the offer of the Notes was not made to a U.S. Person;
(2) either (a) at the time the buy order was originated, the
transferee was outside the United States or we and any person acting on
our behalf reasonably believed that the transferee was outside the
United States or (b) the transaction was executed in, on or through the
facilities of a designated off-shore securities market and neither we
nor any person acting on our behalf knows that the transaction has been
prearranged with a buyer in the United States;
(3) no directed selling efforts have been made in the United
States in contravention of the requirements of Rule 903(b) or Rule
904(b) of Regulation S, as applicable; and
(4) the transaction is not part of a plan or scheme to evade
the registration requirements of the U.S. Securities Act of 1933.
B-1
In addition, if the sale is made during a restricted period and the provisions
of Rule 903(c)(3) or Rule 904(c)(1) of Regulation S are applicable thereto, we
confirm that such sale has been made in accordance with the applicable
provisions of Rule 903(c)(3) or Rule 904(c)(1), as the case may be.
You and the Company are entitled to rely upon this letter and
are irrevocably authorized to produce this letter or a copy hereof to any
interested party in any administrative or legal proceedings or official inquiry
with respect to the matters covered hereby. Terms used in this certificate have
the meanings set forth in Regulation S.
___________________________
(Name of Transferor)
By:________________________
Name:
Title:
Address:
Date:______________________
Upon transfer, the Notes should be registered in the name of the new beneficial
owner as follows:
Name:____________________________________________________
Address:_________________________________________________
_________________________________________________________
Taxpayer ID Number:______________________________________
B-2
