Exhibit 4.1
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DOW XXXXX & COMPANY, INC.,
as Issuer
and
THE BANK OF NEW YORK,
as Trustee
3.875% Senior Notes due 2008
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INDENTURE
Dated as of February 17, 2005
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CROSS-REFERENCE TABLE
Certain Sections of this Indenture relating to Sections 310 through
318, inclusive, of the Trust Indenture Act of 1939:
Trust Indenture Act Indenture
Section Section
------- -------
310(a)(1) .................................... 7.9; 7.10
(a)(2) .................................... 7.10
(a)(3) .................................... N.A.
(a)(4) .................................... N.A.
(b) .................................... 7.8; 7.10
(c) .................................... N.A.
311(a) .................................... 7.11
(b) .................................... 7.11
(c) .................................... N.A.
312(a) .................................... 2.5
(b) .................................... 10.3
(c) .................................... 10.3
313(a) .................................... 7.6
(b)(1) .................................... N.A.
(b)(2) .................................... 7.6
(c) .................................... 7.6
(d) .................................... 7.6
314(a) .................................... 4.7
.................................... 4.4; 10.2
(b) .................................... N.A.
(c)(1) .................................... 10.4
(c)(2) .................................... 10.4
(c)(3) .................................... N.A.
(d) .................................... N.A.
(e) .................................... 10.5
(f) .................................... 4.4
315(a) .................................... 7.1
(b) .................................... 7.5
(c) .................................... 7.1
(d) .................................... 7.1
(e) .................................... 6.11
316(a)(last sentence) .................................... 10.6
(a)(1)(A) .................................... 6.5
(a)(1)(B) .................................... 6.4
(a)(2) .................................... N.A.
(b) .................................... 6.7
317(a)(1) .................................... 6.8
(a)(2) .................................... 6.9
(b) .................................... 2.4
318(a) .................................... 10.1
N.A. means Not Applicable.
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Note: This Cross-Reference Table shall not, for any purpose, be deemed to
be part of this Indenture.
TABLE OF CONTENTS
PAGE
ARTICLE I Definitions and Incorporation by Reference.........................1
SECTION 1.1. Definitions........................................1
SECTION 1.2. Other Definitions..................................5
SECTION 1.3. Incorporation by Reference of Trust
Indenture Act......................................6
SECTION 1.4. Rules of Construction..............................6
ARTICLE II The Notes.........................................................7
SECTION 2.1. Form and Dating....................................7
SECTION 2.2. Execution and Authentication......................11
SECTION 2.3. Registrar and Paying Agent........................12
SECTION 2.4. Paying Agent To Hold Money in Trust...............13
SECTION 2.5. Noteholder Lists..................................13
SECTION 2.6. Transfer and Exchange.............................13
SECTION 2.7. Form of Certificates to be Delivered in
Connection with Transfers Pursuant to
Regulation S and Rule 144A........................18
SECTION 2.8. Business Days.....................................18
SECTION 2.9. Replacement Notes.................................18
SECTION 2.10. Outstanding Notes................................18
SECTION 2.11. Temporary Notes..................................18
SECTION 2.12. Cancellation.....................................19
SECTION 2.13. Defaulted Interest...............................19
SECTION 2.14. CUSIP Numbers, etc...............................19
SECTION 2.15. Issuance of Additional Notes.....................19
SECTION 2.16. One Class of Notes...............................20
ARTICLE III Redemption......................................................20
SECTION 3.1. Notices to Trustee................................20
SECTION 3.2. Selection of Notes to be Redeemed.................20
SECTION 3.3. Notice of Redemption..............................21
SECTION 3.4. Effect of Notice of Redemption....................21
SECTION 3.5. Deposit of Redemption Price.......................22
SECTION 3.6. Notes Redeemed in Part............................22
ARTICLE IV Covenants........................................................22
SECTION 4.1. Payment of Notes..................................22
SECTION 4.2. Limitations on Liens..............................23
SECTION 4.3. Limitation on Sale and Lease-Back Transactions....24
SECTION 4.4. Compliance Certificate............................25
SECTION 4.5. Maintenance of Office or Agency...................25
SECTION 4.6. Existence.........................................25
SECTION 4.7. SEC Reports.......................................25
ARTICLE V Consolidation, Merger and Sale of Assets..........................25
SECTION 5.1. Company May Merge or Transfer Assets Only on
Certain Terms.....................................25
SECTION 5.2. Successor Corporation Substituted.................26
ARTICLE VI Defaults and Remedies............................................26
SECTION 6.1. Events of Default.................................26
SECTION 6.2. Acceleration......................................28
SECTION 6.3. Other Remedies....................................28
SECTION 6.4. Waiver of Past Defaults...........................28
SECTION 6.5. Control by Majority...............................28
SECTION 6.6. Limitation on Suits...............................29
SECTION 6.7. Rights of Holders To Receive Payment..............29
SECTION 6.8. Collection Suit by Trustee........................29
SECTION 6.9. Trustee May File Proofs of Claim..................29
SECTION 6.10. Priorities.......................................30
SECTION 6.11. Undertaking for Costs............................30
SECTION 6.12. Waiver of Stay or Extension Laws.................30
ARTICLE VII Trustee.........................................................31
SECTION 7.1. Duties of Trustee.................................31
SECTION 7.2. Rights of Trustee.................................32
SECTION 7.3. Individual Rights of Trustee......................33
SECTION 7.4. Trustee's Disclaimer..............................33
SECTION 7.5. Notice of Defaults................................33
SECTION 7.6. Reports by Trustee to Holders.....................33
SECTION 7.7. Compensation and Indemnity........................34
SECTION 7.8. Replacement of Trustee............................34
SECTION 7.9. Successor Trustee by Merger.......................35
SECTION 7.10. Eligibility; Disqualification....................36
SECTION 7.11. Preferential Collection of Claims Against
the Company......................................36
ARTICLE VIII Discharge of Indenture; Defeasance.............................36
SECTION 8.1. Discharge of Liability on Notes; Defeasance.......36
SECTION 8.2. Conditions to Defeasance..........................37
SECTION 8.3. Application of Trust Money........................38
SECTION 8.4. Repayment to the Company..........................38
SECTION 8.5. Indemnity for Government Obligations..............38
SECTION 8.6. Reinstatement.....................................38
ARTICLE IX Amendments.......................................................39
SECTION 9.1. Without Consent of Holders........................39
SECTION 9.2. With Consent of Holders...........................40
SECTION 9.3. Compliance with Trust Indenture Act...............40
SECTION 9.4. Effect of Consents and Waivers....................41
SECTION 9.5. Notation on or Exchange of Notes..................41
SECTION 9.6. Trustee To Sign Amendments........................41
ARTICLE X Miscellaneous.....................................................41
SECTION 10.1. Trust Indenture Act Controls.....................41
SECTION 10.2. Notices41
SECTION 10.3. Communication by Holders with other Holders......42
SECTION 10.4. Certificate and Opinion as to Conditions
Precedent........................................42
SECTION 10.5. Statements Required in Certificate or Opinion....43
SECTION 10.6. When Notes Disregarded...........................43
SECTION 10.7. Rules by Trustee, Paying Agent and Registrar.....43
SECTION 10.8. Governing Law....................................43
SECTION 10.9. No Recourse Against Others.......................43
SECTION 10.10. Successors......................................43
SECTION 10.11. Multiple Originals..............................44
SECTION 10.12. Variable Provisions.............................44
SECTION 10.13. Qualification of Indenture......................44
SECTION 10.14. Table of Contents; Headings.....................44
Exhibit A - Form of Initial Note
Exhibit B - Form of Exchange Note
Exhibit C - Form of Certificate (transfers pursuant to Regulation S)
Exhibit D - Form of Certificate (transfers pursuant to Rule 144A)
Exhibit E - Form of Incumbency Certificate
INDENTURE, dated as of February 17, 2005, between Dow Xxxxx &
Company, Inc., a Delaware corporation (the "Company"), and THE BANK OF NEW
YORK, a New York banking corporation, as Trustee (the "Trustee").
Each party agrees as follows for the benefit of the other party
and for the equal and ratable benefit of Holders of the Company's 3.875%
Senior Notes due 2008 (the "Initial Notes") and, if and when issued in
exchange for Initial Notes as provided in the Registration Rights
Agreement, the Company's 3.875% Senior Notes due 2008 (the "Exchange Notes"
and, together with the Initial Notes and any Additional Notes, the
"Notes"):
ARTICLE I
Definitions and Incorporation by Reference
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SECTION 1.1. Definitions.
"Additional Interest" shall have the meaning assigned to such
term in the Registration Rights Agreement.
"Additional Notes" means 3.875% Senior Notes due 2008 issued from
time to time after the Issue Date under the terms of this Indenture (other
than pursuant to Sections 2.6, 2.9, 2.11, 3.6 and 9.5 of this Indenture, in
the case of Notes that are not already Additional Notes, and other than
Exchange Notes issued pursuant to an exchange offer for the other Notes
outstanding under this Indenture).
"Attributable Debt" means, when used in respect of any Sale and
Lease-Back Transaction, as of the time of the determination, the lesser of
(i) the sale price of the Principal Property so leased multiplied by a
fraction the numerator of which is the remaining portion of the base term
of the lease included in such transaction and the denominator of which is
the base term of such lease, and (ii) the total obligation (discounted to
present value at the implicit interest factor, determined in accordance
with generally accepted financial practice, included in the rental
payments) of the lessee for rental payments (other than amounts required to
be paid on account of property taxes as well as maintenance, repairs,
insurance, water rates and other items which do not constitute payments for
property rights and excluding the rental obligations, calculated on the
same basis, that any sublessee has for all or part of the same property)
during the remaining portion of the base term of the lease included in such
transaction.
"Board of Directors" or "Board" means, with respect to any
Person, the Board of Directors of such Person or any committee thereof duly
authorized to act on behalf of such Board of Directors.
"Business Day" means a day which is not, in New York City or any
other place of payment, a Saturday, Sunday or other day on which banking
institutions or trust companies are authorized or required by law,
resolution or executive order to close.
"Capital Stock" means, with respect to any Person means any and
all shares, interests, rights to purchase, warrants, options,
participations or other equivalents of or interests in (however designated)
equity of such Person, including any preferred stock, partnership interests
and limited liability company membership interests, but excluding any debt
securities convertible into such equity.
"Code" means the U.S. Internal Revenue Code of 1986, as amended.
"Company" means the Person named as the "Company" in the preamble
to this Indenture until a successor corporation shall have become such
pursuant to the applicable provisions of this Indenture, and thereafter,
the "Company" shall mean such successor corporation.
"Consolidated Total Assets" means the aggregate amount of assets
of the Company and its Restricted Subsidiaries on a consolidated basis, as
set forth on the most recent balance sheet of the Company and its
Subsidiaries and computed in accordance with GAAP.
"Corporate Trust Office" means the office of the Trustee at
which, at any particular time, its corporate trust business shall be
principally administered; which office at the date of the execution of this
Indenture is located at 000 Xxxxxxx Xxxxxx, Xxxxx 0X, Xxx Xxxx, Xxx Xxxx
00000, Attention: Corporate Trust Administration or at any other time at
such other address as the Trustee may designate from time to time by notice
to the Holders.
"Debt" means, with respect to any Person, notes, bonds,
debentures, or other evidences of indebtedness for money borrowed, lease
obligations of a lessee which are capitalized in accordance with GAAP, Debt
of others secured by a lien on any Principal Property of such Person, and
guarantees of such Person, in each case which appear on the consolidated
balance sheet of such Person as a liability in accordance with GAAP.
"Default" means any event which is, or after notice or passage of
time or both would be, an Event of Default.
"DTC" means The Depository Trust Company, its nominees and their
respective successors and assigns.
"Exchange Act" means the Securities Exchange Act of 1934, as
amended, and the rules and regulations promulgated by the SEC thereunder.
"GAAP" means generally accepted accounting principles in the
United States as in effect on the date of this Indenture.
"guarantee" means any obligation, contingent or otherwise, of any
Person directly or indirectly guaranteeing any Debt of any other Person and
any obligation, direct or indirect, contingent or otherwise, of such Person
(i) to purchase or pay (or advance or supply funds for the purchase or
payment of) such Debt of such other Person or (ii) entered into for
purposes of assuring in any other manner the obligee of such Debt of the
payment thereof or to protect such obligee against loss in respect thereof
(in whole or in part); provided, however, that the term "guarantee" shall
not include endorsements for collection or deposit in the ordinary course
of business. The term "guarantee" used as a verb has a correlative meaning.
"Holder" or "Noteholder" means the Person in whose name a Note is
registered on the Registrar's books.
"Incur" means issue, assume or guarantee.
"Indenture" means this Indenture, as amended or supplemented from
time to time.
"Initial Purchasers" means X.X. Xxxxxx Securities Inc., Xxxxxxx
Lynch, Pierce, Xxxxxx & Xxxxx Incorporated and the other Initial Purchasers
named in the Purchase Agreement.
"Issue Date" means February 17, 2005.
"Lien" means any mortgage, lien, security interest, pledge,
charge or other encumbrance; provided that in no event shall an operating
lease or any Uniform Commercial Code financing statement filed in respect
thereof be deemed to constitute a Lien.
"Officer" means the Chairman of the Board, the Chief Executive
Officer, the Controller, the Chief Operating Officer, any Vice President,
the Treasurer, the Assistant Treasurer, the Chief Financial Officer, the
Chief Accounting Officer, the General Counsel, the Secretary or the
Assistant Secretary of the Company, as applicable.
"Officers' Certificate" means a certificate signed by any two
Officers of the Company.
"Opinion of Counsel" means a written opinion from Fried, Frank,
Harris, Xxxxxxx & Xxxxxxxx LLP or any other legal counsel to the Company.
The counsel may be an employee of the Company. Opinions of Counsel required
to be delivered under this Indenture may have qualifications customary for
opinions of the type required and counsel delivering such Opinions of
Counsel may rely on certificates of the Company or governmental or other
officials customary for opinions of the type required, including
certificates certifying as to matters of fact.
"Person" means any individual, corporation, partnership, limited
liability company, joint venture, association, joint-stock company, trust,
unincorporated organization or government or any agency or political
subdivision thereof or any other entity.
"principal" means the principal of the Note plus the premium, if
any, payable on the Note which is due or overdue or is to become due at the
relevant time; provided, however, that for purposes of calculating any such
premium, the term "principal" shall not include the premium with respect to
which such calculation is being made.
"Principal Property" means real property owned or leased under a
capital lease and used by the Company or any Restricted Subsidiary, located
in the United States and having an acquisition cost plus capitalized
improvements in excess of 1% of Consolidated Total Assets as of the date of
determination; provided, however, that the term "Principal Property" shall
not include any such real property financed through the issuance of tax
exempt governmental obligations, or any such real property that has been
determined in good faith by the Company's Board of Directors not to be
material to the businesses conducted by, or financial condition of, the
Company and its Subsidiaries taken as a whole, effective as of the date the
Board action is adopted.
"Purchase Agreement" means the Purchase Agreement dated February
14, 2005 between the Company and the Initial Purchasers.
"Registered Exchange Offer" means the offer by the Company,
pursuant to the Registration Rights Agreement, to certain Holders of
Initial Notes, to issue and deliver to such Holders, in exchange for the
Initial Notes, a like aggregate principal amount of Exchange Notes
registered under the Securities Act.
"Registration Rights Agreement" means the Registration Rights
Agreement, dated as of February 17, 2005, between the Company and the
Initial Purchasers.
"Restricted Period" means the 40 consecutive days beginning on
and including the later of (A) the day on which the Initial Notes first are
offered to persons other than distributors (as defined in Regulation S
under the Securities Act) and (B) the Issue Date or the date on which any
Additional Notes are originally issued in the form of Initial Notes as the
case may be.
"Restricted Subsidiary" means any Subsidiary other than a
Subsidiary substantially all the real properties of which are located, or
substantially all the operations of which are conducted, outside the United
States.
"Restrictive Notes Legend" means the Restrictive Legend set forth
in clause (A) of Section 2.1(c) or the Regulation S Legend set forth in
clause (B) of Section 2.1(c), as applicable.
"Sale and Lease-Back Transaction" means, with respect to any
Person, any arrangement whereby (i) property has been or is to be sold or
transferred by such Person to any other Person with the intention on the
part of such Person of taking back a lease of such property pursuant to
which the rental payments are calculated to amortize the purchase price of
such property substantially over the useful life of such property and (ii)
such property is in fact so leased by such Person.
"SEC" means the U.S. Securities and Exchange Commission, or any
successor agency.
"Securities Act" means the U.S. Securities Act of 1933, as
amended, and the rules and regulations promulgated by the SEC thereunder.
"Securities Custodian" means the custodian with respect to a
Global Note (as appointed by DTC), or any successor person thereto and
shall initially be the Trustee.
"Significant Subsidiary" means any Subsidiary of the Company
that, as of the date of determination, is a "significant subsidiary" as
defined in Regulation S-X promulgated by the SEC.
"Stated Maturity" means, with respect to any security, the date
specified in such security as the fixed date on which the payment of
principal of such security is due and payable, including pursuant to any
mandatory redemption provision (but excluding any provision providing for
the repurchase of such security at the option of the holder thereof upon
the happening of any contingency beyond the control of the Company unless
such contingency has occurred).
"Subsidiary" means any corporation or other Person of which at
least a majority of all outstanding stock or equivalent interests having
ordinary voting power in the election of directors or members of any
equivalent management body of such corporation or other Person is at the
time, directly or indirectly, owned by the Company or by one or more
Subsidiaries of the Company or by the Company and one or more Subsidiaries.
"Trust Indenture Act" means the U.S. Trust Indenture Act of 1939,
as amended (15 U.S.C. xx.xx. 77aaa-77bbbb) as in effect on the date of this
Indenture; provided, however, that in the event the Trust Indenture Act of
1939 is amended after such date, "Trust Indenture Act" means, to the extent
required by any such amendments, the U.S. Trust Indenture Act of 1939, as
so amended.
"Trustee" means the party named as such in the preamble to this
Indenture until a successor replaces it in accordance with the applicable
provisions of this Indenture and, thereafter, means such successor.
"Trust Officer" means, when used with respect to the Trustee, any
officer within the Corporate Trust Department of the Trustee, including any
vice president, assistant vice president, assistant secretary, assistant
treasurer, trust officer or any other officer of the Trustee who has direct
responsibility for the administration of this Indenture.
"Uniform Commercial Code" means the New York Uniform Commercial
Code as in effect from time to time.
"U.S. Government Obligations" means direct obligations (or
certificates representing an ownership interest in such obligations) of the
United States of America (including any agency or instrumentality thereof)
for the payment of which the full faith and credit of the United States of
America is pledged and which are not callable or redeemable at the
Company's option.
SECTION 1.2. Other Definitions.
Defined in
Term Section
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"Affiliate".......................................... 10.6
"Agent Members"...................................... 2.1(d)
"Applicable Procedures".............................. 2.6(a)
"Authenticating Agent"............................... 2.2
"Bankruptcy Law"..................................... 6.1
"Company Order"...................................... 2.2
"covenant defeasance option"......................... 8.1(b)
"Custodian".......................................... 6.1
"Definitive Notes"................................... 2.1(e)
"Event of Default"................................... 6.1
"Exchange Global Note"............................... 2.1(a)
"Exchange Notes"..................................... Preamble
"Global Notes"....................................... 2.1(a)
"Initial Notes"...................................... Preamble
"legal defeasance option"............................ 8.1(b)
"Notes".............................................. Preamble
"Notice of Default".................................. 6.1
"Paying Agent"....................................... 2.3
"QIBs"............................................... 2.1(a)
"Registrar".......................................... 2.3
"Regulation S"....................................... 2.1(a)
"Regulation S Certificate"........................... 2.6(a)
"Regulation S Global Note"........................... 2.1(a)
"Regulation S Legend"................................ 2.1(c)
"Regulation S Note".................................. 2.1(a)
"Resale Restriction Termination Date"................ 2.1(c)
"Restrictive Legend"................................. 2.1(c)
"Rule 144A".......................................... 2.1(a)
"Rule 144A Certificate".............................. 2.6(b)
"Rule 144A Global Note".............................. 2.1(a)
"Rule 144A Note"..................................... 2.1(a)
"Successor".......................................... 5.1
SECTION 1.3. Incorporation by Reference of Trust Indenture Act.
This Indenture is subject to the mandatory provisions of the Trust
Indenture Act which are incorporated by reference in and made a part of
this Indenture. The following terms in the Trust Indenture Act have the
following meanings:
"Commission" means the SEC.
"indenture securities" means the Notes.
"indenture security holder" means a Holder.
"indenture to be qualified" means this Indenture.
"indenture trustee" or "institutional trustee" means the Trustee.
"obligor" on the indenture securities means the Company and any
other obligor on the indenture securities.
All other terms used in this Indenture that are defined by the
Trust Indenture Act, defined by reference to another statute or defined by
SEC rule have the meanings assigned to them by such definitions.
SECTION 1.4. Rules of Construction. For purposes of this
Indenture, except as otherwise expressly provided herein or unless the
context otherwise requires:
(1) a term has the meaning assigned to it;
(2) an accounting term not otherwise defined has the meaning
assigned to it in accordance with GAAP;
(3) "including" means including without limitation;
(4) words in the singular include the plural and words in the
plural include the singular;
(5) all references to (a) Initial Notes shall refer also to any
Additional Notes issued in the form of Initial Notes and (b) Exchange
Notes shall refer also to any Additional Notes issued in the form of
Exchange Notes, in each case, pursuant to Section 2.15;
(6) all references to the date the Notes were originally issued
shall refer to the Issue Date or the date any Additional Notes were
originally issued, as the case may be; and
(7) all references herein to particular Sections or Articles
shall refer to this Indenture unless otherwise so indicated.
ARTICLE II
The Notes
---------
SECTION 2.1. Form and Dating. (a) The Initial Notes are being
offered and sold by the Company to the Initial Purchasers pursuant to the
Purchase Agreement. The Initial Notes shall be resold initially by the
Initial Purchasers only to (A) qualified institutional buyers (as defined
in Rule 144A under the Securities Act ("Rule 144A")) in reliance on Rule
144A ("QIBs") and (B) Persons other than U.S. Persons (as defined in
Regulation S under the Securities Act ("Regulation S")) in reliance on
Regulation S. The Initial Notes may thereafter be transferred to, among
others, QIBs and purchasers in reliance on Regulation S of the Securities
Act in accordance with the procedure described herein.
Initial Notes offered and sold to qualified institutional buyers
in the United States of America in reliance on Rule 144A (each, a "Rule
144A Note" and collectively, the "Rule 144A Notes") shall be issued on the
Issue Date in the form of a permanent global Note, without interest
coupons, substantially in the form of Exhibit A, which is incorporated by
reference and made a part of this Indenture, including appropriate legends
as set forth in Section 2.1(c) (the "Rule 144A Global Note"), deposited
with the Trustee, as custodian for DTC, duly executed by the Company and
authenticated by the Trustee as hereinafter provided. The Rule 144A Global
Note may be represented by more than one certificate, if so required by
DTC's rules regarding the maximum principal amount to be represented by a
single certificate. The aggregate principal amount of the Rule 144A Global
Note may from time to time be increased or decreased by adjustments made on
the records of the Trustee, as custodian for DTC or its nominee, as
hereinafter provided.
Initial Notes offered and sold outside the United States of
America (each, a "Regulation S Note" and collectively, the "Regulation S
Notes") in reliance on Regulation S shall be issued on the Issue Date in
the form of a permanent global Note, without interest coupons,
substantially in the form set forth in Exhibit A, which is incorporated by
reference and made a part of this Indenture, including appropriate legends
as set forth in Section 2.1(c) (the "Regulation S Global Note") deposited
with the Trustee, as custodian for DTC, duly executed by the Company and
authenticated by the Trustee as hereinafter provided. The Regulation S
Global Note may be represented by more than one certificate, if so required
by DTC's rules regarding the maximum principal amount to be represented by
a single certificate. The aggregate principal amount of the Regulation S
Global Note may from time to time be increased or decreased by adjustments
made on the records of the Trustee, as custodian for DTC or its nominee, as
hereinafter provided.
Exchange Notes exchanged for interests in a Rule 144A Note and a
Regulation S Note shall be issued in the form of a permanent global Note
substantially in the form of Exhibit B hereto, which is hereby incorporated
by reference and made a part of this Indenture, deposited with the Trustee
as hereinafter provided, including the appropriate legend set forth in
Section 2.1(c) (the "Exchange Global Note"). The Exchange Global Note may
be represented by more than one certificate, if so required by DTC's rules
regarding the maximum principal amount to be represented by a single
certificate.
The Rule 144A Global Note, the Regulation S Global Note and the
Exchange Global Note are sometimes collectively herein referred to as the
"Global Notes."
The principal of and interest on the Notes shall be payable at
the office or agency of the Company maintained for such purpose in The City
of New York, or at such other office or agency of the Company as may be
maintained for such purpose pursuant to Section 2.3; provided, however,
that at the option of the Company, each installment of interest may be paid
by (i) check mailed to addresses of the Persons entitled thereto as such
addresses shall appear on the Note Register or (ii) upon request of any
Holder of at least $1,000,000 principal amount of Notes, wire transfer to
an account located in the United States maintained by the payee. Payments
in respect of Notes represented by a Global Note (including principal,
premium and interest) shall be made by wire transfer of immediately
available funds to the accounts specified by DTC.
(b) Denominations. The Notes shall be issuable only in fully
registered form, without coupons, and only in denominations of $5,000 and
any integral multiple of $1,000 in excess thereof.
(c) Restrictive Legends. Unless and until (i) an Initial Note is
sold under an effective registration statement or (ii) an Initial Note is
exchanged for an Exchange Note in connection with an effective registration
statement, in each case pursuant to the Registration Rights Agreement or a
similar agreement,
(A) the Rule 144A Global Note shall bear the following legend
(the "Restrictive Legend") on the face thereof:
"THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE U.S. SECURITIES ACT
OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR THE SECURITIES LAWS OF
ANY STATE OR OTHER JURISDICTION. NEITHER THIS SECURITY NOR ANY
INTEREST OR PARTICIPATION HEREIN MAY BE REOFFERED, SOLD, ASSIGNED,
TRANSFERRED, PLEDGED, ENCUMBERED OR OTHERWISE DISPOSED OF IN THE
ABSENCE OF SUCH REGISTRATION UNLESS SUCH TRANSACTION IS EXEMPT FROM,
OR NOT SUBJECT TO, SUCH REGISTRATION.
THE HOLDER OF THIS SECURITY, BY ITS ACCEPTANCE HEREOF, AGREES ON ITS
OWN BEHALF AND ON BEHALF OF ANY INVESTOR ACCOUNT FOR WHICH IT HAS
PURCHASED SECURITIES, TO OFFER, SELL OR OTHERWISE TRANSFER SUCH
SECURITY, PRIOR TO THE DATE (THE "RESALE RESTRICTION TERMINATION
DATE") THAT IS TWO YEARS AFTER THE LATER OF THE ORIGINAL ISSUE DATE
HEREOF AND THE LAST DATE ON WHICH THE COMPANY OR ANY AFFILIATE OF THE
COMPANY WAS THE OWNER OF THIS SECURITY (OR ANY PREDECESSOR OF SUCH
SECURITY), ONLY (A) TO THE COMPANY, (B) FOR SO LONG AS THE SECURITIES
ARE ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER THE SECURITIES
ACT, TO A PERSON IT REASONABLY BELIEVES IS A "QUALIFIED INSTITUTIONAL
BUYER" AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT THAT PURCHASES
FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED INSTITUTIONAL
BUYER TO WHOM NOTICE IS GIVEN THAT THE TRANSFER IS BEING MADE IN
RELIANCE ON RULE 144A, (C) PURSUANT TO OFFERS AND SALES THAT OCCUR
OUTSIDE THE UNITED STATES WITHIN THE MEANING OF REGULATION S UNDER THE
SECURITIES ACT, (D) TO AN INSTITUTIONAL "ACCREDITED INVESTOR" WITHIN
THE MEANING OF RULE 501(a)(1), (2), (3) OR (7) UNDER THE SECURITIES
ACT THAT IS AN INSTITUTIONAL ACCREDITED INVESTOR ACQUIRING THE
SECURITY FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF SUCH AN
INSTITUTIONAL ACCREDITED INVESTOR, IN EACH CASE IN A MINIMUM PRINCIPAL
AMOUNT OF THE SECURITIES OF $250,000 OF SECURITIES, FOR INVESTMENT
PURPOSES AND NOT WITH A VIEW TO OR FOR OFFER OR SALE IN CONNECTION
WITH ANY DISTRIBUTION IN VIOLATION OF THE SECURITIES ACT, (E) PURSUANT
TO RULE 144 UNDER THE SECURITIES ACT OR ANY OTHER AVAILABLE EXEMPTION
FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT, OR (F)
PURSUANT TO A REGISTRATION STATEMENT THAT HAS BEEN DECLARED EFFECTIVE
UNDER THE SECURITIES ACT, SUBJECT TO THE COMPANY'S AND THE TRUSTEE'S
RIGHT PRIOR TO ANY SUCH OFFER, SALE OR TRANSFER PURSUANT TO CLAUSES
(D) OR (E) TO REQUIRE THE DELIVERY OF AN OPINION OF COUNSEL,
CERTIFICATIONS AND/OR OTHER INFORMATION SATISFACTORY TO EACH OF THEM.
THIS LEGEND WILL BE REMOVED UPON THE REQUEST OF THE HOLDER AFTER THE
RESALE RESTRICTION TERMINATION DATE."
(B) the Regulation S Global Note shall bear the following legend
(the "Regulation S Legend") on the face thereof:
"THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE U.S. SECURITIES ACT
OF 1933, AS AMENDED (THE "SECURITIES ACT") AND MAY NOT BE OFFERED OR
SOLD WITHIN THE UNITED STATES OR TO, OR FOR THE ACCOUNT OR BENEFIT OF
U.S. PERSONS (1) AS PART OF THEIR DISTRIBUTION AT ANY TIME OR (2)
OTHERWISE UNTIL 40 DAYS AFTER THE LATER OF THE COMMENCEMENT OF THE
OFFERING OF THE SECURITY AND THE DATE OF ORIGINAL ISSUANCE OF THE
SECURITY (THE "RESTRICTED PERIOD"), EXCEPT IN ACCORDANCE WITH
REGULATION S OR RULE 144A UNDER THE SECURITIES ACT OR ANY OTHER
AVAILABLE EXEMPTION FROM REGISTRATION UNDER THE SECURITIES ACT."
(C) The Global Notes, whether or not an Initial Note, shall bear
the following legend on the face thereof:
"UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE
OF THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), NEW
YORK, NEW YORK, TO THE COMPANY OR ITS AGENT FOR REGISTRATION OF
TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS
REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS
MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN
AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE
HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH
AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
TRANSFERS OF THIS GLOBAL SECURITY SHALL BE LIMITED TO TRANSFERS IN
WHOLE, BUT NOT IN PART, TO NOMINEES OF DTC OR TO A SUCCESSOR THEREOF
OR SUCH SUCCESSOR'S NOMINEE AND TRANSFERS OF PORTIONS OF THIS GLOBAL
SECURITY SHALL BE LIMITED TO TRANSFERS MADE IN ACCORDANCE WITH THE
RESTRICTIONS SET FORTH IN THE INDENTURE REFERRED TO ON THE REVERSE
HEREOF."
(d) Book-Entry Provisions. (i) This Section 2.1(d) shall apply
only to Global Notes deposited with the Trustee, as custodian for DTC.
(ii) Each Global Note initially shall (x) be registered in the
name of DTC for such Global Note or the nominee of DTC, (y) be delivered to
the Trustee as custodian for DTC and (z) bear legends as set forth in
Section 2.1(c).
(iii) Members of, or participants in, DTC ("Agent Members") shall
have no rights under this Indenture with respect to any Global Note held on
their behalf by DTC or by the Trustee as the custodian of DTC or under such
Global Note, and DTC may be treated by the Company, the Trustee and any
agent of the Company or the Trustee as the absolute owner of such Global
Note for all purposes whatsoever. Notwithstanding the foregoing, nothing
herein shall prevent the Company, the Trustee or any agent of the Company
or the Trustee from giving effect to any written certification, proxy or
other authorization furnished by DTC or impair, as between DTC and its
Agent Members, the operation of customary practices of DTC governing the
exercise of the rights of a holder of a beneficial interest in any Global
Note.
(iv) In connection with any transfer of a portion of the
beneficial interest in a Global Note pursuant to subsection (e) of this
Section 2.1 to beneficial owners who are required to hold Definitive Notes,
the Securities Custodian shall reflect on its books and records the date
and a decrease in the principal amount of such Global Note in an amount
equal to the principal amount of the beneficial interest in the Global Note
to be transferred, and the Company shall execute, and the Trustee shall
authenticate and deliver, one or more Definitive Notes of like tenor and
amount.
(v) In connection with the transfer of an entire Global Note to
beneficial owners pursuant to subsection (e) of this Section 2.1, such
Global Note shall be deemed to be surrendered to the Trustee for
cancellation, and the Company shall execute, and the Trustee shall
authenticate and deliver, to each beneficial owner identified by DTC in
exchange for its beneficial interest in such Global Note, an equal
aggregate principal amount of Definitive Notes of authorized denominations.
(vi) The registered holder of a Global Note may grant proxies and
otherwise authorize any person, including Agent Members and persons that
may hold interests through Agent Members, to take any action which a Holder
is entitled to take under this Indenture or the Notes.
(e) Definitive Notes. (i) Except as provided below, owners of
beneficial interests in Global Notes shall not be entitled to receive
certificated Notes ("Definitive Notes"). If required to do so pursuant to
any applicable law or regulation, beneficial owners may obtain Definitive
Notes in exchange for their beneficial interests in a Global Note upon
written request in accordance with DTC's and the Registrar's procedures. In
addition, Definitive Notes shall be transferred to all beneficial owners in
exchange for their beneficial interests in a Global Note if (a) DTC
notifies the Company that it is unwilling or unable to continue as
depositary for such Global Note or DTC ceases to be a clearing agency
registered under the Exchange Act, at a time when DTC is required to be so
registered in order to act as depositary, and in each case a successor
depositary is not appointed by the Company within 90 days of such notice
or, (b) the Company executes and delivers to the Trustee and Registrar an
Officers' Certificate stating that such Global Note shall be so
exchangeable or (c) an Event of Default has occurred and is continuing and
the Registrar has received a request from DTC.
(ii) Any Definitive Note delivered in exchange for an interest in
a Global Note pursuant to Section 2.1(d)(iv) or (v) shall, except as
otherwise provided by Section 2.6(g), bear the applicable legend regarding
transfer restrictions applicable to the Definitive Note set forth in
Section 2.1(c).
SECTION 2.2. Execution and Authentication. An Officer of the
Company shall sign the Notes for the Company by manual or facsimile
signature and may be imprinted or otherwise reproduced.
If an Officer whose signature is on a Note no longer holds that
office at the time the Trustee authenticates the Note, the Note shall be
valid nevertheless.
A Note shall not be valid until an authorized signatory of the
Trustee manually authenticates the Note. The signature of the Trustee on a
Note shall be conclusive evidence that such Note has been duly and validly
authenticated and issued under this Indenture.
At any time and from time to time after the execution and
delivery of this Indenture, the Trustee shall authenticate and make
available for delivery: (1) Initial Notes for original issue on the Issue
Date in an aggregate principal amount of $225,000,000, (2) any Additional
Notes for original issue from time to time after the Issue Date in such
principal amounts as set forth in Section 2.15 and (3) any Exchange Notes
for issue only in exchange for a like principal amount of Initial Notes, in
each case upon a written order of the Company signed by two Officers of the
Company (a "Company Order"). Such Company Order shall specify the amount of
the Notes to be authenticated and the date on which the original issue of
Notes is to be authenticated and whether the Notes are to be Initial Notes
or Exchange Notes. The aggregate principal amount of Initial Notes which
may be authenticated and delivered under this Indenture is limited to
$225,000,000. Additionally, the Company may from time to time, without
notice to or consent of the Holders, issue such additional principal
amounts of Additional Notes as may be issued and authenticated pursuant to
clause (2) of this paragraph, and Notes authenticated and delivered upon
registration or transfer of, or in exchange for, or in lieu of, other Notes
of the same class pursuant to Section 2.6, Section 2.9, Section 2.10,
Section 3.6, Section 9.5 and except for transactions similar to the
Registered Exchange Offer.
The Trustee may appoint an agent (the "Authenticating Agent")
reasonably acceptable to the Company to authenticate the Notes. Unless
limited by the terms of such appointment, any such Authenticating Agent may
authenticate Notes whenever the Trustee may do so. Each reference in this
Indenture to authentication by the Trustee includes authentication by such
agent.
In case the Company, pursuant to Article V, shall be consolidated
or merged with or into any other Person or shall convey, transfer, lease or
otherwise dispose of its properties and assets substantially as an entirety
to any Person, and the successor Person resulting from such consolidation,
or surviving such merger, or into which the Company shall have been merged,
or the Person which shall have received a conveyance, transfer, lease or
other disposition as aforesaid, shall have executed an indenture
supplemental hereto (if not otherwise a party to the Indenture) with the
Trustee pursuant to Article V, any of the Notes authenticated or delivered
prior to such consolidation, merger, conveyance, transfer, lease or other
disposition may, from time to time, at the request of the successor Person,
be exchanged for other Notes executed in the name of the successor Person
with such changes in phraseology and form as may be appropriate, but
otherwise in substance of like tenor as the Notes surrendered for such
exchange and of like principal amount; and the Trustee, upon Company Order
of the successor Person, shall authenticate and deliver Notes as specified
in such order for the purpose of such exchange. If Notes shall at any time
be authenticated and delivered in any new name of a successor Person (if
other than the Company) pursuant to this Section 2.2 in exchange or
substitution for or upon registration of transfer of any Notes, such
successor Person (if other than the Company), at the option of the Holders
but without expense to them, shall provide for the exchange of all Notes at
the time outstanding for Notes authenticated and delivered in such new
name.
SECTION 2.3. Registrar and Paying Agent. The Company shall
maintain an office or agency where Notes may be presented for registration
of transfer or for exchange (the "Registrar") and an office or agency where
Notes may be presented for payment (the "Paying Agent"). The Registrar
shall keep a register of the Notes and of their transfer and exchange. The
Company may have one or more additional paying agents. The term "Paying
Agent" includes any such additional paying agent. The Company may change
the Registrar or appoint one or more co-Registrars without notice.
In the event the Company shall retain any Person not a party to
this Indenture as an agent hereunder, the Company shall enter into an
appropriate agency agreement with any Registrar or Paying Agent not a party
to this Indenture, which shall incorporate the terms of the Trust Indenture
Act. The agreement shall implement the provisions of this Indenture that
relate to such agent. The Company shall notify the Trustee of the name and
address of each such agent. If the Company fails to maintain a Registrar or
Paying Agent, the Trustee shall act as such and shall be entitled to
appropriate compensation therefor pursuant to Section 7.7. The Company
shall be responsible for the fees and compensations of all agents appointed
or approved by it. Either the Company or any of its domestically
incorporated wholly owned Subsidiaries may act as Paying Agent.
The Company initially appoints the Trustee as Registrar and
Paying Agent for the Notes.
SECTION 2.4. Paying Agent To Hold Money in Trust. By no later
than 11:00 a.m. (New York City time) on the date on which any principal or
interest (including any Additional Interest) on any Note is due and
payable, the Company shall deposit with the Paying Agent a sum sufficient
to pay such principal or interest (including any Additional Interest) when
due. The Company shall require each Paying Agent (other than the Trustee)
to agree in writing that such Paying Agent shall hold in trust for the
benefit of Noteholders or the Trustee all money held by such Paying Agent
for the payment of principal of or interest (including any Additional
Interest) on the Notes and shall notify the Trustee in writing of any
default by the Company in making any such payment. If either of the Company
or any of its Subsidiaries acts as Paying Agent, it shall segregate the
money held by it as Paying Agent and hold it as a separate trust fund. The
Company at any time may require a Paying Agent (other than the Trustee) to
pay all money held by it to the Trustee and to account for any funds
disbursed by such Paying Agent. Upon complying with this Section 2.4, the
Paying Agent (if other than the Company or a Subsidiary) shall have no
further liability for the money delivered to the Trustee. Upon any
bankruptcy, reorganization or similar proceeding with respect to the
Company, the Trustee shall serve as Paying Agent for the Notes.
SECTION 2.5. Noteholder Lists. The Trustee shall preserve in as
current a form as is reasonably practicable the most recent list available
to it of the names and addresses of Noteholders. If the Trustee is not the
Registrar, the Company shall cause the Registrar to furnish to the Trustee,
in writing at least five Business Days before each interest payment date
and at such other times as the Trustee may request in writing, a list in
such form and as of such date as the Trustee may reasonably require of the
names and addresses of Noteholders.
SECTION 2.6. Transfer and Exchange.
Notwithstanding any other provision of this Indenture or the
Notes (other than Section 2.1(e) hereof), transfers and exchanges of Notes
and beneficial interests in a Global Note of the kinds specified in this
Section 2.6 shall be made only in accordance with this Section 2.6.
(a) Rule 144A Global Note to Regulation S Global Note. If the
owner of a beneficial interest in the Rule 144A Global Note wishes at any
time to transfer such interest to a person who wishes to take delivery
thereof in the form of a beneficial interest in the Regulation S Global
Note, such transfer may be effected only in accordance with the provisions
of this Section 2.6(a), and subject to the Applicable Procedures (as
defined below). Upon receipt by the Trustee, as Registrar, of (A) an order
given by DTC or its authorized representative directing that a beneficial
interest in the Regulation S Global Note in a specified principal amount be
credited to a specified Agent Member's account and that a beneficial
interest in the Rule 144A Global Note in an equal principal amount be
debited from another specified Agent Member's account and (B) a Regulation
S Certificate (a "Regulation S Certificate"), the form of which is set
forth in Exhibit C hereto, satisfactory to the Trustee and duly executed by
the owner of such beneficial interest in the Rule 144A Global Note and
increase the principal amount of the Regulation S Global Note by such
specified principal amount as provided in this Section 2.6. "Applicable
Procedures" means, with respect to any transfer or transaction involving a
Global Note or beneficial interest therein, the rules and procedures of
DTC, Euroclear System and Clearstream Banking, Societe Anonyme or their
successors or assigns, in each case, to the extent applicable to such
transaction and as in effect from time to time.
(b) Regulation S Global Note to Rule 144A Global Note. If the
owner of a beneficial interest in the Regulation S Global Note wishes at
any time to transfer such interest to a person who wishes to take delivery
thereof in the form of a beneficial interest in the Rule 144A Global Note,
such transfer may be effected only in accordance with this Section 2.6(b)
and subject to the Applicable Procedures. Upon receipt by the Trustee, as
Registrar, of (A) an order given by DTC or its authorized representative
directing that a beneficial interest in the Rule 144A Global Note in a
specified principal amount be credited to a specified Agent Member's
account and that a beneficial interest in the Regulation S Global Note in
an equal principal amount be debited from another specified Agent Member's
account and (B) if such transfer is to occur during (but only during) the
Restricted Period, a Rule 144A Certificate (a "Rule 144A Certificate"), the
form of which is set forth in Exhibit D hereto, satisfactory to the Trustee
and duly executed by the owner of such beneficial interest in the
Regulation S Global Note or his attorney duly authorized in writing, then
the Trustee, as Registrar, shall reduce the principal amount of the
Regulation S Global Note and increase the principal amount of the Rule 144A
Global Note by such specified principal amount as provided in this Section
2.6.
(c) Rule 144A Non-Global Note to Rule 144A Global Note or
Regulation S Global Note. If the holder of a Rule 144A Note (other than a
Global Note) wishes at any time to transfer all or any portion of such Note
to a person who wishes to take delivery thereof in the form of a beneficial
interest in the Rule 144A Global Note or the Regulation S Global Note, such
transfer may be effected only in accordance with the provisions of this
Section 2.6(c) and subject to the Applicable Procedures. Upon receipt by
the Trustee, as Registrar, of (A) such Note as provided in Section 2.3 and
instructions satisfactory to the Trustee directing that a beneficial
interest in the Rule 144A Global Note or Regulation S Global Note in a
specified principal amount not greater than the principal amount of such
Note be credited to a specified Agent Member's account and (B) a Rule 144A
Certificate, if the specified account is to be credited with a beneficial
interest in the Rule 144A Global Note, or a Regulation S Certificate, if
the specified account is to be credited with a beneficial interest in the
Regulation S Global Note, in either case, satisfactory to the Trustee and
duly executed by such holder or his attorney duly authorized in writing,
then the Trustee, as Registrar, shall cancel such Note (and issue a new
Note in respect of any untransferred portion thereof) as provided in
Section 2.3 and increase the principal amount of the Rule 144A Global Note
or the Regulation S Global Note, as the case may be, by the specified
principal amount as provided in this Section 2.6.
(d) Regulation S Non-Global Note to Rule 144A Global Note or
Regulation S Global Note. If the holder of a Regulation S Note (other than
a Global Note) wishes at any time to transfer all or any portion of such
Note to a person who wishes to take delivery thereof in the form of a
beneficial interest in the Rule 144A Global Note or the Regulation S Global
Note, such transfer may be effected only in accordance with this Section
2.6(d) and subject to the Applicable Procedures. Upon receipt by the
Trustee, as Registrar, of (A) such Note as provided in Section 2.3 and
instructions satisfactory to the Trustee directing that a beneficial
interest in the Rule 144A Global Note or Regulation S Global Note in a
specified principal amount not greater than the principal amount of such
Note be credited to a specified Agent Member's account and (B) if the
transfer is to occur during (but only during) the Restricted Period and the
specified account is to be credited with a beneficial interest in the Rule
144A Global Note, a Rule 144A Certificate satisfactory to the Trustee and
duly executed by such holder or his attorney duly authorized in writing,
then the Trustee, as Registrar, shall cancel such Note (and issue a new
Note in respect of any untransferred portion thereof) as provided in
Section 2.3 and increase the principal amount of the Rule 144A Global Note
or the Regulation S Global Note, as the case may be, by the specified
principal amount as provided in this Section 2.6.
(e) Non-Global Note to Non-Global Note. A Note that is not a
Global Note may be transferred, in whole or in part, to a person who takes
delivery in the form of another Note that is not a Global Note in
accordance with Section 2.3; provided, that if the Note to be transferred
in whole or in part is (I) a Rule 144A Note or (II) a Regulation S Note and
the transfer is to occur during (but only during) the Restricted Period,
then, in each case, the Trustee, as Registrar, shall have received (A) a
Rule 144A Certificate, satisfactory to the Trustee and duly executed by the
transferor holder or his attorney duly authorized in writing, in which case
the transferee holder shall take delivery in the form of a Rule 144A Note,
or (B) a Regulation S Certificate, satisfactory to the Trustee and duly
executed by the transferor holder or his attorney duly authorized in
writing, in which case the transferee holder shall take delivery in the
form of a Regulation S Note (subject in each case to Section 2.6(g)).
(f) Exchange between Global Note and Non-Global Note. A
beneficial interest in a Global Note may be exchanged for a Note that is
not a Global Note as provided in Section 2.1(e); provided, that if such
interest is a beneficial interest in (I) the Rule 144A Global Note or (II)
the Regulation S Global Note and such exchange is to occur during the
Restricted Period, then, in each case, such interest shall be exchanged for
a Rule 144A Note (subject in each case to Section 2.6(g)). A Note that is
not a Global Note may be exchanged for a beneficial interest in a Global
Note only if (A) such exchange occurs in connection with a transfer
effected in accordance with Section 2.6(c) or (d) herein or (B) such Note
is a Regulation S Note and such exchange occurs after the Restricted
Period.
(g) Restrictive Notes Legend. Upon the transfer, exchange or
replacement of Notes not bearing a Restrictive Notes Legend, the Registrar
shall deliver Notes that do not bear a Restrictive Notes Legend. Upon the
transfer, exchange or replacement of Notes bearing a Restrictive Notes
Legend, the Registrar shall deliver only Notes that bear a Restrictive
Notes Legend unless there is delivered to the Registrar an Opinion of
Counsel to the effect that neither such legend nor the related restrictions
on transfer are required in order to maintain compliance with the
provisions of the Securities Act.
(h) The Company shall deliver to the Trustee an Officers'
Certificate setting forth the Resale Restriction Termination Date and the
Restricted Period.
The Registrar shall retain copies of all letters, notices and
other written communications received pursuant to Section 2.1 or this
Section 2.6. The Company shall have the right to inspect and make copies of
all such letters, notices or other written communications at any reasonable
time upon the giving of reasonable written notice to the Registrar.
(i) Obligations with Respect to Transfers and Exchanges of Notes.
(i) To permit registrations of transfers and exchanges, the
Company shall, subject to the other terms and conditions of this
Article II, execute and the Trustee shall authenticate Definitive
Notes and Global Notes at the Registrar's or co-registrar's request.
(ii) No service charge shall be made to a Holder for any
registration of transfer or exchange, but the Company may require
payment of a sum sufficient to cover any transfer tax, assessments, or
similar governmental charge payable in connection therewith (other
than any such transfer taxes, assessments or similar governmental
charges payable upon exchange or transfer pursuant to Sections 3.6 or
9.5.
(iii) The Registrar or co-registrar shall not be required to
register the transfer of or exchange of any Note for a period
beginning (1) 15 days before the mailing of a notice of an offer to
repurchase or redeem Notes and ending at the close of business on the
day of such mailing or (2) 15 days before an interest payment date and
ending on such interest payment date.
(iv) Prior to the due presentation for registration of
transfer of any Note, the Company, the Trustee, the Paying Agent, the
Registrar or any co-registrar may deem and treat the person in whose
name a Note is registered as the absolute owner of such Note for the
purpose of receiving payment of principal of and interest on such Note
and for all other purposes whatsoever, whether or not such Note is
overdue, and none of the Company, the Trustee, the Paying Agent, the
Registrar or any co-registrar shall be affected by notice to the
contrary.
(v) Any Definitive Note delivered in exchange for an
interest in a Global Note pursuant to Section 2.1(d) shall, except as
otherwise provided by Section 2.6(g), bear the applicable legend
regarding transfer restrictions applicable to the Definitive Note set
forth in Section 2.1(c).
(vi) All Notes issued upon any transfer or exchange pursuant
to the terms of this Indenture shall be the valid and legally binding
obligation of the Company, shall evidence the same debt and shall be
entitled to the same benefits under this Indenture as the Notes
surrendered upon such transfer or exchange.
(vii) All certificates, certifications and opinions of
counsel required to be submitted to the Registrar or any co-registrar
pursuant to this Section 2.6 to effect any transfer or exchange may be
submitted by facsimile transmission, with the original to follow by
first class mail or hand delivery.
(j) No Obligation of the Trustee. (i) The Trustee shall have no
responsibility or obligation to any beneficial owner of a Global Note, a
member of, or a participant in, DTC or other Person in respect of any
aspect of the records, or for maintaining, supervising or reviewing any
records, relating to beneficial ownership interests of a Global Note, with
respect to the accuracy of the records of DTC or its nominee or of any
participant or member thereof, with respect to any ownership interest in
the Notes or with respect to the delivery to any participant, member,
beneficial owner or other Person (other than DTC) of any notice (including
any notice of redemption) or the payment of any amount or delivery of any
Notes (or other security or property) under or with respect to such Notes.
All notices and communications to be given to the Holders and all payments
to be made to Holders in respect of the Notes shall be given or made only
to or upon the order of the registered Holders (which shall be DTC or its
nominee in the case of a Global Note). The rights of beneficial owners in
any Global Note shall be exercised only through DTC subject to the
applicable rules and procedures of DTC. The Trustee and the Company may
conclusively rely and shall be fully protected in relying upon information
furnished by DTC with respect to its members, participants and any
beneficial owners.
(ii) The Trustee shall have no obligation or duty to monitor,
determine or inquire as to compliance with any restrictions on transfer
imposed under this Indenture or under applicable law with respect to any
transfer of any interest in any Note (including any transfers between or
among Agent Members or beneficial owners of interests in any Global Note)
other than to require delivery of such certificates and other documentation
or evidence as are expressly required by, and to do so if and when
expressly required by, the terms of this Indenture, and to examine the same
to determine substantial compliance as to form with the express
requirements hereof.
(k) Transfer and Exchange of Global Notes. A Global Note may not
be transferred as a whole except by DTC to a nominee of DTC, by a nominee
of DTC to DTC or to another nominee of DTC, or by the DTC or any such
nominee to a successor depositary or to a nominee of such successor
depositary.
Neither the Trustee nor any agent thereof shall have any
responsibility for any actions taken or not taken by DTC or any successor
depositary.
(l) Accrual of Interest on the Exchange Note; Exchange of Exchange
Notes.
(i) Interest on any Exchange Note shall accrue from the
dates provided in Exhibit B.
(ii) Subject to Section 2.1(e), upon the occurrence of the
Registered Exchange Offer in accordance with the Registration Rights
Agreement, the Company shall issue and, upon receipt of an
authentication order in accordance with Section 2.2, the Trustee shall
authenticate one or more Exchange Global Notes in an aggregate
principal amount equal to the principal amount of the beneficial
interests in the Initial Notes or Additional Notes tendered for
acceptance by Persons that certify in the applicable letters of
transmittal that (x) they are not broker-dealers, (y) they are not
participating in a distribution of the Exchange Notes and (z) they are
not affiliates (as defined in Rule 144 under the Securities Act) of
the Company, and accepted for exchange in the exchange offer.
Concurrently with the issuance of such Notes, the Trustee shall cause
the aggregate principal amount of the applicable Initial Notes in the
form of Global Notes and/or Additional Notes in the form of Global
Notes to be reduced accordingly.
SECTION 2.7. Form of Certificates to be Delivered in Connection
with Transfers Pursuant to Regulation S and Rule 144A.
Attached hereto as Exhibit C and Exhibit D are forms of
certificates to be delivered in connection with transfers pursuant to
Regulation S and Rule 144A, respectively.
SECTION 2.8. Business Days. If a payment date is on a date that
is not a Business Day, payment shall be made on the next succeeding day
that is a Business Day, and no interest shall accrue on such payment for
the intervening period. If a regular record date is on a day that is not a
Business Day, the record date shall not be affected.
SECTION 2.9. Replacement Notes. If a mutilated Note is
surrendered to the Registrar or if the Holder of a Note shall provide the
Company and the Trustee with evidence to their satisfaction that the Note
has been lost, destroyed or wrongfully taken, the Company shall issue and
the Trustee shall authenticate a replacement Note if the requirements of
Section 8-405 of the Uniform Commercial Code are met and the Holder
satisfies any other reasonable requirements of the Trustee. In addition,
such Holder shall furnish an indemnity or surety bond sufficient in the
judgment of the Company and the Trustee to protect the Company, the
Trustee, the Paying Agent and the Registrar from any loss which any of them
may suffer if a Note is replaced. The Company and the Trustee may charge
the Holder for their expenses in replacing a Note, including reasonable
fees and expenses of counsel. Every replacement Note is an additional
obligation of the Company.
SECTION 2.10. Outstanding Notes. Notes outstanding at any time
are all Notes authenticated by the Trustee except for those canceled, those
delivered for cancellation and those described in this Section 2.10 as not
outstanding. A Note does not cease to be outstanding because the Company or
an Affiliate of the Company holds the Note.
If a Note is replaced pursuant to Section 2.9, it ceases to be
outstanding unless the Trustee and the Company receive proof satisfactory
to them that the replaced Note is held by a bona fide purchaser.
If the Paying Agent segregates and holds in trust, in accordance
with this Indenture, on a redemption date or maturity date money sufficient
to pay all principal and interest payable on that date with respect to the
Notes (or portions thereof) to be redeemed or maturing, as the case may be,
then on and after that date such Notes (or portions thereof) cease to be
outstanding and interest on them ceases to accrue.
SECTION 2.11. Temporary Notes. Until definitive Notes are ready
for delivery, the Company may prepare and the Trustee shall authenticate
and deliver temporary Notes. Temporary Notes shall be substantially in the
form of definitive Notes but may have variations that the Company considers
appropriate for temporary Notes. Without unreasonable delay, the Company
shall prepare and the Trustee shall authenticate and deliver definitive
Notes. After the preparation of definitive Notes, the temporary Notes shall
be exchangeable for definitive Notes upon surrender of the temporary Notes
at any office or agency maintained by the Company for that purpose and such
exchange shall be without charge to the Holder. Upon surrender for
cancellation of any one or more temporary Notes, the Company shall execute,
and the Trustee shall authenticate and deliver in exchange therefor, one or
more definitive Notes representing an equal principal amount of Notes.
Until so exchanged, the Holder of temporary Notes shall in all respects be
entitled to the same benefits under this Indenture as a Holder of
definitive Notes.
SECTION 2.12. Cancellation. The Company at any time may deliver
Notes to the Trustee for cancellation. The Registrar and the Paying Agent
shall forward to the Trustee for cancellation any Notes surrendered to them
for registration of transfer or exchange or payment. The Trustee and no one
else shall cancel (subject to the record retention requirements of the
Exchange Act) all Notes surrendered for registration of transfer or
exchange, payment or cancellation and, upon the request of the Company,
deliver a certificate of such cancellation to the Company. The Company may
not issue new Notes to replace Notes it has redeemed, paid or delivered to
the Trustee for cancellation, which shall not prohibit the Company from
issuing any Additional Notes, or any Exchange Notes in exchange for Initial
Notes. All cancelled Notes held by the Trustee may be disposed of by the
Trustee in accordance with its then customary practices and procedures,
unless the Company directs otherwise. The Trustee shall provide to the
Company a list of all Notes that have been cancelled from time to time as
requested in writing by the Company.
SECTION 2.13. Defaulted Interest. If the Company defaults in a
payment of interest on the Notes, the Company shall pay defaulted interest
plus interest on such defaulted interest to the extent lawful at the rate
specified therefor in the Notes in any lawful manner. The Company may pay
the defaulted interest to the Persons who are Noteholders on a subsequent
special record date. The Company shall fix or cause to be fixed any such
special record date and payment date to the reasonable satisfaction of the
Trustee which specified record date shall not be less than 10 days prior to
the payment date for such defaulted interest and shall promptly mail or
cause to be mailed to each Noteholder a notice that states the special
record date, the payment date and the amount of defaulted interest to be
paid. The Company shall notify the Trustee in writing of the amount of
defaulted interest proposed to be paid on each Note 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 so deposited to be held in trust for the
benefit of the Person entitled to such defaulted interest as provided in
this Section 2.13.
SECTION 2.14. CUSIP Numbers, etc. The Company in issuing the
Notes may use "CUSIP" or "ISIN" numbers and/or other similar numbers (if
then generally in use), and, if so, the Trustee shall use "CUSIP" and/or
"ISIN" numbers in notices of redemption or exchange as a convenience to
Holders; provided, however, that any such notice may state that no
representation is made as to the correctness of such numbers either as
printed on the Notes or as contained in any notice of a redemption or
exchange and that reliance may be placed only on the other identification
numbers printed on the Notes, and any such redemption or exchange shall not
be affected by any defect in or omission of such numbers. The Company shall
promptly notify the Trustee of any change in the CUSIP numbers and/or other
similar numbers.
SECTION 2.15. Issuance of Additional Notes. The Company shall be
entitled to issue, from time to time, Additional Notes under this Indenture
which shall have identical terms as the Initial Notes issued on the Issue
Date or the Exchange Notes exchanged therefor (in each case, other than
with respect to the date of issuance, issue price and amount of interest
payable on the first payment date applicable thereto), as the case may be.
With respect to any Additional Notes, the Company shall set forth
in a resolution of the Board of Directors and an Officers' Certificate, a
copy of each shall be delivered to the Trustee, the following information:
(i) the aggregate principal amount of such Additional Notes to be
authenticated and delivered pursuant to this Indenture;
(ii) the issue price, the issue date and the "CUSIP" and "ISIN"
number of any such Additional Notes and the amount of interest payable on
the first payment date applicable thereto;
(iii) whether such Additional Notes shall be transfer restricted
securities and issued in the form of Initial Notes as set forth in Exhibit
A to this Indenture or shall be issued in the form of Exchange Notes as set
forth in Exhibit B to this Indenture; and
(iv) if applicable, the Resale Restriction Termination Date and
the Restricted Period for such Additional Notes.
SECTION 2.16. One Class of Notes. The Initial Notes, any
Additional Notes and the Exchange Notes shall vote and consent together on
all matters as one class; and none of the Initial Notes, any Additional
Notes and the Exchange Notes shall have the right to vote or consent as a
separate class on any matter. The Initial Notes, any Additional Notes and
the Exchange Notes shall together be deemed to constitute a single class or
series for all purposes under this Indenture.
ARTICLE III
Redemption
SECTION 3.1. Notices to Trustee. If the Company elects to redeem
Notes pursuant to Section 5 of the Notes, it shall notify the Trustee in
writing of the redemption date and the principal amount of Notes to be
redeemed.
The Company shall give each notice to the Trustee provided for in
this Section 3.1 at least 60 days (45 days in the case of redemption of all
the Notes) before the redemption date unless the Trustee consents to a
shorter period. Such notice shall be accompanied by an Officers'
Certificate from the Company to the effect that such redemption shall
comply with the conditions herein. The record date relating to such
redemption shall be selected by the Company and set forth in the related
notice given to the Trustee, which record date shall be not less than 15
days prior to the date selected for redemption by the Company.
SECTION 3.2. Selection of Notes to be Redeemed. If fewer than all
the Notes then outstanding are to be redeemed, the Trustee shall select the
Notes to be redeemed by a method that complies with applicable legal and
securities exchange requirements, if any, and that the Trustee considers,
in its discretion, to be fair and appropriate in accordance with methods
generally used at the time of selection by fiduciaries in similar
circumstances. The Trustee shall make the selection from outstanding Notes
not previously called for redemption. The Trustee may select for redemption
portions of the principal of Notes that have denominations larger than
$5,000. Notes and portions thereof that the Trustee selects shall be in
amounts of $5,000 or integral multiples of $1,000 in excess thereof.
Provisions of this Indenture that apply to Notes called for redemption also
apply to portions of Notes called for redemption. The Trustee shall
promptly notify the Company of the Notes or portions of Notes to be
redeemed.
SECTION 3.3. Notice of Redemption. At least 30 days but not more
than 60 days before a date for redemption of Notes, notice of redemption
shall be mailed by first-class mail to each Holder of Notes to be redeemed
at its registered address.
The notice shall identify the Notes to be redeemed and shall
state:
(1) the redemption date;
(2) the redemption price (or the method of calculating such
price) and the amount of accrued interest to be paid, if any;
(3) the name and address of the Paying Agent;
(4) that Notes called for redemption must be surrendered to
the Paying Agent to collect the redemption price plus accrued and
unpaid interest, if any;
(5) if fewer than all the outstanding Notes are to be
redeemed, the Bond No. (if certificated) and principal amounts of the
particular Notes to be redeemed;
(6) that, unless the Company defaults in making such
redemption payment, interest on Notes (or portion thereof) called for
redemption ceases to accrue on and after the redemption date;
(7) the CUSIP number, or any similar number, if any, printed
on the Notes being redeemed; and
(8) that no representation is made as to the correctness or
accuracy of the CUSIP number, or any similar number, if any, listed in
such notice or printed on the Notes.
At the Company's written request (which may be rescinded or
revoked at any time prior to the time at which the Trustee shall have given
such notice to the Holders), the Trustee shall give the notice of
redemption in the name of the Company and at the Company's expense. In such
event, the Company shall provide the Trustee with the information required
by this Section 3.3. The notice, if mailed in the manner herein provided,
shall be conclusively presumed to have been given, whether or not the
Holder receives such notice. In any case, failure to give such notice by
mail or any defect in the notice to the Holder of any Note designated for
redemption as a whole or in part shall not affect the validity of the
proceedings for the redemption of any other Notes.
SECTION 3.4. Effect of Notice of Redemption. Once notice of
redemption is mailed in accordance with Section 3.3, Notes called for
redemption shall become due and payable on the redemption date and at the
redemption price as stated in the notice. Upon surrender to the Paying
Agent on or after the redemption date, such Notes shall be paid at the
redemption price stated in the notice, plus accrued and unpaid interest to
the redemption date; provided, that the Company shall have deposited the
redemption price with the Paying Agent or the Trustee on or before 11:00
a.m. (New York City time) on the date of redemption; provided further that
if the redemption date is after a regular record date and on or prior to
the interest payment date, the accrued and unpaid interest shall be payable
to the Noteholder of the redeemed Notes registered on the relevant record
date. Failure to give notice or any defect in the notice to any Holder
shall not affect the validity of the notice to any other Holder.
SECTION 3.5. Deposit of Redemption Price. By no later than 11:00
a.m. (New York City time) on the date of redemption, the Company shall
deposit with the Paying Agent (or, if the Company or any of its
Subsidiaries is the Paying Agent, shall segregate and hold in trust) an
amount of money sufficient to pay the redemption price of and accrued and
unpaid interest on all Notes to be redeemed on that date other than Notes
or portions of Notes called for redemption which are owned by the Company
or a Subsidiary and have been delivered by the Company or such Subsidiary
to the Trustee for cancellation. All money, if any, earned on funds held by
the Paying Agent shall be remitted to the Company. In addition, the Paying
Agent shall promptly return to the Company any money deposited with the
Paying Agent by the Company in excess of the amounts necessary to pay the
redemption price of, and accrued interest, if any, on, all Notes to be
redeemed.
Unless the Company defaults in the payment of such redemption
price, interest on the Notes or portions of Notes to be redeemed shall
cease to accrue on and after the applicable redemption date, whether or not
such Notes are presented for payment.
SECTION 3.6. Notes Redeemed in Part. Upon surrender of a Note
that is redeemed in part, the Company shall execute and the Trustee shall
authenticate for the Holder thereof (at the Company's expense) a new Note,
equal in a principal amount to the unredeemed portion of the Note
surrendered; provided that each new Note shall be in a principal amount of
$5,000 or an integral multiple of $1,000 in excess thereof.
ARTICLE IV
Covenants
SECTION 4.1. Payment of Notes. The Company covenants and agrees
that it shall promptly pay the principal of and interest (including
Additional Interest) on the Notes on the dates and in the manner provided
in the Notes and in this Indenture. Principal and interest (including
Additional Interest) shall be considered paid on the date due if, on or
before 11:00 a.m. (New York City time) on such date, the Trustee or the
Paying Agent (or, if the Company or any of its Subsidiaries is the Paying
Agent, the segregated account or separate trust fund maintained by the
Company or such Subsidiary pursuant to Section 2.4) holds in accordance
with this Indenture money sufficient to pay all principal and interest
(including Additional Interest) then due. If any Additional Interest is
due, the Company shall deliver an Officers' Certificate to the Trustee
setting forth the Additional Interest per $1,000 aggregate principal amount
of Notes.
The Company shall pay interest on overdue principal at the rate
specified therefor in the Notes, and it shall pay interest on overdue
installments of interest at the same rate to the extent lawful as provided
in Section 2.13.
Notwithstanding anything to the contrary contained in this
Indenture, the Company or the Paying Agent may, to the extent it is
required to do so by law, deduct or withhold income or other similar taxes
imposed by the United States of America or other domestic or foreign taxing
authorities from principal or interest payments hereunder.
SECTION 4.2. Limitations on Liens. (a) So long as any Notes
remain outstanding, the Company shall not and shall not permit any of its
Restricted Subsidiaries to issue, assume or guarantee any Debt secured by
any Lien upon any Principal Property or upon any shares of Capital Stock or
Debt of any Restricted Subsidiary, unless the Company secures or causes
such Restricted Subsidiary to secure the Notes (together with, if the
Company shall so determine, any other Debt of the Company or the Restricted
Subsidiary, then existing or thereafter created, which is not subordinate
to the Notes) equally and ratably with such secured Debt, unless the
aggregate amount of all such secured Debt, together with all Attributable
Debt outstanding pursuant to Section 4.3(a) below, would not exceed 10% of
Consolidated Total Assets; provided, however, that the foregoing
restrictions shall not apply to:
(1) Liens on any Principal Property, shares of Capital Stock
or Debt existing at the date of this Indenture;
(2) Liens on Principal Property, shares of Capital Stock or
Debt of any corporation or other Person existing at the time such
corporation or other Person becomes a Restricted Subsidiary;
(3) Liens on any Principal Property, shares of Capital Stock
or Debt existing at the time of acquisition thereof by the Company or
a Restricted Subsidiary;
(4) Liens securing Debt of (x) a Restricted Subsidiary to
the Company or to another Restricted Subsidiary or (y) the Company to
a Restricted Subsidiary;
(5) Liens on Principal Property to secure the payment of all
or any part of the purchase price of such Principal Property upon the
acquisition of such Principal Property by the Company or a Restricted
Subsidiary or to secure any Debt incurred prior to, at the time of, or
within 180 days after, the later of the date of acquisition of such
Principal Property and the date such Principal Property is placed in
service, for the purpose of financing all or any part of the purchase
price thereof, or Liens to secure any Debt incurred for the purpose of
financing the cost to the Company or a Restricted Subsidiary of
construction, alteration or improvement to such acquired Principal
Property;
(6) Liens on Principal Property of a corporation or other
Person existing at the time such corporation or other Person is merged
or consolidated with the Company or a Restricted Subsidiary or at the
time of a sale, lease or other disposition of the Principal Property
of such corporation or other Person as an entirety or substantially as
an entirety to the Company or a Restricted Subsidiary; provided, that
such Lien as a result of such merger, consolidation, sale, lease or
other disposition is not extended to Principal Property owned by the
Company or such Restricted Subsidiary immediately prior thereto;
(7) mechanics' liens, tax liens, liens in favor of any
governmental body to secure progress, advance or other payments or the
acquisition of Principal Property from any governmental body pursuant
to contract or provision of statute;
(8) Liens associated with a sale or discount of accounts
receivable;
(9) Liens in favor of the Trustee in respect of expenses
incurred or services rendered pursuant to this Indenture;
(10) Liens to secure bonds posted in order to obtain stays
of judgments, attachments or orders in legal proceedings being
contested in good faith, including, without limitation, such Liens, if
any, in connection with legal proceedings as disclosed in the
Company's reports and filings under the Exchange Act;
(11) Liens securing industrial revenue bonds, pollution
control bonds or other similar tax-exempt bonds;
(12) any other liens, charges and encumbrances incidental to
construction, conduct of business or ownership of Principal Property
of the Company or any Restricted Subsidiary which were not incurred in
connection with borrowing money or obtaining advances or credits or
the acquisition of Principal Property and in the aggregate do not
materially impair the use of any Principal Property or which are being
contested in good faith by the Company or such Restricted Subsidiary;
or
(13) any extension, renewal or replacement (including
successive extensions, renewals or replacements), as a whole or in
part, of any Lien referred to in the foregoing clauses (1) to (12),
inclusive; provided, however, that (i) such extension, renewal or
replacement Liens shall be limited to all or part of the same
Principal Property, shares of Capital Stock or Debt that secured the
Liens extended, renewed or replaced (plus improvements on such
Principal Property) and (ii) the principal amount of Debt secured by
such Liens at such time is not increased.
SECTION 4.3. Limitation on Sale and Lease-Back Transactions
(a) The Company shall not, nor shall it permit any Restricted
Subsidiary to, enter into any Sale and Lease-Back Transaction with respect
to any Principal Property unless the aggregate amount of all Attributable
Debt with respect to such transactions, together with all Debt outstanding
pursuant to Section 4.2(a) above, would not exceed 10% of Consolidated
Total Assets; provided, however, that the foregoing restrictions shall not
apply to any Sale and Lease-Back Transaction if:
(1) the lease is for a period, including renewals, of not
more than three years;
(2) the transaction is between the Company and a Restricted
Subsidiary or between Restricted Subsidiaries;
(3) the purchaser's commitment is obtained within 180 days
before or after the acquisition, construction or placing in service of
the Principal Property;
(4) the Company or such Restricted Subsidiary would be
entitled pursuant to Section 4.2(a) to Incur Debt secured by a Lien on
such Principal Property to be leased back in an amount equal to the
Attributable Debt with respect to such Sale and Lease-Back Transaction
without equally and ratably securing the Notes; or
(5) the Company or such Restricted Subsidiary, within 180
days after the effective date of the transaction, applies (A) to the
retirement of Notes or other Debt of the Company or any Restricted
Subsidiary or (B) to the purchase of or investment in property,
securities or other assets which shall be used (or, in the case of any
securities, are Capital Stock issued by a company engaged) in the
Company's business or that of its Restricted Subsidiaries as then
being conducted, in each case, an amount equal to the net proceeds of
the sale or transfer of the Principal Property so sold and leased back
pursuant to such arrangement.
SECTION 4.4. Compliance Certificate. The Company shall deliver to
the Trustee within 120 days after the end of each fiscal year of the
Company an Officers' Certificate signed by its principal executive officer,
the principal financial officer or the principal accounting officer stating
that a review of the activities of the Company during such fiscal year has
been made under the supervision of such officer and whether or not such
officer knows of any Default or Event of Default that occurred during such
period. If he or she does, the certificate shall describe the Default or
Event of Default, its status and what action the Company is taking or
proposes to take with respect thereto.
SECTION 4.5. Maintenance of Office or Agency. The Company shall
maintain the office or agency required under Section 2.3. The Company shall
give prior 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 address of the
Trustee set forth in Section 10.2.
SECTION 4.6. Existence. Except as otherwise permitted by Article
V, the Company shall do or cause to be done all things necessary to
preserve and keep in full force and effect its existence as a corporation
or other Person.
SECTION 4.7. SEC Reports. The Company shall comply with all the
applicable provisions of Section 314(a) of the Trust Indenture Act.
Delivery of such information, documents or reports to the Trustee pursuant
to such provisions is for informational purposes only, and the Trustee's
receipt thereof shall not constitute constructive notice of any information
contained therein or determinable from information contained therein,
including the Company's compliance with any of the covenants hereunder (as
to which the Trustee is entitled to rely exclusively on the Officers'
Certificate).
ARTICLE V
Consolidation, Merger and Sale of Assets
SECTION 5.1. Company May Merge or Transfer Assets Only on Certain
Terms. The Company shall not consolidate with or sell or transfer all or
substantially all of its assets to, or merge with or into, in one
transaction or a series of related transactions, any other Person, unless:
(i) the Company shall be the continuing entity, or the
resulting, surviving or transferee Person (the "Successor") shall be a
Person organized and existing under the laws of the United States of
America, any State thereof or the District of Columbia and the
Successor (if not the Company) shall expressly assume, by supplemental
indenture, executed and delivered to the Trustee, in form satisfactory
to the Trustee, all the obligations of the Company under the Notes and
this Indenture;
(ii) immediately after giving effect to such transaction, no
Default or Event of Default shall have occurred and be continuing;
(iii) if requested, the Company shall have delivered to the
Trustee an Officers' Certificate and an Opinion of Counsel, each
stating that such consolidation, merger or transfer and such
supplemental indenture, if any, complies with this Indenture (except
that such Opinion of Counsel need not opine as to clause (ii) above).
SECTION 5.2. Successor Corporation Substituted. The Successor
shall succeed to, and be substituted for, and may exercise every right and
power of, the Company under the Indenture, with the same effect as if the
Successor had been an original party to this Indenture, and the Company
shall be released from all its liabilities and obligations under this
Indenture and the Notes.
ARTICLE VI
Defaults and Remedies
SECTION 6.1. Events of Default. An "Event of Default" occurs with
respect to the Notes if:
(1) the Company defaults in the payment of any installment
of interest (including Additional Interest) on any Note for 30 days
after becoming due;
(2) the Company defaults in the payment of the principal on
or premium, if any, on any Note when the same becomes due and payable
at its Stated Maturity, upon optional redemption, upon declaration or
otherwise;
(3) the Company defaults in the performance of, or breaches,
any of its covenants and agreements in the Indenture with respect to
the Notes (other than those referred to in (1) or (2) above) and such
default or breach continues for a period of 90 days after the notice
specified below;
(4) the Company defaults under or in respect of Debt of the
Company or any Significant Subsidiary with an aggregate principal
amount then outstanding in excess of $25,000,000, which default
results in the acceleration of maturity of such Debt, unless such Debt
or acceleration is discharged or annulled within 30 days after the
notice specified below;
(5) the Company or any Significant Subsidiary, pursuant to
or within the meaning of the Bankruptcy Law:
(A) commences a voluntary case or proceeding;
(B) consents to the entry of an order for relief
against it in an involuntary case or proceeding;
(C) consents to the appointment of a Custodian of it or
for all or substantially all of its property;
(D) makes a general assignment for the benefit of its
creditors;
(E) files a petition in bankruptcy or answer or consent
seeking reorganization or relief;
(F) consents to the filing of such petition or the
appointment of or taking possession by a Custodian;
(G) takes any comparable action under any foreign laws
relating to insolvency; or
(6) a court of competent jurisdiction enters an order or
decree under any Bankruptcy Law that:
(A) is for relief against the Company or any of its
Significant Subsidiaries in an involuntary case, or adjudicates
the Company or any of its Significant Subsidiaries insolvent or
bankrupt;
(B) appoints a Custodian of the Company or any of its
Significant Subsidiaries or for all or substantially all of the
property of the Company or any of its Significant Subsidiaries;
or
(C) orders the winding-up or liquidation of the Company
or any of its Significant Subsidiaries (or any similar relief is
granted under any foreign laws)
and the order or decree remains unstayed and in effect for 60 days.
The foregoing shall constitute Events of Default whatever the
reason for any such Event of Default and whether it is voluntary or
involuntary or is effected by operation of law or pursuant to any judgment,
decree or order of any court or any order, rule or regulation of any
administrative or governmental body.
The term "Bankruptcy Law" means Xxxxx 00, Xxxxxx Xxxxxx Code, or
any similar federal or state or foreign law for the relief of debtors. The
term "Custodian" means any custodian, receiver, trustee, assignee,
liquidator or other similar official under any Bankruptcy Law.
If any failure, default or acceleration referred to in clause (4)
above shall cease or be cured, waived, rescinded or annulled, then the
Event of Default hereunder by reason thereof shall be deemed likewise to
have been thereupon cured.
A Default with respect to Notes under clauses (3) or (4) of this
Section 6.1 is not an Event of Default until the Trustee (by written notice
to the Company) or the Holders of at least 25% in aggregate principal
amount of the outstanding Notes (by written notice to the Company and the
Trustee) gives notice of the Default and the Company does not cure such
Default within the time specified in said clause (3) or (4) after receipt
of such notice. Such notice must specify the Default, demand that it be
remedied and state that such notice is a "Notice of Default."
The Company shall deliver to the Trustee, within 30 days after
knowledge of the occurrence thereof, written notice in the form of an
Officers' Certificate of any event which with the giving of notice or the
lapse of time would become an Event of Default under clause (3), (4) or (5)
of this Section 6.1, its status and what action the Company is taking or
proposes to take with respect thereto.
SECTION 6.2. Acceleration. If an Event of Default with respect to
the Notes (other than an Event of Default specified in Section 6.1(5) or
(6) with respect to the Company) occurs and is continuing, the Trustee by
notice to the Company, or the Holders of at least 25% in aggregate
principal amount of the outstanding Notes by notice to the Company and the
Trustee, may, and the Trustee at the request of such Holders, shall,
declare the principal of and accrued but unpaid interest on all the Notes
to be due and payable. Upon such a declaration, such principal and accrued
and unpaid interest shall be due and payable immediately. If an Event of
Default specified in Section 6.1(5) or (6) with respect to the Company
occurs and is continuing, the principal of and accrued and unpaid interest
on all the Notes shall ipso facto become and be immediately due and payable
without any declaration or other act on the part of the Trustee or any
Holders. The Holders of a majority in aggregate principal amount of the
outstanding Notes by notice to the Trustee may rescind an acceleration and
its consequences if all existing Events of Default have been cured or
waived except nonpayment of principal or interest that has become due
solely because of such acceleration. No such rescission shall affect any
subsequent Default or impair any right consequent thereto.
SECTION 6.3. Other Remedies. If an Event of Default with respect
to the Notes occurs and is continuing, the Trustee may pursue any available
remedy to collect the payment of principal of or interest on the Notes or
to enforce the performance of any provision of the Notes or this Indenture.
The Trustee may maintain a proceeding even if it does not possess
any of the Notes or does not produce any of them in the proceeding. A delay
or omission by the Trustee or any Noteholder in exercising any right or
remedy accruing upon an Event of Default shall not impair the right or
remedy or constitute a waiver of or acquiescence in the Event of Default.
No remedy is exclusive of any other remedy. All available remedies are, to
the extent permitted by law, cumulative.
SECTION 6.4. Waiver of Past Defaults. The Holders of a majority
in aggregate principal amount of the Notes then outstanding by notice to
the Trustee may, on behalf o the Holders of the Notes, waive any past or
existing Default and its consequences except (i) a Default in the payment
of the principal of or interest on a Note or (ii) a Default in respect of a
provision that under Section 9.2 cannot be amended without the consent of
each Noteholder affected. When a Default is waived, it is deemed cured, 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 consequent right.
SECTION 6.5. Control by Majority. Upon provision of security or
indemnity satisfactory to the Trustee, the Holders of a majority in
aggregate principal amount of the Notes then outstanding may direct the
time, method and place of conducting any proceeding for any remedy
available to the Trustee with respect to the Notes or of exercising any
trust or power conferred on the Trustee. However, the Trustee, which may
conclusively rely on opinions of counsel, may refuse to follow any
direction that conflicts with law or this Indenture or that the Trustee
determines is unduly prejudicial to the rights of other Noteholders or
would involve the Trustee in personal liability; provided, however, that
the Trustee may take any other action deemed proper by the Trustee that is
not inconsistent with such direction.
SECTION 6.6. Limitation on Suits. A Holder of Notes may not
pursue any remedy with respect to this Indenture or the Notes unless:
(i) An Event of Default shall have occurred and be
continuing and the Holder gives to the Trustee prior written notice
stating that an Event of Default is continuing;
(ii) the Holders of at least 25% in aggregate principal
amount of the Notes then outstanding make a written request to the
Trustee to pursue the remedy;
(iii) such Holder or Holders offer to the Trustee indemnity
satisfactory to it against any costs, liabilities or expenses in
compliance with such request;
(iv) the Trustee does not comply with the request within 60
days after receipt of the request and the offer of security or
indemnity; and
(v) the Holders of a majority in aggregate principal amount
of the Notes then outstanding do not give the Trustee a direction
inconsistent with the request during such 60-day period.
A Noteholder may not use this Indenture to prejudice the rights
of another Noteholder or to obtain a preference or priority over another
Noteholder (it being understood that the Trustee shall not have an
affirmative duty to ascertain whether or not such actions or forbearances
are unduly prejudicial to such Noteholders).
SECTION 6.7. Rights of Holders To Receive Payment.
Notwithstanding any other provision of this Indenture, the right of any
Holder to receive payment of principal of and interest on the Notes held by
such Holder, on or after the respective due dates expressed in the Notes,
or to bring suit for the enforcement of any such payment on or after such
respective dates, shall not be impaired or affected without the consent of
such Holder.
SECTION 6.8. Collection Suit by Trustee. If an Event of Default
specified in Section 6.1(1) or (2) occurs and is continuing, the Trustee
may recover judgment in its own name and as trustee of an express trust
against the Company for the whole amount then due and owing (together with
interest on any unpaid interest to the extent lawful) and the amounts
provided for in Section 7.7.
SECTION 6.9. Trustee May File Proofs of Claim. The Trustee may
file such proofs of claim and other papers or documents as may be necessary
or advisable in order to have the claims of the Trustee (including any
claim for the reasonable compensation, expenses, disbursements and advances
of the Trustee, its agents and counsel) and the Noteholders allowed in any
judicial proceedings relative to an Company, its creditors or any other
obligor upon the Notes, or any of their creditors or the property of the
Company or such other obligor or their creditors and, unless prohibited by
law or applicable regulations, may vote on behalf of the Holders in any
election of a trustee in bankruptcy or other Person performing similar
functions, and any Custodian in any such judicial proceeding is hereby
authorized by each Holder to make payments to the Trustee and, in the event
that the Trustee shall consent to the making of such payments directly to
the Holders, to pay to the Trustee any amount due it for the reasonable
compensation, expenses, disbursements and advances of the Trustee, its
agents and its counsel, and any other amounts due the Trustee under Section
7.7.
SECTION 6.10. Priorities. Any money or other property collected
by the Trustee pursuant to Article VI hereof, or any money or other
property otherwise distributable in respect of the Company's obligations
under this Indenture, shall be applied in the following order:
FIRST: to the Trustee (including any predecessor Trustee) for
amounts due under Section 7.7;
SECOND: to Noteholders for amounts due and unpaid on the Notes
for principal and interest, ratably, without preference or priority of
any kind, according to the amounts due and payable on the Notes for
principal and interest, respectively; and
THIRD: to the Company.
The Trustee may, upon prior written notice to the Company, fix a
record date and payment date for any payment to Noteholders pursuant to
this Section 6.10. At least 15 days before such record date, the Company
shall mail to each Noteholder and the Trustee a notice that states the
record date, the payment date and amount to be paid.
SECTION 6.11. Undertaking for Costs. In any suit for the
enforcement of any right or remedy under this Indenture or in any suit
against the Trustee for any action taken or omitted by it as Trustee, a
court in its discretion may require the filing by any party litigant in the
suit of an undertaking to pay the costs of the suit, and the court in its
discretion may assess reasonable costs, including reasonable attorneys'
fees and expenses, against any party litigant in the suit, having due
regard to the merits and good faith of the claims or defenses made by the
party litigant. This Section 6.11 does not apply to a suit by the Trustee,
a suit by a Holder pursuant to Section 6.7 or a suit by Holders of more
than 10% in aggregate principal amount of the outstanding Notes.
SECTION 6.12. Waiver of Stay or Extension Laws. The Company (to
the extent it may lawfully do so) shall not at any time insist upon, or
plead, or in any manner whatsoever claim or take the benefit or advantage
of, any stay or extension law wherever enacted, now or at any time
hereafter in force, which may affect the covenants or the performance of
this Indenture; and the Company (to the extent that it may lawfully do so)
hereby expressly waives all benefit or advantage of any such law, and shall
not hinder, delay or impede the execution of any power herein granted to
the Trustee, but shall suffer and permit the execution of every such power
as though no such law had been enacted.
ARTICLE VII
Trustee
SECTION 7.1. Duties of Trustee. (a) If an Event of Default has
occurred and is continuing, the Trustee shall exercise the rights and
powers vested in it by this Indenture and use the same degree of care and
skill in their exercise as a prudent Person would exercise or use under the
circumstances in the conduct of such Person's own affairs.
(b) Except during the continuance of an Event of Default:
(i) the Trustee undertakes to perform such duties and only
such duties as are specifically set forth in this Indenture and no
implied covenants or obligations shall be read into this Indenture
against the Trustee; and
(ii) in the absence of bad faith on its part, the Trustee
may conclusively rely, as to the truth of the statements and the
correctness of the opinions expressed therein, upon Officers'
Certificates and Opinions of Counsel furnished to the Trustee and
conforming to the requirements of this Indenture. However, in the case
of any such Officers' Certificates and Opinions of Counsel which by
any provision hereof are specifically required to be furnished to the
Trustee, the Trustee shall examine such Officers' Certificates and
Opinions of Counsel to determine whether or not they conform to the
requirements of this Indenture.
(c) The Trustee may not be relieved from liability for its own
negligent action, its own negligent failure to act or its own willful
misconduct, except that:
(i) this subsection does not limit the effect of subsections
(b) or (f) of this Section 7.1;
(ii) the Trustee shall not be liable for any error of
judgment made in good faith by a Trust Officer unless it is proved
that the Trustee was negligent in ascertaining the pertinent facts;
and
(iii) the Trustee shall not be liable with respect to any
action it takes or omits to take in good faith in accordance with a
direction received by it pursuant to Section 6.5.
(d) Every provision of this Indenture that in any way relates to
the Trustee is subject to subsections (a), (b), (c) and (f) of this Section
7.1.
(e) The Trustee shall not be liable for interest on any money or
other property received by it or for holding moneys or other property
uninvested, in either case, except as otherwise agreed between the Company
and the Trustee. Money and other property held in trust by the Trustee
shall, until used or applied as herein provided, be held in trust for the
purposes for which they were received, but need not be segregated from
other money or property except to the extent required by law.
(f) No provision of this Indenture shall require the Trustee to
expend or risk its own funds or otherwise incur any liability, financial or
otherwise, in the performance of any of its duties hereunder or in the
exercise of any of its rights or powers, if it shall have reasonable
grounds to believe that repayment of such funds or adequate indemnity
against such risk or liability is not reasonably assured to it.
(g) Every provision of this Indenture relating to the conduct or
affecting the liability of or affording protection to the Trustee shall be
subject to the provisions of this Section 7.1 and to the provisions of the
Trust Indenture Act, where applicable.
SECTION 7.2. Rights of Trustee. (a) The Trustee may conclusively
rely on, and shall be protected in acting or refraining from acting in
reliance on, any document believed by it to be genuine and to have been
signed or presented by the proper person. The Trustee need not investigate
any fact or matter stated in the document.
(b) Before the Trustee acts or refrains from acting, it may
require an Officers' Certificate or an Opinion of Counsel, or both. The
Trustee shall not be liable for any action it takes or omits to take in
good faith in reliance on the Officers' Certificate or Opinion of Counsel.
(c) The Trustee may execute any of the trusts or powers or
perform any duties hereunder either directly through attorneys and agents,
respectively, and shall not be responsible for the misconduct or negligence
of any attorney or agent appointed with due care by it hereunder.
(d) The Trustee shall not be liable for any action it takes,
suffers to exist or omits to take in good faith which it believes to be
authorized or within its rights or powers; provided, however, that the
Trustee's conduct does not constitute willful misconduct, bad faith or
negligence.
(e) The Trustee may consult with counsel of its selection, and
the advice or opinion of counsel with respect to legal matters relating to
this Indenture and the Notes shall be full and complete authorization and
protection from liability in respect to any action taken, omitted or
suffered by it hereunder in good faith and in reliance thereon.
(f) 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 security or indemnity
satisfactory to it against the costs, expenses and liabilities which might
be incurred by it in compliance with such request or direction.
(g) The Trustee shall not be charged with knowledge of any
Default or Event of Default with respect to the Notes unless either (1) a
Trust Officer shall have actual knowledge of such Default or Event of
Default or (2) written notice of such Default or Event of Default shall
have been given to a Trust Officer of the Trustee at the Corporate Trust
Office by the Company or any other obligor on the Notes or by any Holder of
the Notes. Any such notice shall reference this Indenture and the Notes.
(h) The rights, privileges, protections, immunities and benefits
given to the Trustee pursuant to this Indenture, including its rights to be
indemnified, are extended to, and shall be enforceable by, the Trustee in
each of its capacities as Registrar and Paying Agent, as the case may be,
hereunder.
(i) 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
reasonable inquiry or reasonable 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, upon reasonable notice and
at reasonable times, to examine the books, records and premises of the
Company, personally or by agent or attorney at the sole cost of the Company
and shall incur no liability or additional liability of any kind by reason
of such inquiry or investigation.
(j) The Trustee may request that the Company deliver a
certificate, substantially in the form of Exhibit E hereto, setting forth
the names of individuals and/or titles of Officers authorized at such time
to take specified actions pursuant to this Indenture.
SECTION 7.3. Individual Rights of Trustee. The Trustee in its
individual or any other capacity may become the owner or pledgee of Notes
and may otherwise deal with the Company with the same rights it would have
if it were not Trustee. Any Paying Agent, Registrar or co-paying agent may
do the same with like rights. However, the Trustee must comply with
Sections 7.10 and 7.11.
SECTION 7.4. Trustee's Disclaimer. The Trustee shall not be
responsible for and makes no representation as to the validity or adequacy
of this Indenture or the Notes, it shall not be accountable for the
Company's use of the proceeds from the Notes, and it shall not be
responsible for any statement of the Company in this Indenture or in any
document issued in connection with the sale of the Notes or in the Notes
other than the Trustee's certificate of authentication.
SECTION 7.5. Notice of Defaults. If a Default or an Event of
Default occurs with respect to the Notes and is continuing and if it is
actually known to the Trustee, the Trustee shall mail to each Noteholder
notice of the Default within 90 days after it is known to a Trust Officer
or written notice of it is received by a Trust Officer of the Trustee.
Except in the case of a Default in payment of principal of or interest on
any Note, the Trustee may withhold the notice if and so long as a committee
of its Trust Officers in good faith determines that withholding the notice
is not opposed to the interests of Noteholders.
SECTION 7.6. Reports by Trustee to Holders. As promptly as
practicable after each January 15 beginning with the January 15 following
the date of this Indenture, and in any event prior to March 15 in each
year, the Trustee shall mail to each Noteholder a brief report dated as of
such January 15 that complies with Section 313(a) of the Trust Indenture
Act. The Trustee also shall comply with Section 313(b) of the Trust
Indenture Act. The Trustee shall promptly deliver to the Company a copy of
any report it delivers to Holders pursuant to this Section 7.6.
A copy of each report at the time of its mailing to Noteholders
shall be filed by the Trustee with the SEC and each stock exchange (if any)
on which the Notes are listed. The Company agrees to notify promptly the
Trustee in writing whenever the Notes become listed on any stock exchange
and of any delisting thereof.
SECTION 7.7. Compensation and Indemnity. The Company covenants
and agrees to pay to the Trustee (and any predecessor Trustee) from time to
time such reasonable compensation for its services as the Company and the
Trustee shall from time to time agree in writing. The Trustee's
compensation shall not be limited by any law on compensation of a trustee
of an express trust. The Company shall reimburse the Trustee upon request
for all reasonable out-of-pocket expenses (including attorneys' fees and
expenses), disbursements and advances incurred or made by it in accordance
with the provisions of this Indenture, including costs of collection, in
addition to such compensation for its services, except any such expense,
disbursement or advance as may arise from its negligence, willful
misconduct or bad faith. Such expenses shall include the reasonable
compensation and expenses, disbursements and advances of the Trustee's
agents and counsel. The Trustee shall provide the Company reasonable notice
of any expenditure not in the ordinary course of business. The Company
shall indemnify each of the Trustee, its officers, directors, employees and
any predecessor Trustees against any and all loss, damage, claim, liability
or expense (including reasonable attorneys' fees and expenses) (other than
taxes applicable to the Trustee's compensation hereunder) incurred by it in
connection with the acceptance or administration of this trust and the
performance of its duties hereunder. The Trustee shall notify the Company
promptly of any claim for which it may seek indemnity. Failure by the
Trustee so to notify the Company shall not relieve the Company of its
obligations hereunder, except to the extent that the Company has been
prejudiced by such failure. The Company shall defend the claim and the
Trustee shall cooperate, to the extent reasonable, in the defense of any
such claim, and, if (in the opinion of counsel to the Trustee) the facts
and/or issues surrounding the claim are reasonably likely to create a
conflict with the Company, the Company shall pay the reasonable fees and
expenses of separate counsel to the Trustee. The Company need not reimburse
any expense or indemnify against any loss, liability or expense incurred by
the Trustee through the Trustee's own willful misconduct, negligence or bad
faith. The Company need not pay for any settlement made without its
consent, which consent shall not be unreasonably withheld or delayed.
To secure the Company's payment obligations in this Section 7.7,
the Trustee (including any predecessor trustee) shall have a lien prior to
the Notes on all money or property held or collected by the Trustee other
than money or property held in trust to pay principal of and interest on
particular Notes.
The Company's payment obligations pursuant to this Section 7.7
shall survive the satisfaction, discharge and termination of this
Indenture, the resignation or removal of the Trustee and any discharge of
this Indenture including any discharge under any bankruptcy law. In
addition to and without prejudice to the rights provided to the Trustee
under any of the provisions of this Indenture, when the Trustee incurs
expenses or renders services after the occurrence of a Default specified in
Section 6.1(5) or (6) with respect to the Company, the expenses and the
compensation for the services are intended to constitute expenses of
administration under the Bankruptcy Law.
SECTION 7.8. Replacement of Trustee. The Trustee may resign at
any time upon 30 days' written notice to the Company. The Holders of a
majority in principal amount of the Notes then outstanding, may remove the
Trustee upon 30 days' written notice to the Trustee and may appoint a
successor Trustee, which successor Trustee shall be reasonably acceptable
to the Company. The Company shall remove the Trustee if:
(i) the Trustee fails to comply with Section 7.10;
(ii) the Trustee is adjudged bankrupt or insolvent;
(iii) a receiver or other public officer takes charge of the
Trustee or its property; or
(iv) the Trustee otherwise becomes incapable of acting.
If the Trustee resigns, is removed by the Company or by the
Holders of a majority in principal amount of the Notes and such Holders do
not reasonably promptly appoint a successor Trustee, or if a vacancy exists
in the office of Trustee for any reason (the Trustee in such event being
referred to herein as the retiring Trustee), the Company shall promptly
appoint a successor Trustee.
A successor Trustee shall deliver a written acceptance of its
appointment to the retiring Trustee and to the Company and the Company
shall pay all amounts due and owing to the Trustee under Section 7.7 of the
Indenture. Thereupon the resignation or removal of the retiring Trustee
shall become effective, and the successor Trustee shall have all the
rights, powers and duties of the Trustee under this Indenture. The
successor Trustee shall mail a notice of its succession to Noteholders
affected by such resignation or removal. The retiring Trustee shall
promptly transfer all property held by it as Trustee to the successor
Trustee, subject to the lien provided for in Section 7.7.
If a successor Trustee does not take office with respect to the
Notes within 30 days after the retiring Trustee resigns or is removed, the
retiring Trustee or the Holders of 10% in principal amount of the Notes may
petition any court of competent jurisdiction for the appointment of a
successor Trustee.
If the Trustee fails to comply with Section 7.10, any Noteholder
may petition any court of competent jurisdiction for the removal of the
Trustee and the appointment of a successor Trustee.
Notwithstanding the replacement of the Trustee pursuant to this
Section 7.8, the Company's obligations under Section 7.7 shall continue for
the benefit of the retiring Trustee.
SECTION 7.9. Successor Trustee by Merger. If the Trustee
consolidates with, merges or converts into, or transfers all or
substantially all its corporate trust business or assets to, another
corporation or banking association, the resulting, surviving or transferee
corporation without any further act shall be the successor Trustee;
provided that such corporation shall be otherwise qualified and eligible
under this Article VII and Section 310(a) of the Trust Indenture Act,
without the execution or filing of any paper or any further act on the part
of the parties hereto.
In case at the time such successor or successors by merger,
conversion or consolidation to the Trustee shall succeed to the trusts
created by this Indenture any of the Notes shall have been authenticated
but not delivered, any such successor to the Trustee may adopt the
certificate of authentication of any predecessor trustee, and deliver such
Notes so authenticated; and in case at that time any of the Notes shall not
have been authenticated, any successor to the Trustee may authenticate such
Notes either in the name of any predecessor hereunder or in the name of the
successor to the Trustee; and in all such cases such certificates shall
have the full force which it is anywhere in the Notes or in this Indenture
provided that the certificate of the Trustee shall have.
SECTION 7.10. Eligibility; Disqualification. The Trustee shall at
all times satisfy the requirements of Section 310(a) of the Trust Indenture
Act. The Trustee shall have a combined capital and surplus of at least
$50,000,000 as set forth in its most recent published annual report of
condition. The Trustee shall comply with Section 310(b) of the Trust
Indenture Act; provided, however, that there shall be excluded from the
operation of Section 310(b)(1) of the Trust Indenture Act and any indenture
or indentures under which other securities or certificates of interest or
participation in other securities of the Company are outstanding if the
requirements for such exclusion set forth in Section 310(b)(1) of the Trust
Indenture Act are met.
Nothing herein shall prevent the Trustee from filing with the
Commission the application referred to in the second to last paragraph of
Section 310(b) of the Trust Indenture Act.
SECTION 7.11. Preferential Collection of Claims Against the
Company. The Trustee shall comply with Section 311(a) of the Trust
Indenture Act, excluding any creditor relationship listed in Section 311(b)
of the Trust Indenture Act. A Trustee who has resigned or been removed
shall be subject to Section 311(a) of the Trust Indenture Act to the extent
indicated.
ARTICLE VIII
Discharge of Indenture; Defeasance
SECTION 8.1. Discharge of Liability on Notes; Defeasance. With
respect to the Notes, (a) when (i) the Company delivers to the Trustee all
outstanding Notes that have not already been delivered to the Trustee for
cancellation or (ii) all outstanding Notes have become due and payable,
whether at maturity or as a result of the mailing of a notice of redemption
pursuant to Article III hereof or the Notes shall become due and payable at
their Stated Maturity within one year, or the Notes are to be called for
redemption within one year under arrangements satisfactory to the Trustee
for the giving of notice of redemption by the Trustee in the name, and at
the expense, of the Company, and, in each case of this clause (ii), the
Company irrevocably deposits or causes to be deposited with the Trustee
funds sufficient to pay at maturity or upon redemption all outstanding
Notes, including interest thereon to maturity or such redemption date, and
if in either case the Company pays all other sums payable hereunder by the
Company, then this Indenture shall, subject to Section 8.1(c), cease to be
of further effect. The Trustee shall acknowledge satisfaction and discharge
of this Indenture on demand of the Company accompanied by an Officers'
Certificate from the Company and an Opinion of Counsel from the Company
that all conditions precedent provided herein for relating to satisfaction
and discharge of this Indenture have been complied with and at the cost and
expense of the Company.
(b) Subject to Sections 8.1(c) and 8.2, the Company at any time
may terminate (i) all of its obligations under the Notes and this Indenture
("legal defeasance option") or (ii) its obligations under Section 4.2 and
Section 4.3 and the operation of Sections 6.1(3) and 6.1(4) ("covenant
defeasance option"). The Company may exercise its legal defeasance option
notwithstanding its prior exercise of its covenant defeasance option.
If the Company exercises its legal defeasance option with respect
to the Notes, payment of the Notes may not be accelerated because of an
Event of Default. If the Company exercises its covenant defeasance option,
payment of the Notes may not be accelerated because of an Event of Default
specified in Sections 6.1(3) (only with respect to the covenants terminated
pursuant to Section 8.1(b)(ii) above) or 6.1(4).
Upon satisfaction of the conditions set forth herein and upon
request of the Company, the Trustee shall acknowledge in writing the
discharge of those obligations that the Company terminates.
(c) Notwithstanding clauses (a) and (b) above, the Company's
obligations in Sections 2.3, 2.4, 2.5, 2.9, 4.1, 4.5, 7.7, 7.8, 8.4, 8.5
and 8.6 shall survive until the Notes have been paid in full. Thereafter,
the Company's and the Trustee's obligations in Sections 7.7, 8.4 and 8.5
shall survive.
SECTION 8.2. Conditions to Defeasance. The Company may exercise
its legal defeasance option or its covenant defeasance option with respect
to the Notes only if:
(i) the Company irrevocably deposits or causes to be
deposited in trust with the Trustee money or U.S. Government
Obligations which through the scheduled payment of principal and
interest in respect thereof in accordance with their terms shall
provide cash at such times and in such amounts as shall be sufficient
to pay principal and interest when due on all outstanding Notes
(except Notes replaced pursuant to Section 2.9) to maturity or
redemption, as the case may be;
(ii) the Company delivers to the Trustee a certificate from
a nationally recognized firm of independent accountants expressing
their opinion that the payments of principal and interest when due and
without reinvestment on the deposited U.S. Government Obligations plus
any deposited money without investment shall provide cash at such
times and in such amounts as shall be sufficient to pay principal and
interest when due on all outstanding Notes (except Notes replaced
pursuant to Section 2.9) to maturity or redemption, as the case may
be;
(iii) 91 days pass after the deposit is made and during the
91-day period no Default specified in Section 6.1(5) or (6) occurs
which is continuing at the end of the period;
(iv) the deposit does not constitute a default under any
other material agreement binding on the Company;
(v) in the case of the legal defeasance option, the Company
shall have delivered to the Trustee an Opinion of Counsel stating that
(i) the Company has received from, or there has been published by, the
Internal Revenue Service a ruling, or (ii) since the date of this
Indenture there has been a change in the applicable federal income tax
law, in either case to the effect that, and based thereon such Opinion
of Counsel shall confirm that, the Noteholders will not recognize
income, gain or loss for federal income tax purposes as a result of
such deposit and defeasance and will be subject to federal income tax
on the same amounts, in the same manner and at the same times as would
have been the case if such deposit and defeasance had not occurred;
(vi) in the case of the covenant defeasance option, the
Company shall have delivered to the Trustee an Opinion of Counsel to
the effect that the Noteholders will not recognize income, gain or
loss for federal income tax purposes as a result of such deposit and
defeasance and will be subject to federal income tax on the same
amounts, in the same manner and at the same times as would have been
the case if such deposit and defeasance had not occurred; and
(vii) the Company delivers to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that all
conditions precedent to the defeasance and discharge of the Notes as
contemplated by this Article VIII have been complied with.
Before or after a deposit, the Company may make arrangements
satisfactory to the Trustee for the redemption of Notes at a future date in
accordance with Article III.
SECTION 8.3. Application of Trust Money. The Trustee shall hold
in trust money or U.S. Government Obligations deposited with it pursuant to
this Article VIII. It shall apply the deposited money and the money from
U.S. Government Obligations either directly or through the Paying Agent as
the Trustee may determine and in accordance with this Indenture to the
payment of principal of and interest on the Notes.
SECTION 8.4. Repayment to the Company. The Trustee and the Paying
Agent shall promptly turn over to the Company upon request any excess money
or securities held by them at any time.
Subject to any applicable abandoned property law, the Trustee and
the Paying Agent shall pay to the Company upon written request any money
held by them for the payment of principal or interest that remains
unclaimed for two years after the date of payment of such principal and
interest, and, thereafter, Noteholders entitled to the money must look to
the Company for payment as general creditors.
Any unclaimed funds held by the Trustee pursuant to this Section
8.4 shall be held uninvested and without any liability for interest.
SECTION 8.5. Indemnity for Government Obligations. The Company
shall pay and shall indemnify the Trustee against any tax, fee or other
charge imposed on or assessed against deposited U.S. Government Obligations
or the principal and interest received on such U.S. Government Obligations
other than any such tax, fee or other charge which by law is for the
account of the Holders of the defeased Notes; provided that the Trustee
shall be entitled to charge any such tax, fee or other charge to such
Holder's account.
SECTION 8.6. Reinstatement. If the Trustee or Paying Agent is
unable to apply any money or U.S. Government Obligations in accordance with
this Article VIII by reason of any legal proceeding or by reason of any
order or judgment of any court or governmental authority enjoining,
restraining or otherwise prohibiting such application, the Company's
obligations under this Indenture and the Notes shall be revived and
reinstated as though no deposit had occurred pursuant to this Article VIII
until such time as the Trustee or Paying Agent is permitted to apply all
such money or U.S. Government Obligations in accordance with this Article
VIII; provided, however, that (a) if the Company has made any payment of
interest on or principal of any Notes following the reinstatement of its
obligations, the Company shall be subrogated to the rights of the Holders
of such Notes to receive such payment from the money or U.S. Government
Obligations held by the Trustee or Paying Agent and (b) unless otherwise
required by any legal proceeding or any order or judgment of any court or
governmental authority, the Trustee or Paying Agent shall return all such
money and U.S. Government Obligations to the Company promptly after
receiving a written request therefor at any time, if such reinstatement of
the Company's obligations has occurred and continues to be in effect.
ARTICLE IX
Amendments
SECTION 9.1. Without Consent of Holders. The Company and the
Trustee may amend this Indenture or the Notes without notice to or consent
of any Noteholder:
(i) to cure any ambiguity, omission, defect or
inconsistency;
(ii) to comply with Article V;
(iii) to add any additional Events of Default;
(iv) to add to the covenants of the Company for the benefit
of the Holders of all the Notes or to surrender any right or power
herein conferred upon the Company;
(v) to add one or more guarantees for the benefit of holders
of the Notes;
(vi) to secure the Notes pursuant to the terms of this
Indenture;
(vii) to add or appoint a successor or separate Trustee or
other agent;
(viii) to provide for the issuance of the Exchange Notes,
which shall have terms substantially identical in all material
respects to the Initial Notes (except that the transfer restrictions
contained in the Initial Notes shall be modified or eliminated, as
appropriate, and there will be no registration rights), and which will
be treated, together with any outstanding Initial Notes, as a single
issue of securities;
(ix) to provide for the issuance of any Additional Notes;
(x) to comply with any requirements in connection with
qualifying this Indenture under the Trust Indenture Act;
(xi) to comply with the rules of any applicable securities
depository;
(xii) to provide for uncertificated Notes in addition to or
in place of certificated Notes; provided, however, that the
uncertificated Notes are issued in registered form for purposes of
Section 163(f) of the Code or in a manner such that the uncertificated
Notes are as described in Section 163(f)(2)(B) of the Code; and
(xiii) to change any other provision if the change does not
adversely affect the interests of any Noteholder.
After an amendment under this Section 9.1 becomes effective, the
Company shall mail to Noteholders a notice briefly describing such
amendment. The failure to give such notice to all Noteholders, or any
defect therein, shall not impair or affect the validity of an amendment
under this Section 9.1.
SECTION 9.2. With Consent of Holders. The Company and the Trustee
may amend this Indenture or the Notes without notice to any Noteholder but
with the written consent of the Holders of at least a majority in principal
amount of the Notes then outstanding (including consents obtained in
connection with a tender offer or exchange for Notes). However, without the
consent of each Noteholder affected, an amendment may not:
(i) change the Stated Maturity of the principal of, or
installment of interest on, any Note;
(ii) reduce the principal amount of, or the rate of interest
on, any Notes;
(iii) reduce any premium payable on the redemption of any
Note or change the date on which any Note may or must be redeemed;
(iv) change the coin or currency in which the principal of
or interest on any Note is payable;
(v) impair the right of any Holder to institute suit for the
enforcement of any payment on or after the Stated Maturity of any
Note;
(vi) reduce the percentage in principal amount of the
outstanding Notes, the consent of whose Holders is required in order
to take certain actions;
(vii) reduce the requirements for quorum or voting by
Holders in this Indenture or the Notes;
(viii) modify any of the provisions of this Indenture
regarding the waiver of past defaults and the waiver of certain
covenants by Holders except to increase any percentage vote required
or to provide that certain other provisions of the Indenture cannot be
modified or waived without the consent of the holder of each Note
affected thereby; or
(ix) modify any of the above provisions of this Section 9.2.
It shall not be necessary for the consent of the Holders under
this Section 9.2 to approve the particular form of any proposed amendment,
but it shall be sufficient if such consent approves the substance thereof.
After an amendment under this Section 9.2 becomes effective, the
Company shall mail to Noteholders a notice briefly describing such
amendment. The failure to give such notice to all Noteholders, or any
defect therein, shall not impair or affect the validity of an amendment
under this Section 9.2.
SECTION 9.3. Compliance with Trust Indenture Act. Every amendment
to this Indenture or the Notes shall comply with the Trust Indenture Act as
then in effect.
SECTION 9.4. Effect of Consents and Waivers. A consent to an
amendment, supplement or a waiver by a Holder of a Note shall bind the
Holder and every subsequent Holder of that Note or portion of the Note that
evidences the same debt as the consenting Holder's Note, even if notation
of the consent or waiver is not made on the Note. After an amendment or
waiver becomes effective with respect to the Notes, it shall bind every
Noteholder.
The Company may, but shall not be obligated to, fix a record date
for the purpose of determining the Noteholders entitled to give their
consent or take any other action described above or required or permitted
to be taken pursuant to this Indenture. If a record date is fixed, then
notwithstanding the immediately preceding paragraph, those Persons who were
Noteholders at such record date (or their duly designated proxies), and
only those Persons, shall be entitled to give such consent or to take any
such action, whether or not such Persons continue to be Holders after such
record date.
SECTION 9.5. Notation on or Exchange of Notes. If an amendment
changes the terms of a Note, the Trustee may require the Holder of the Note
to deliver it to the Trustee. The Company shall provide in writing to the
Trustee an appropriate notation to be placed on the Note regarding the
changed terms and return it to the Holder. Alternatively, if the Company or
the Trustee so determine, the Company in exchange for the Note shall issue
and the Trustee shall authenticate a new Note that reflects the changed
terms. Failure to make the appropriate notation or to issue a new Note
shall not affect the validity of such amendment.
SECTION 9.6. Trustee To Sign Amendments. The Trustee shall sign
any amendment authorized pursuant to this Article IX if the amendment does
not adversely affect the rights, duties, liabilities or immunities of the
Trustee. If it does, the Trustee may but need not sign it. In signing such
amendment the Trustee shall receive indemnity reasonably satisfactory to it
and to receive, and (subject to Section 7.1) shall be fully protected in
conclusively relying upon, in addition to the documents required by Section
10.4, an Officers' Certificate of the Company and an Opinion of Counsel
stating that such amendment complies with the provisions of this Article IX
and that such supplemental indenture constitutes the legal valid and
binding obligation of the Company in accordance with its terms subject to
customary exceptions.
Upon the execution of any supplemental indenture under this
Article IX, this Indenture shall be modified in accordance therewith, and
such supplemental Indenture shall form a part of this Indenture for all
purposes; and every Noteholder theretofore or thereafter authenticated and
delivered hereunder shall be bound thereby.
ARTICLE X
Miscellaneous
SECTION 10.1. Trust Indenture Act Controls. If any provision of
this Indenture limits, qualifies or conflicts with the duties imposed by,
or with another provision included or which is required to be included in
this Indenture by the Trust Indenture Act, the duty or provision required
by the Trust Indenture Act shall control.
SECTION 10.2. Notices. Any notice or communication shall be in
writing (including facsimile) and delivered in person or mailed by
first-class mail addressed as follows:
if to the Company:
Dow Xxxxx & Company, Inc.
000 Xxxxxxx Xxxxxx
Xxx Xxxx, XX 00000
Facsimile Number: (000) 000-0000
Attention: General Counsel
if to the Trustee:
The Bank of New York
000 Xxxxxxx Xxxxxx, 0 Xxxx
Xxx Xxxx XX 00000
Facsimile Number: (000) 000-0000
Attention: Corporate Trust Administration
Any notices between the Company and the Trustee may be by
facsimile or certified first class mail, receipt confirmed and the original
to follow by guaranteed overnight courier. The Company or the Trustee by
notice to the others may designate additional or different addresses for
subsequent notices or communications.
Any notice or communication mailed to a Noteholder shall be
mailed to the Noteholder at the Noteholder's address as it appears on the
registration books of the Registrar and shall be sufficiently given if so
mailed within the time prescribed.
Failure to mail a notice or communication to a Noteholder or any
defect in it shall not affect its sufficiency with respect to other
Noteholders. If a notice or communication is mailed in the manner provided
above, it is duly given, whether or not the addressee receives it.
SECTION 10.3. Communication by Holders with other Holders.
Noteholders may communicate pursuant to Section 312(b) of the Trust
Indenture Act with other Noteholders with respect to their rights under
this Indenture or the Notes. The Company, the Trustee, the Registrar and
anyone else shall have the protection of Section 312(c) of the Trust
Indenture Act.
SECTION 10.4. Certificate and Opinion as to Conditions Precedent.
Upon any request or application by the Company to the Trustee to take or
refrain from taking any action under this Indenture, the Company shall
furnish to the Trustee:
(i) an Officers' Certificate of the Company in form
reasonably satisfactory to the Trustee stating that, in the opinion of
the signers, all conditions precedent, if any, provided for in this
Indenture relating to the proposed action have been complied with; and
(ii) an Opinion of Counsel of the Company in form reasonably
satisfactory to the Trustee stating that, in the opinion of such
counsel, all such conditions precedent have been complied with.
Notwithstanding the foregoing, no such Opinion of Counsel shall
be given with respect to the authentication and delivery of any Initial
Notes.
SECTION 10.5. Statements Required in Certificate or Opinion. The
certificate or opinion with respect to compliance with a covenant or
condition provided for in this Indenture shall include:
(i) a statement that the individual making such certificate
or opinion has read such covenant or condition;
(ii) a brief statement as to the nature and scope of the
examination or investigation upon which the statements or opinions
contained in such certificate or opinion are based;
(iii) a statement that, in the opinion of such individual,
he has made such examination or investigation as is necessary to
enable him to express an informed opinion as to whether or not such
covenant or condition has been complied with; and
(iv) a statement as to whether or not, in the opinion of
such individual, such covenant or condition has been complied with.
SECTION 10.6. When Notes Disregarded. In determining whether the
Holders of the required principal amount of Notes have concurred in any
direction, waiver or consent, Notes owned by the Company or by any Person
directly or indirectly controlling or controlled by or under direct or
indirect common control with the Company (an "Affiliate") shall be
disregarded and deemed not to be outstanding, except that, for the purpose
of determining whether the Trustee shall be protected in conclusively
relying on any such direction, waiver or consent, only Notes which a Trust
Officer of the Trustee actually knows are so owned shall be so disregarded.
Also, subject to the foregoing, only Notes outstanding at the time shall be
considered in any such determination.
SECTION 10.7. Rules by Trustee, Paying Agent and Registrar. The
Trustee may make reasonable rules for action by or a meeting of
Noteholders. The Registrar and the Paying Agent may make reasonable rules
for their functions.
SECTION 10.8. Governing Law. THIS INDENTURE AND THE NOTES SHALL
BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF
NEW YORK.
SECTION 10.9. No Recourse Against Others. A director, officer,
employee or stockholder (other than the Company), as such, of the Company
shall not have any liability for any obligations of the Company under the
Notes, this Indenture or the Registration Rights Agreement or for any claim
based on, in respect of or by reason of such obligations or their creation.
By accepting a Note, each Noteholder shall waive and release all such
liability. The waiver and release shall be part of the consideration for
the issue of the Notes.
SECTION 10.10. Successors. All agreements of the Company in this
Indenture and the Notes shall bind its successors and assigns. All
agreements of the Trustee in this Indenture shall bind its successors.
SECTION 10.11. Multiple Originals. The parties may sign any
number of copies of this Indenture. Each signed copy shall be an original,
but all of them together represent the same agreement. One signed copy is
enough to prove this Indenture.
SECTION 10.12. Variable Provisions. The Company initially
appoints the Trustee as Paying Agent and Registrar and custodian with
respect to any Global Notes (as defined in the Appendix hereto).
SECTION 10.13. Qualification of Indenture. The Company shall
qualify this Indenture under the Trust Indenture Act in accordance with the
terms and conditions of the Registration Rights Agreement and shall pay all
reasonable costs and expenses (including reasonable attorneys' fees for the
Company, the Trustee and the Holders) incurred in connection therewith,
including, but not limited to, costs and expenses of qualification of this
Indenture and the Notes and printing this Indenture and the Notes. The
Trustee shall be entitled to receive from the Company any such Officers'
Certificates, Opinions of Counsel or other documentation as it may
reasonably request in connection with any such qualification of this
Indenture under the Trust Indenture Act.
SECTION 10.14. Table of Contents; Headings. The table of
contents, cross-reference sheet and headings of the Articles and Sections
of this Indenture have been inserted for convenience of reference only, are
not intended to be considered a part hereof and shall not modify or
restrict any of the terms or provisions hereof.
IN WITNESS WHEREOF, the parties have caused this Indenture to be
duly executed as of the date first written above.
DOW XXXXX & COMPANY, INC.
By /s/ Xxxxxxxxxxx X. Xxxxx
-------------------------
Xxxxxxxxxxx X. Xxxxx
Vice President & Chief Financial
Officer
THE BANK OF NEW YORK,
as Trustee
By /s/ Xxxxxx X. Xxxxxxxxxx
-------------------------
Xxxxxx X. Xxxxxxxxxx
Vice President
EXHIBIT A
[FORM OF FACE OF INITIAL NOTE]
DOW XXXXX & COMPANY, INC.
3.875% SENIOR NOTES DUE 2008
No. __ Principal Amount $______________
(subject to adjustment as
reflected in the Schedule
of Increases and Decreases
in Global Note attached
hereto)
CUSIP NO. _________
ISIN NO. _________
Dow Xxxxx & Company, Inc., a Delaware corporation, for value
received, promises to pay to _____________, or registered assigns, the
principal sum of ____________ Dollars (subject to adjustment as reflected
in the Schedule of Increases and Decreases in Global Note attached hereto)
on February 15, 2008.
Interest Payment Dates: February 15 and August 15 of each year,
commencing on [August 15, 2005] [first interest payment date relating to
any Additional Notes].
Record Dates: February 1 and August 1 of each year.
Additional provisions of this Note are set forth on the other
side of this Note.
IN WITNESS WHEREOF, DOW XXXXX & COMPANY, INC. has caused this
Note to be duly executed.
Dated:________ ___, 2005
DOW XXXXX & COMPANY, INC.
By
-------------------------------------
Name:
Title:
TRUSTEE'S CERTIFICATE OF
AUTHENTICATION
This is one of the Notes referred
to in the within-mentioned Indenture.
THE BANK OF NEW YORK,
as Trustee
By
--------------------------------
Authorized Signatory
Dated:________ ___, 2005
[FORM OF REVERSE SIDE OF INITIAL NOTE]
[Reverse of Note]
3.875% Senior Notes due 2008
1. Interest
--------
Dow Xxxxx & Company, Inc., a Delaware corporation (together with
its successors and assigns under the Indenture hereinafter referred to,
being herein called the "Company"), promises to pay interest on the
principal amount of this Note at the rate of 3.875% per annum; provided,
however, that, upon the occurrence or failure to occur of certain events
specified in the Registration Rights Agreement, the Company shall, subject
to the terms and conditions set forth in the Registration Rights Agreement,
pay additional interest on the principal amount of this Note at a rate of
0.25% per annum for the first 90-day period (or portion thereof) after such
event occurs or fails to occur, which rate shall be increased by 0.25% per
annum at the beginning of the subsequent 90-day period and continue
thereafter so long as such event continues or fails to occur, as the case
may be; provided that the maximum aggregate increase in the rate of
interest in respect of this Note shall in no event exceed 0.50% per annum.
Such additional interest shall be payable in addition to any other interest
payable from time to time with respect to this Note.
The Company shall pay interest semiannually on February 15 and
August 15 of each year (each such date, an "Interest Payment Date"),
commencing on [August 15, 2005] [first interest payment date relating to
any Additional Notes]. Interest on the Notes shall accrue from [February
17, 2005] [date of issuance of any Additional Notes], or from the most
recent date to which interest has been paid on the Notes. Interest shall be
computed on the basis of a 360-day year comprised of twelve 30-day months.
2. Method of Payment
-----------------
By no later than 11:00 a.m. (New York City time) on the date on
which any principal of or interest on any Note is due and payable, the
Company shall irrevocably deposit with the Trustee or the Paying Agent
money sufficient to pay such principal and/or interest. The Company shall
pay interest (except defaulted interest) to the Persons who are registered
Holders of Notes at the close of business on the February 1 or August 1
next preceding the interest payment date even if Notes are cancelled,
repurchased or redeemed after the record date and on or before the interest
payment date. Holders must surrender Notes to a Paying Agent to collect
principal payments. The Company shall pay principal and interest in money
of the United States that at the time of payment is legal tender for
payment of public and private debts. Payments in respect of Notes
represented by a Global Note (including principal, premium, if any, and
interest) shall be made by the transfer of immediately available funds to
the accounts specified by The Depository Trust Company. The Company may
make all payments in respect of a Definitive Note (including principal,
premium, if any, and interest) by mailing a check to the registered address
of each Holder thereof or by wire transfer to an account located in the
United States maintained by the payee.
3. Paying Agent and Registrar
--------------------------
The Bank of New York, a New York banking corporation (the
"Trustee"), shall initially act as Paying Agent and Registrar. The Company
may appoint and change any Paying Agent or Registrar without notice to any
Noteholder. The Company or any of its domestically organized wholly owned
Subsidiaries may act as Paying Agent.
4. Indenture
---------
The Company issued the Notes under an Indenture dated as of
February 17, 2005 (as it may be amended or supplemented from time to time
in accordance with the terms thereof, the "Indenture"), between the Company
and the Trustee. The terms of the Notes include those stated in the
Indenture and those made part of the Indenture by reference to the Trust
Indenture Act of 1939 (15 U.S.C. xx.xx. 77aaa-77bbbb) as in effect on the
date of the Indenture (the "Trust Indenture Act"). Capitalized terms used
herein and not defined herein have the meanings ascribed thereto in the
Indenture. The Notes are subject to all such terms, and Noteholders are
referred to the Indenture and the Trust Indenture Act for a statement of
those terms. To the extent any provision of this Note conflicts with the
express provisions of the Indenture, the provisions of the Indenture shall
govern and be controlling.
The Notes are senior unsecured obligations of the Company. The
Note is one of the Initial Notes referred to in the Indenture. The Notes
include the Initial Notes issued on the Issue Date, any Additional Notes
issued in accordance with Section 2.15 of the Indenture and the Exchange
Notes issued in exchange for the Initial Notes or Additional Notes pursuant
to the Indenture. The Initial Notes, any Additional Notes and the Exchange
Notes are treated as a single class of securities under the Indenture. The
Indenture imposes certain limitations on the ability of the Company and its
Subsidiaries to create liens, enter into sale and lease-back transactions
and enter into mergers and consolidations.
5. Optional Redemption
-------------------
The Notes shall be redeemable, in whole or in part, at any time
and from time to time, at the option of the Company, at a redemption price
equal to the greater of (i) 100% of the principal amount of such Notes and
(ii) the sum of the present values of the remaining scheduled payments of
principal and interest thereon (exclusive of interest accrued to the date
of redemption) discounted to the redemption date on a semiannual basis
(assuming a 360-day year comprised of twelve 30-day months) at the Treasury
Rate plus 10 basis points (the "Make-Whole Amount"), plus accrued interest
thereon to the redemption date.
"Comparable Treasury Issue" means the United States Treasury
security or securities selected by an Independent Investment Banker as
having a maturity comparable to the remaining term of the Notes to be
redeemed that would be utilized, at the time of selection and in accordance
with customary financial practice, in pricing new issues of corporate debt
securities of a comparable maturity to the remaining term of the Notes to
be redeemed.
"Comparable Treasury Price" means, with respect to any redemption
date for the Notes, (a) the average of the Reference Treasury Dealer
Quotations for such redemption date, after excluding the highest and lowest
of such Reference Treasury Dealer Quotations or (b) if the Company obtains
fewer than four such Reference Treasury Dealer Quotations, the average of
all such Reference Treasury Dealer Quotations.
"Independent Investment Banker" means one of the Reference
Treasury Dealers appointed by the Company.
"Reference Treasury Dealer" means each of X.X. Xxxxxx Securities
Inc. and Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated or their
respective affiliates which are primary United States government securities
dealers, and their respective successors, and two other firms which are
primary U.S. government securities dealers that the Company selects;
provided, however, that if any of the foregoing shall cease to be a primary
U.S. government securities dealer in The City of New York, the Company
shall substitute therefor another such primary U.S. government securities
dealer.
"Reference Treasury Dealer Quotation" means, with respect to each
Reference Treasury Dealer and any redemption date, the average, as
determined by the Company, of the bid and asked prices for the Comparable
Treasury Issue (expressed in each case as a percentage of its principal
amount) quoted in writing to the Company by such Reference Treasury Dealer
as of 3:30 p.m., New York time, on the third Business Day preceding such
redemption date.
"Treasury Rate" means, with respect to any redemption date for
the Notes, the rate per annum equal to the semiannual equivalent yield to
maturity or interpolated (on a day-count basis) of the Comparable Treasury
Issue, assuming a price for the Comparable Treasury Issue (expressed as a
percentage of its principal amount) equal to the Comparable Treasury Price
for such redemption date.
Except as set forth above, the Notes shall not be redeemable by
the Company prior to maturity.
The Notes shall not be entitled to the benefit of any sinking
fund.
6. Notice of Redemption
--------------------
Notice of redemption shall be mailed at least 30 days but not
more than 60 days before the redemption date by first-class mail to each
Holder of Notes to be redeemed at his registered address. Notes in
denominations of principal amount larger than $5,000 may be redeemed in
part but only in integral multiples of $1,000 in excess thereof. If money
sufficient to pay the redemption price of and accrued and unpaid interest
on all Notes (or portions thereof) to be redeemed on the redemption date is
deposited with the Paying Agent on or before 11:00 a.m. (New York City
time) on the redemption date and certain other conditions are satisfied, on
and after such date interest ceases to accrue on such Notes (or such
portions thereof) called for redemption.
7. Registration Rights
-------------------
The Company is party to a Registration Rights Agreement, dated as
of February 17, 2005, between the Company and X.X. Xxxxxx Securities Inc.,
Xxxxxxx Xxxxx & Co., Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated and
the other Initial Purchasers named therein, pursuant to which it is
obligated to pay Additional Interest (as defined therein) upon the
occurrence of certain events specified in the Registration Rights
Agreement.
8. Denominations; Transfer; Exchange
---------------------------------
The Notes are in fully registered form without coupons in
denominations of principal amount of $5,000 and integral multiples of
$1,000 in excess thereof. A Holder may register, transfer or exchange Notes
in accordance with the Indenture. The Registrar may require a Holder, among
other things, to furnish appropriate endorsements or transfer documents and
to pay any taxes and fees required by law or permitted by the Indenture.
The Registrar need not register the transfer of or exchange any Notes
selected for redemption (except, in the case of a Note to be redeemed in
part, the portion of the Note not to be redeemed) for a period beginning 15
days before the mailing of a notice of redemption of Notes to be redeemed
and ending on the date of such mailing.
9. Persons Deemed Owners
---------------------
The registered holder of this Note may be treated as the owner of
it for all purposes.
10. Unclaimed Money
---------------
If money for the payment of principal or interest remains
unclaimed for two years after the date of payment of principal and
interest, the Trustee or Paying Agent shall pay the money back to the
Company at its request. After any such payment, Holders entitled to the
money must look only to the Company and not to the Trustee for payment.
11. Defeasance
----------
Subject to certain conditions set forth in the Indenture, the
Company at any time may terminate some or all of its obligations under the
Notes and the Indenture if the Company deposits with the Trustee money or
U.S. Government Obligations for the payment of principal of and interest on
the Notes to redemption or maturity, as the case may be.
12. Amendment, Waiver
-----------------
Subject to certain exceptions set forth in the Indenture, (i) the
Indenture or the Notes may be amended with the written consent of the
Holders of at least a majority in principal amount of the outstanding Notes
and (ii) any default or noncompliance with any provision of the Indenture
or the Notes may be waived with the written consent of the Holders of a
majority in principal amount of the outstanding Notes. However, the
Indenture requires the consent of each Noteholder that would be affected
for certain specified amendments or modifications of the Indenture and the
Notes. Subject to certain exceptions set forth in the Indenture, without
the consent of any Noteholder, the Company and the Trustee may amend the
Indenture or the Notes to cure any ambiguity, omission, defect or
inconsistency, or to comply with Article V of the Indenture, or to add any
additional Events of Default, or to add additional covenants of or
surrender rights and powers conferred on the Company, or to add or appoint
a successor or separate trustee or other agent, or to comply with any
requirements in connection with qualifying the Indenture under the Trust
Indenture Act, or to provide for uncertificated Notes in addition to or in
place of certificated Notes, or to change any other provision if the change
does not adversely affect the interests of any Noteholder.
13. Defaults and Remedies
---------------------
Under the Indenture, Events of Default include (i) default for 30
days in payment of interest on the Notes; (ii) default in payment of
principal on the Notes at maturity, upon optional redemption, upon
declaration or otherwise; (iii) failure by the Company to comply with any
covenant or agreement in the Indenture or the Notes, subject to notice and
lapse of time; (iv) default in respect of other Debt of the Company or any
Significant Subsidiary with an aggregate principal amount then outstanding
in excess of $25,000,000, which results in the acceleration of such Debt,
subject to certain conditions; and (v) certain events of bankruptcy or
insolvency involving the Company or any Significant Subsidiary.
If an Event of Default occurs and is continuing, the Trustee or
the Holders of at least 25% in aggregate principal amount of the Notes may
declare all the Notes to be due and payable immediately. Certain events of
bankruptcy or insolvency involving the Company are Events of Default which
will result in the Notes being due and payable immediately upon the
occurrence of such Events of Default.
Noteholders may not enforce the Indenture or the Notes except as
provided in the Indenture. The Trustee may refuse to enforce the Indenture
or the Notes unless it receives indemnity or security reasonably
satisfactory to it. Subject to certain limitations, Holders of a majority
in principal amount of the Notes may direct the Trustee in its exercise of
any trust or power. The Trustee may withhold from Noteholders notice of any
continuing Default or Event of Default (except a Default or Event of
Default in payment of principal or interest) if it in good faith determines
that withholding notice is not opposed to their interest.
14. Trustee Dealings with the Company
---------------------------------
Subject to certain limitations set forth in the Indenture, the
Trustee under the Indenture, in its individual or any other capacity, may
become the owner or pledgee of Notes and may otherwise deal with and
collect obligations owed to it by the Company and may otherwise deal with
the Company with the same rights it would have if it were not Trustee.
15. No Recourse Against Others
--------------------------
A director, officer, employee or stockholder (other than the
Company), as such, of the Company shall not have any liability for any
obligations of the Company under the Notes, the Indenture or the
Registration Rights Agreement or for any claim based on, in respect of or
by reason of such obligations or their creation. By accepting a Note, each
Noteholder waives and releases all such liability. The waiver and release
are part of the consideration for the issue of the Notes.
16. Authentication
--------------
This Note shall not be valid until an authorized signatory of the
Trustee (or an authenticating agent acting on its behalf) manually signs
the certificate of authentication on the other side of this Note.
17. Abbreviations
-------------
Customary abbreviations may be used in the name of a Noteholder
or an assignee, such as TEN COM (tenants in common), TEN ENT (tenants by
the entirety), JT TEN (joint tenants with rights of survivorship and not as
tenants in common), CUST (custodian) and U/G/M/A (Uniform Gift to Minors
Act).
18. [CUSIP and ISIN Numbers
-----------------------
The Company has caused CUSIP and ISIN numbers and/or other
similar numbers to be printed on the Notes and has directed the Trustee to
use CUSIP and ISIN numbers and/or other similar numbers in notices of
redemption as a convenience to Noteholders. No representation is made as to
the accuracy of such numbers either as printed on the Notes or as contained
in any notice of redemption and reliance may be placed only on the other
identification numbers placed thereon.] [For Notes to be issued with CUSIP
or ISIN numbers.]
19. Governing Law
-------------
THIS NOTE SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH,
THE LAWS OF THE STATE OF NEW YORK.
ASSIGNMENT FORM
To assign this Note, fill in the form below:
I or we assign and transfer this Note to
(Print or type assignee's name, address and zip code)
(Insert assignee's Social Security or Tax I.D. No.)
and irrevocably appoint as agent to transfer this
Note on the books of the Company. The agent may substitute another
to act for him.
-------------------------------------------------------------------------------
Date: Your Signature:
-------------------------- ----------------------------
Signature Guarantee:
------------------------------------------------
(Signature must be guaranteed by a participant in a recognized Signature
Guarantee Medallion Program or other signature guarantor program reasonably
acceptable to the Trustee)
Sign exactly as your name appears on the other side of this Note.
In connection with any transfer or exchange of any of the certificated
Notes evidenced by this certificate occurring prior to the date that is two
years after the later of the date of original issuance of such Notes and
the last date, if any, on which such Notes were owned by the Company or any
Affiliate of the Company, the undersigned confirms that such Notes are
being transferred:
CHECK ONE BOX BELOW:
(1) [ ] to the Company; or
(2) [ ] for so long as the Notes are eligible for resale pursuant to
Rule 144A under the Securities Act, to a person it
reasonably believes is a "Qualified Institutional Buyer" as
defined in Rule 144A under the Securities Act that purchases
for its own account or for the account of a Qualified
Institutional Buyer to whom notice is given that the
transfer is being made in reliance on Rule 144A; or
(3) [ ] pursuant to the offers and sales that occur outside the
United States within the meaning of Regulation S under the
Securities Act; or
(4) [ ] pursuant to Rule 144 under the Securities Act or any other
available exemption from the registration requirements of
the Securities Act; or
(5) [ ] pursuant to a registration statement that has been declared
effective under the Securities Act.
Unless one of the boxes is checked, the Trustee may refuse to register any
of the certificated Notes evidenced by this certificate in the name of any
Person other than the registered holder thereof; provided, however, that if
box (4) is checked, the Trustee may require, prior to registering any such
transfer of the Notes, such legal opinions, certifications and other
information as the Company has reasonably requested to confirm that such
transfer is being made pursuant to an exemption from, or in a transaction
not subject to, the registration requirements of the Securities Act of
1933, such as the exemption provided by Rule 144 under such Act.
-------------------------------------
Signature
Signature Guarantee:
------------------------------- -------------------------------------
Signature
(Signature must be guaranteed by a
participant in a recognized Signature
Guarantee Medallion Program or other
signature guarantor program reasonably
acceptable to the Trustee)
-------------------------------------------------------------------------------
TO BE COMPLETED BY PURCHASER IF BOX (2) ABOVE IS CHECKED.
The undersigned represents and warrants that it is purchasing
this certificated Note for its own account or an account with respect to
which it exercises sole investment discretion and that it and any such
account is a "qualified institutional buyer" within the meaning of Rule
144A under the Securities Act of 1933, and is aware that the sale to it is
being made in reliance on Rule 144A and acknowledges that it has received
such information regarding the Company as the undersigned has requested
pursuant to Rule 144A or has determined not to request such information and
that it is aware that the transferor is relying upon the undersigned's
foregoing representations in order to claim the exemption from registration
provided by Rule 144A.
Dated:
---------------------------- ---------------------------------------
NOTICE: To be executed by an
executive officer
Signature Guarantee:
---------------------------------- ---------------------------------------
Signature
(Signature must be guaranteed by a
participant in a recognized Signature
Guarantee Medallion Program or other
signature guarantor program reasonably
acceptable to the Trustee)
-------------------------------------------------------------------------------
[TO BE ATTACHED TO GLOBAL SECURITIES]
SCHEDULE OF INCREASES OR DECREASES IN GLOBAL NOTE
The following increases or decreases in this Global Note have been made:
Principal Amount of Signature of
Date of Amount of decrease in Amount of increase in this Global Note authorized signatory
Exchange Principal Amount of Principal Amount of following such of Trustee or
this Global Note this Global Note decrease or increase Securities Custodian
------- --------------------- --------------------- -------------------- --------------------
EXHIBIT B
[FORM OF FACE OF EXCHANGE NOTE]
DOW XXXXX & COMPANY, INC.
3.875% SENIOR NOTES DUE 2008
No. __ Principal Amount $______________
(subject to adjustment as
reflected in the Schedule
of Increases and Decreases
in Global Note attached
hereto)
CUSIP NO. _________
ISIN NO. __________
Dow Xxxxx & Company, Inc., a Delaware corporation, for value
received, promises to pay to _______________, or registered assigns, the
principal sum of _____________ Dollars (subject to adjustment as reflected
in the Schedule of Increases and Decreases in Global Note attached hereto)
on February 15, 2008.
Interest Payment Dates: February 15 and August 15 of each year,
commencing on [August 15, 2005] [first interest payment date relating to
any Additional Notes].
Record Dates: February 1 and August 1 of each year.
Additional provisions of this Note are set forth on the other
side of this Note.
IN WITNESS WHEREOF, DOW XXXXX & COMPANY, INC. has caused this
Note to be duly executed.
Dated:________ ___, 200__
DOW XXXXX & COMPANY, INC.
By
-------------------------------------
Name:
Title:
TRUSTEE'S CERTIFICATE OF
AUTHENTICATION
This is one of the Notes referred
to in the within-mentioned Indenture.
THE BANK OF NEW YORK,
as Trustee
By
---------------------------------
Authorized Signatory
Dated:________ ___, 200__
[FORM OF REVERSE SIDE OF EXCHANGE NOTE]
[Reverse of Note]
3.875% Senior Notes due 2008
1. Interest
--------
Dow Xxxxx & Company, Inc., a Delaware corporation (together with
its successors and assigns under the Indenture hereinafter referred to,
being herein called the "Company"), promises to pay interest on the
principal amount of this Note at the rate of 3.875% per annum.
The Company shall pay interest semiannually on February 15 and
August 15 of each year (each such date, an "Interest Payment Date"),
commencing on [August 15, 2005] [first interest payment date relating to
any Additional Notes]. Interest on the Notes shall accrue from [February
17, 2005] [date of issuance of any Additional Notes], or from the most
recent date to which interest has been paid on the Notes. Interest shall be
computed on the basis of a 360-day year comprised of twelve 30-day months.
2. Method of Payment
-----------------
By no later than 11:00 a.m. (New York City time) on the date on
which any principal of or interest on any Note is due and payable, the
Company shall irrevocably deposit with the Trustee or the Paying Agent
money sufficient to pay such principal and/or interest. The Company shall
pay interest (except defaulted interest) to the Persons who are registered
Holders of Notes at the close of business on the February 1 or August 1
next preceding the Interest Payment Date even if Notes are cancelled,
repurchased or redeemed after the record date and on or before the Interest
Payment Date. Holders must surrender Notes to a Paying Agent to collect
principal payments. The Company shall pay principal and interest in money
of the United States that at the time of payment is legal tender for
payment of public and private debts. Payments in respect of Notes
represented by a Global Note (including principal, premium, if any, and
interest) shall be made by the transfer of immediately available funds to
the accounts specified by The Depository Trust Company. The Company may
make all payments in respect of a Definitive Note (including principal,
premium, if any, and interest) by mailing a check to the registered address
of each Holder thereof or by wire transfer to an account located in the
United States maintained by the payee.
3. Paying Agent and Registrar
--------------------------
The Bank of New York, a New York banking corporation (the
"Trustee"), shall initially act as Paying Agent and Registrar. The Company
may appoint and change any Paying Agent or Registrar without notice to any
Noteholder. The Company or any of its domestically organized wholly owned
Subsidiaries may act as Paying Agent.
4. Indenture
---------
The Company issued the Notes under an Indenture dated as of
February 17, 2005 (as it may be amended or supplemented from time to time
in accordance with the terms thereof, the "Indenture"), between the Company
and the Trustee. The terms of the Notes include those stated in the
Indenture and those made part of the Indenture by reference to the Trust
Indenture Act of 1939 (15 U.S.C. xx.xx. 77aaa-77bbbb) as in effect on the
date of the Indenture (the "Trust Indenture Act"). Capitalized terms used
herein and not defined herein have the meanings ascribed thereto in the
Indenture. The Notes are subject to all such terms, and Noteholders are
referred to the Indenture and the Trust Indenture Act for a statement of
those terms. To the extent any provision of this Note conflicts with the
express provisions of the Indenture, the provisions of the Indenture shall
govern and be controlling.
The Notes are senior unsecured obligations of the Company. The
Note is one of the Exchange Notes referred to in the Indenture. The Notes
include the Initial Notes issued on the Issue Date, any Additional Notes
issued in accordance with Section 2.15 of the Indenture and any Exchange
Notes issued in exchange for the Initial Notes pursuant to the Indenture
and the Registration Rights Agreement. The Initial Notes, any Additional
Notes and the Exchange Notes are treated as a single class of securities
under the Indenture. The Indenture imposes certain limitations on the
ability of the Company and its subsidiaries to create liens, enter into
sale and lease-back transactions and enter into mergers and consolidations.
5. Optional Redemption
-------------------
The Notes shall be redeemable, in whole or in part, at any time
and from time to time, at the option of the Company, at a redemption price
equal to the greater of (i) 100% of the principal amount of such Notes and
(ii) the sum of the present values of the remaining scheduled payments of
principal and interest thereon (exclusive of interest accrued to the date
of redemption) discounted to the redemption date on a semiannual basis
(assuming a 360-day year comprised of twelve 30-day months) at the Treasury
Rate plus 10 basis points (the "Make-Whole Amount"), plus accrued interest
thereon to the redemption date.
"Comparable Treasury Issue" means the United States Treasury
security or securities selected by an Independent Investment Banker as
having an actual or interpolated maturity comparable to the remaining term
of the Notes to be redeemed that would be utilized, at the time of
selection and in accordance with customary financial practice, in pricing
new issues of corporate debt securities of a comparable maturity to the
remaining term of the Notes to be redeemed.
"Comparable Treasury Price" means, with respect to any redemption
date for the Notes, (a) the average of the Reference Treasury Dealer
Quotations for such redemption date, after excluding the highest and lowest
of such Reference Treasury Dealer Quotations or (b) if the Company obtains
fewer than four such Reference Treasury Dealer Quotations, the average of
all such Reference Treasury Dealer Quotations.
"Independent Investment Banker" means one of the Reference
Treasury Dealers appointed by the Company.
"Reference Treasury Dealer" means each of X.X. Xxxxxx Securities
Inc. and Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated or their
respective affiliates which are primary United States government securities
dealers, and their respective successors, and two other firms which are
primary U.S. government securities dealers that the Company selects;
provided, however, that if any of the foregoing shall cease to be a primary
U.S. government securities dealer in The City of New York, the Company
shall substitute therefor another such primary U.S. government securities
dealer.
"Reference Treasury Dealer Quotation" means, with respect to each
Reference Treasury Dealer and any redemption date, the average, as
determined by the Company, of the bid and asked prices for the Comparable
Treasury Issue (expressed in each case as a percentage of its principal
amount) quoted in writing to the Company by such Reference Treasury Dealer
as of 3:30 p.m., New York time, on the third Business Day preceding such
redemption date.
"Treasury Rate" means, with respect to any redemption date for
the Notes, the rate per annum equal to the semiannual equivalent yield to
maturity or interpolated (on a day-count basis) of the Comparable Treasury
Issue, assuming a price for the Comparable Treasury Issue (expressed as a
percentage of its principal amount) equal to the Comparable Treasury Price
for such redemption date.
Except as set forth above, the Notes shall not be redeemable by
the Company prior to maturity
The Notes shall not be entitled to the benefit of any sinking
fund.
6. Notice of Redemption
--------------------
Notice of redemption shall be mailed at least 30 days but not
more than 60 days before the redemption date by first-class mail to each
Holder of Notes to be redeemed at his registered address. Notes in
denominations of principal amount larger than $5,000 may be redeemed in
part but only in integral multiples of $1,000 in excess thereof. If money
sufficient to pay the redemption price of and accrued and unpaid interest
on all Notes (or portions thereof) to be redeemed on the redemption date is
deposited with the Paying Agent on or before 11:00 a.m. (New York City
time) on the redemption date and certain other conditions are satisfied, on
and after such date interest ceases to accrue on such Notes (or such
portions thereof) called for redemption.
7. Denominations; Transfer; Exchange
---------------------------------
The Notes are in fully registered form without coupons in
denominations of principal amount of $5,000 and integral multiples of
$1,000 in excess thereof. A Holder may register transfer or exchange Notes
in accordance with the Indenture. The Registrar may require a Holder, among
other things, to furnish appropriate endorsements or transfer documents and
to pay any taxes and fees required by law or permitted by the Indenture.
The Registrar need not register the transfer of or exchange any Notes
selected for redemption (except, in the case of a Note to be redeemed in
part, the portion of the Note not to be redeemed) for a period beginning 15
days before the mailing of a notice of redemption of Notes to be redeemed
and ending on the date of such mailing.
8. Persons Deemed Owners
---------------------
The registered holder of this Note may be treated as the owner of
it for all purposes.
9. Unclaimed Money
---------------
If money for the payment of principal or interest remains
unclaimed for two years after the date of payment of principal and
interest, the Trustee or Paying Agent shall pay the money back to the
Company at its request. After any such payment, Holders entitled to the
money must look only to the Company and not to the Trustee for payment.
10. Defeasance
----------
Subject to certain conditions set forth in the Indenture, the
Company at any time may terminate some or all of its obligations under the
Notes and the Indenture if the Company deposits with the Trustee money or
U.S. Government Obligations for the payment of principal of and interest on
the Notes to redemption or maturity, as the case may be.
11. Amendment, Waiver
-----------------
Subject to certain exceptions set forth in the Indenture, (i) the
Indenture or the Notes may be amended with the written consent of the
Holders of at least a majority in principal amount of the outstanding Notes
and (ii) any default or noncompliance with any provision of the Indenture
or the Notes may be waived with the written consent of the Holders of a
majority in principal amount of the outstanding Notes. However, the
Indenture requires the consent of each Noteholder that would be affected
for certain specified amendments or modifications of the Indenture and the
Notes. Subject to certain exceptions set forth in the Indenture, without
the consent of any Noteholder, the Company and the Trustee may amend the
Indenture or the Notes to cure any ambiguity, omission, defect or
inconsistency, or to comply with Article V of the Indenture, or to add any
additional Events of Default, or to add additional covenants of or
surrender rights and powers conferred on the Company, or to add or appoint
a successor or separate trustee or other agent, or to comply with any
requirements in connection with qualifying the Indenture under the Trust
Indenture Act, or to provide for uncertificated Notes in addition to or in
place of certificated Notes, or to change any other provision if the change
does not adversely affect the interests of any Noteholder.
12. Defaults and Remedies
---------------------
Under the Indenture, Events of Default include (i) default for 30
days in payment of interest on the Notes; (ii) default in payment of
principal on the Notes at maturity, upon optional redemption, upon
declaration or otherwise; (iii) failure by the Company to comply with any
covenant or agreement in the Indenture or the Notes, subject to notice and
lapse of time; (iv) default in respect of other Debt of the Company or any
Significant Subsidiary with an aggregate principal amount then outstanding
in excess of $25,000,000, which results in the acceleration of such Debt,
subject to certain conditions; and (v) certain events of bankruptcy or
insolvency involving the Company or any Significant Subsidiary.
If an Event of Default occurs and is continuing, the Trustee or
the Holders of at least 25% in aggregate principal amount of the Notes may
declare all the Notes to be due and payable immediately. Certain events of
bankruptcy or insolvency involving the Company are Events of Default which
will result in the Notes being due and payable immediately upon the
occurrence of such Events of Default.
Noteholders may not enforce the Indenture or the Notes except as
provided in the Indenture. The Trustee may refuse to enforce the Indenture
or the Notes unless it receives indemnity or security reasonably
satisfactory to it. Subject to certain limitations, Holders of a majority
in principal amount of the Notes may direct the Trustee in its exercise of
any trust or power. The Trustee may withhold from Noteholders notice of any
continuing Default or Event of Default (except a Default or Event of
Default in payment of principal or interest) if it in good faith determines
that withholding notice is not opposed to their interest.
13. Trustee Dealings with the Company
---------------------------------
Subject to certain limitations set forth in the Indenture, the
Trustee under the Indenture, in its individual or any other capacity, may
become the owner or pledgee of Notes and may otherwise deal with and
collect obligations owed to it by the Company and may otherwise deal with
the Company with the same rights it would have if it were not Trustee.
14. No Recourse Against Others
--------------------------
A director, officer, employee or stockholder (other than the
Company), as such, of the Company shall not have any liability for any
obligations of the Company or under the Notes, the Indenture or the
Registration Rights Agreement or for any claim based on, in respect of or
by reason of such obligations or their creation. By accepting a Note, each
Noteholder waives and releases all such liability. The waiver and release
are part of the consideration for the issue of the Notes.
15. Authentication
--------------
This Note shall not be valid until an authorized signatory of the
Trustee (or an authenticating agent acting on its behalf) manually signs
the certificate of authentication on the other side of this Note.
16. Abbreviations
-------------
Customary abbreviations may be used in the name of a Noteholder
or an assignee, such as TEN COM (tenants in common), TEN ENT (tenants by
the entirety), JT TEN (joint tenants with rights of survivorship and not as
tenants in common), CUST (custodian) and U/G/M/A (Uniform Gift to Minors
Act).
17. [CUSIP and ISIN Numbers
-----------------------
The Company has caused CUSIP and ISIN numbers and/or other
similar numbers to be printed on the Notes and has directed the Trustee to
use CUSIP and ISIN numbers and/or other similar numbers in notices of
redemption as a convenience to Noteholders. No representation is made as to
the accuracy of such numbers either as printed on the Notes or as contained
in any notice of redemption and reliance may be placed only on the other
identification numbers placed thereon.] [For Notes to be issued with CUSIP
or ISIN numbers.]
18. Governing Law
-------------
THIS NOTE SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH,
THE LAWS OF THE STATE OF NEW YORK.
ASSIGNMENT FORM
To assign this Note, fill in the form below:
I or we assign and transfer this Note to
(Print or type assignee's name, address and zip code)
(Insert assignee's Social Security or Tax I.D. No.)
and irrevocably appoint as agent to transfer this
Note on the books of the Company. The agent may substitute another
to act for him.
-------------------------------------------------------------------------------
Date: Your Signature:
-------------------------- ----------------------------
Signature Guarantee:
------------------------------------------------
(Signature must be guaranteed by a participant in a recognized Signature
Guarantee Medallion Program or other signature guarantor program reasonably
acceptable to the Trustee)
-------------------------------------------------------------------------------
Sign exactly as your name appears on the other side of this Note.
EXHIBIT C - Form of
Regulation S Certificate
REGULATION S CERTIFICATE
(For transfers pursuant to Sections
2.6(a), (c) and (e) of the Indenture)
To: THE BANK OF NEW YORK,
as Trustee
Re: Dow Xxxxx & Company, Inc. - 3.875% Senior Notes
due 2008 (the "Notes")
Reference is made to the Indenture, dated as of February 17, 2005
(the "Indenture"), between Dow Xxxxx & Company, Inc. (the "Company") and
The Bank of New York, as Trustee. Terms used herein and defined in the
Indenture or in Regulation S or Rule 144 under the U.S. Securities Act of
1933, as amended (the "Securities Act") are used herein as so defined.
This certificate relates to U.S.$________ principal amount of
Notes, which are evidenced by the following certificate(s) (the "Specified
Notes"):
CUSIP No(s). ___________________________
CERTIFICATE No(s). ___________________
The person in whose name this certificate is executed below (the
"undersigned") hereby certifies that either (i) it is the sole beneficial
owner of the Specified Notes or (ii) it is acting on behalf of all the
beneficial owners of the Specified Notes and is duly authorized by them to
do so. Such beneficial owner or owners are referred to herein collectively
as the "Owner". If the Specified Notes are represented by a Global Note,
they are held through DTC or an Agent Member in the name of the
undersigned, as or on behalf of the Owner. If the Specified Notes are not
represented by a Global Note, they are registered in the name of the
undersigned, as or on behalf of the Owner.
The Owner has requested that the Specified Notes be transferred
to a person (the "Transferee") who will take delivery in the form of a
Regulation S Note. In connection with such transfer, the Owner hereby
certifies that, unless such transfer is being effected pursuant to an
effective registration statement under the Securities Act, it is being
effected in accordance with Rule 903 or 904 or Rule 144 under the
Securities Act and with all applicable securities laws of the states of the
United States and other jurisdictions. Accordingly, the Owner hereby
further certifies as follows:
1. Rule 903 or 904 Transfers. If the transfer is being effected
in accordance with Rule 903 or 904:
(a) the Owner is not a distributor of the Notes, an affiliate of
the Company or of any such distributor or a person acting on behalf of
any of the foregoing;
(b) the offer of the Specified Notes was not made to a person in
the United States;
(c) either:
(i) at the time the buy order was originated, the Transferee
was outside the United States or the Owner and any person acting on
its behalf reasonably believed that the Transferee was outside the
United States, or
(ii) the transaction is being executed in, on or through the
facilities of a designated offshore securities market (as defined in
Regulation S) and neither the Owner nor any person acting on its
behalf knows that the transaction has been prearranged with a buyer in
the United States;
(d) no directed selling efforts have been made in the United
States by or on behalf of the Owner or any affiliate thereof;
(e) if the Owner is a dealer in Notes or has received a selling
concession, fee or other remuneration in respect of the Specified
Notes, and the transfer is to occur during the Restricted Period, then
the requirements of Rule 904(c)(1) have been satisfied; and
(f) the transaction is not part of a plan or scheme to evade the
registration requirements of the Securities Act.
2. Rule 144 Transfers. If the transfer is being effected pursuant
to Rule 144:
(a) the transfer is occurring after February 17, 2006 and is
being effected in accordance with the applicable amount, manner of
sale and notice requirements of Rule 144; or
(b) the transfer is occurring after February 17, 2007 and the
Owner is not, and during the preceding three months has not been, an
affiliate of the Company.
This certificate and the statements contained herein are made for
your benefit and the benefit of the Company and the Initial Purchasers.
Dated:
----------------------------------------
(Print the name of the undersigned, as
such term is defined in the second
paragraph of this certificate)
By:
-------------------------------------
Name:
Title:
(If the undersigned is a corporation,
partnership or fiduciary, the title
of the person signing on behalf of
the undersigned must be stated)
EXHIBIT D - Form of
Rule 144A Certificate
RULE 144A CERTIFICATE
(For transfers pursuant to Sections
2.6(b), (c), (d) and (e) of the Indenture)
To: THE BANK OF NEW YORK,
as Trustee
Re: Dow Xxxxx & Company, Inc. - 3.875% Senior
Notes due 2008 (the "Notes")
Reference is made to the Indenture, dated as of February 17,
2005, (the "Indenture"), between Dow Xxxxx & Company, Inc. (the "Company")
and The Bank of New York, as Trustee. Terms used herein and defined in the
Indenture or in Regulation S or Rule 144 under the U.S. Securities Act of
1933, as amended (the "Securities Act") are used herein as so defined.
This certificate relates to U.S.$________ principal amount of
Notes, which are evidenced by the following certificate(s) (the "Specified
Notes"):
CUSIP No(s). __________________________
CERTIFICATE No(s). ____________________
The person in whose name this certificate is executed below (the
"undersigned") hereby certifies that either (i) it is the sole beneficial
owner of the Specified Notes or (ii) it is acting on behalf of all the
beneficial owners of the Specified Notes and is duly authorized by them to
do so. Such beneficial owner or owners are referred to herein collectively
as the "Owner". If the Specified Notes are represented by a Global Note,
they are held through DTC or an Agent Member in the name of the
undersigned, as or on behalf of the Owner. If the Specified Notes are not
represented by a Global Note, they are registered in the name of the
Undersigned, as or on behalf of the Owner.
The Owner has requested that the Specified Notes be transferred
to a person (the "Transferee") who will take delivery in the form of a Rule
144A Note. In connection with such transfer, the Owner hereby certifies
that, unless such transfer is being effected pursuant to an effective
registration statement under the Securities Act, it is being effected in
accordance with Rule 144A or Rule 144 under the Securities Act and with all
applicable securities laws of the states of the United States and other
jurisdictions. Accordingly, the Owner hereby further certifies as:
1. Rule 144A Transfers. If the transfer is being effected in
accordance with Rule 144A:
(a) the Specified Notes are being transferred to a person that
the Owner and any person acting on its behalf reasonably believe is a
"qualified institutional buyer" within the meaning of Rule 144A, acquiring
for its own account or for the account of a qualified institutional buyer;
and
(b) the Owner and any person acting on its behalf have taken
reasonable steps to ensure that the Transferee is aware that the Owner is
relying on Rule 144A in connection with the transfer; and
2. Rule 144 Transfers. If the transfer is being effected pursuant
to Rule 144:
(a) the transfer is occurring after February 17, 2006 and is
being effected in accordance with the applicable amount, manner of sale and
notice requirements of Rule 144; or
(b) the transfer is occurring after February 17, 2007 and the
Owner is not, and during the preceding three months has not been, an
affiliate of the Company.
This certificate and the statements contained herein are made for
your benefit and the benefit of the Company and the Initial Purchasers.
Dated:
----------------------------------------
(Print the name of the undersigned, as
such term is defined in the second
paragraph of this certificate)
By:
-------------------------------------
Name:
Title:
(If the undersigned is a corporation,
partnership or fiduciary, the title
of the person signing on behalf of
the undersigned must be stated)
EXHIBIT E - Form of
Incumbency Certificate
INCUMBENCY CERTIFICATE
The undersigned, ____________, being the ____________ of
____________ (the "Company") does hereby certify that the individuals
listed below are qualified and acting officers of the Company as set forth
in the adjacent right column opposite their respective names and the
signatures appearing in the far right column opposite the name of each such
officer is a true specimen of the genuine signature of such officer and
such individuals have the authority to execute documents to be delivered
to, or upon the request of, The Bank of New York, as Trustee under the
Indenture dated as of _________ __, 20__, between the Company and The Bank
of New York, as Trustee.
Name Title Signature
---- ----- ---------
----------------- ----------------- -----------------
----------------- ----------------- -----------------
----------------- ----------------- -----------------
IN WITNESS WHEREOF, the undersigned has duly executed and
delivered this Certificate as of the ____ day of ________, 20__.
-------------------------------
Name:
Title:
