EXHIBIT 4.8
INDENTURE
dated as of [______], 200[_]
GRAFTECH INTERNATIONAL LTD.
Company
[------------]
Trustee
TABLE OF CONTENTS
PAGE
CROSS-REFERENCE TABLE................................................................................I
ARTICLE 1 DEFINITIONS AND INCORPORATION BY REFERENCE...........................................2
SECTION 1.01 Definitions..................................................................2
SECTION 1.02 Other Definitions...........................................................19
SECTION 1.03 Incorporation by Reference of Trust Indenture Act...........................20
SECTION 1.04 Rules of Construction.......................................................20
ARTICLE 2 THE SECURITIES......................................................................22
SECTION 2.01 Issuable in Series; General Limitations; Terms of Particular Series;
Form; Denominations.........................................................22
SECTION 2.02 Execution and Authentication................................................25
SECTION 2.03 Registrar, Paying Agent and Ownership.......................................27
SECTION 2.04 Paying Agent to Hold Money in Trust.........................................29
SECTION 2.05 Lists of Holders............................................................29
SECTION 2.06 Registered Securities.......................................................29
SECTION 2.07 Transfer and Exchange.......................................................32
SECTION 2.08 Replacement Securities......................................................35
SECTION 2.09 Outstanding Securities......................................................36
SECTION 2.10 Temporary Securities........................................................36
SECTION 2.11 Cancellation................................................................37
SECTION 2.12 Defaulted Interest..........................................................37
SECTION 2.13 CUSIP Numbers and ISIN......................................................38
SECTION 2.14 Medium-Term Securities......................................................38
ARTICLE 3 REDEMPTION..........................................................................38
SECTION 3.01 Notices to Trustee..........................................................38
SECTION 3.02 Selection of Securities to Be Redeemed......................................38
SECTION 3.03 Notice of Redemption........................................................39
SECTION 3.04 Effect of Notice of Redemption..............................................40
SECTION 3.05 Deposit of Redemption Price.................................................40
SECTION 3.06 Securities Redeemed in Part.................................................40
SECTION 3.07 Provisions with Respect to any Sinking Funds................................41
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TABLE OF CONTENTS
(continued)
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ARTICLE 4 COVENANTS...........................................................................42
SECTION 4.01 Payment of Securities.......................................................42
SECTION 4.02 SEC Reports.................................................................42
SECTION 4.03 Change of Control...........................................................42
SECTION 4.04 Limitation on Sale of the Capital Stock of the Issuer.......................44
SECTION 4.05 Future Guarantors...........................................................44
SECTION 4.06 Compliance Certificate......................................................44
SECTION 4.07 Further Instruments and Acts................................................44
ARTICLE 5 SUCCESSOR COMPANY...................................................................44
SECTION 5.01 When the Company, the Issuer, Guarantors and Other Obligors May Merge
or Transfer Assets..........................................................44
ARTICLE 6 DEFAULTS AND REMEDIES...............................................................47
SECTION 6.01 Events of Default...........................................................47
SECTION 6.02 Acceleration................................................................50
SECTION 6.03 Other Remedies..............................................................50
SECTION 6.04 Waiver of Past Defaults.....................................................50
SECTION 6.05 Control by Majority.........................................................51
SECTION 6.06 Limitation on Suits.........................................................51
SECTION 6.07 Rights of Holders to Receive Payment........................................51
SECTION 6.08 Collection Suit by Trustee..................................................51
SECTION 6.09 Trustee May File Proofs of Claim............................................52
SECTION 6.10 Priorities..................................................................52
SECTION 6.11 Undertaking for Costs.......................................................52
SECTION 6.12 Waiver of Stay or Extension Laws............................................53
ARTICLE 7 TRUSTEE.............................................................................53
SECTION 7.01 Duties of Trustee...........................................................53
SECTION 7.02 Rights of Trustee...........................................................54
SECTION 7.03 Individual Rights of Trustee................................................55
SECTION 7.04 Trustee's Disclaimer........................................................55
SECTION 7.05 Notice of Defaults..........................................................55
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TABLE OF CONTENTS
(continued)
PAGE
SECTION 7.06 Reports by Trustee to Holders...............................................55
SECTION 7.07 Compensation and Indemnity..................................................56
SECTION 7.08 Replacement of Trustee......................................................56
SECTION 7.09 Successor Trustee by Merger.................................................57
SECTION 7.10 Eligibility; Disqualification...............................................58
SECTION 7.11 Preferential Collection of Claims Against Company...........................58
ARTICLE 8 SATISFACTION AND DISCHARGE OF INDENTURE; DEFEASANCE.................................58
SECTION 8.01 Satisfaction and Discharge of Liability on Securities; Defeasance...........58
SECTION 8.02 Conditions to Defeasance....................................................59
SECTION 8.03 Application of Trust Money..................................................61
SECTION 8.04 Repayment to Company........................................................61
SECTION 8.05 Indemnity for Government Obligations........................................61
SECTION 8.06 Reinstatement...............................................................61
ARTICLE 9 AMENDMENTS..........................................................................62
SECTION 9.01 Without Consent of Holders..................................................62
SECTION 9.02 With Consent of Holders.....................................................63
SECTION 9.03 Compliance with Trust Indenture Act.........................................65
SECTION 9.04 Revocation and Effect of Consents and Waivers...............................65
SECTION 9.05 Notation on or Exchange of Securities.......................................65
SECTION 9.06 Trustee to Sign Amendments..................................................66
SECTION 9.07 Payment for Consent.........................................................66
SECTION 9.08 Reference in Securities to Supplemental Indenture...........................66
ARTICLE 10 GUARANTIES..........................................................................66
SECTION 10.01 Guaranties..................................................................66
SECTION 10.02 Limitation of Liability.....................................................68
SECTION 10.03 Successors and Assigns......................................................68
SECTION 10.04 No Waiver...................................................................68
SECTION 10.05 Modification................................................................69
SECTION 10.06 Release of Subsidiary Guarantor.............................................69
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TABLE OF CONTENTS
(continued)
PAGE
SECTION 10.07 Contribution................................................................69
SECTION 10.08 Guaranty Agreement..........................................................69
ARTICLE 11 PROVISIONS APPLICABLE TO SUBORDINATED SECURITIES....................................70
SECTION 11.01 Agreement to Subordinate....................................................70
SECTION 11.02 Liquidation, Dissolution, Bankruptcy........................................70
SECTION 11.03 Default on Senior Indebtedness..............................................71
SECTION 11.04 Acceleration of Payment of Securities.......................................72
SECTION 11.05 When Distribution Must Be Paid Over.........................................72
SECTION 11.06 Subrogation.................................................................72
SECTION 11.07 Relative Rights.............................................................72
SECTION 11.08 Subordination May Not Be Impaired by Company or Guarantor...................73
SECTION 11.09 Rights of Trustee and Paying Agent..........................................73
SECTION 11.10 Distribution or Notice to Representative....................................73
SECTION 11.11 Article 11 Not to Prevent Events of Default or Limit Right to
Accelerate..................................................................73
SECTION 11.12 Trust Moneys Not Subordinated...............................................73
SECTION 11.13 Trustee Entitled to Rely....................................................74
SECTION 11.14 Trustee to Effectuate Subordination.........................................74
SECTION 11.15 Trustee Not Fiduciary for Holders of Senior Indebtedness....................74
SECTION 11.16 Reliance by Holders of Senior Indebtedness on Subordination Provisions......74
ARTICLE 12 MISCELLANEOUS.......................................................................75
SECTION 12.01 Trust Indenture Act Controls................................................75
SECTION 12.02 Notices.....................................................................75
SECTION 12.03 Communication by Holders with Other Holders.................................76
SECTION 12.04 Certificate and Opinion as to Conditions Precedent..........................76
SECTION 12.05 Statements Required in Certificate or Opinion...............................76
SECTION 12.06 When Securities Disregarded.................................................77
SECTION 12.07 Rules by Trustee, Paying Agent and Registrar................................77
SECTION 12.08 Proof of Execution..........................................................77
SECTION 12.09 Requests; Demands; Other Matters............................................77
SECTION 12.10 Legal Holidays..............................................................79
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(continued)
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SECTION 12.11 Severability................................................................79
SECTION 12.12 Governing Law...............................................................79
SECTION 12.13 No Recourse Against Others..................................................79
SECTION 12.14 Successors..................................................................79
SECTION 12.15 Multiple Originals..........................................................79
SECTION 12.16 Table of Contents; Headings.................................................79
Exhibit 1: Form of Security
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CROSS-REFERENCE TABLE
TIA SECTION INDENTURE SECTION
----------- -----------------
310(a) (1) 7.10
(a) (2) ........................................... 7.10
(a) (3) ........................................... N.A.
(a) (4) ........................................... N.A.
(b) ........................................... 7.08; 7.10
(c) ........................................... N.A.
311(a) ........................................... 7.11
(b) ........................................... 7.11
(c) ........................................... N.A.
312(a) ........................................... 2.05
(b) ........................................... 12.03
(c) ........................................... 12.03
313(a) ........................................... 7.06
(b) (1) ........................................... N.A.
(b) (2) ........................................... 7.06
(c) ........................................... N.A.
(d) ........................................... 7.06
314(a) ........................................... 4.02; 12.02
(b) ........................................... N.A.
(c) (1) ........................................... 12.04
(c) (2) ........................................... 12.04
(c) (3) ........................................... N.A.
(d) ........................................... N.A.
(e) ........................................... 12.05
(f) ........................................... N.A.
315(a) ........................................... 7.01
(b) ........................................... 7.05; 12.02
(c) ........................................... 7.01
(d) ........................................... 7.01
(e) ........................................... 6.11
316(a) (last sentence) ........................................... 12.06
(a) (1)(A) ........................................... 6.05
(a) (1)(B) ........................................... 6.04
(a) (2) ........................................... N.A.
(b) ........................................... 6.07
317(a) (1) ........................................... 6.08
(a) (2) ........................................... 6.09
(b) ........................................... 2.04
318(a) ........................................... 12.01
------------------------
N.A. means Not Applicable.
Note: This Cross-Reference Table shall not, for any purpose, be deemed to be
part of the Indenture.
I
INDENTURE dated as of [______], 200[_] among GrafTech International
Ltd., a Delaware corporation (the "Company"), the other parties designated as
parties hereto on Schedule 1 hereto (in the capacities, to the extent and in
relation to one or more series of notes, debentures, bonds or other evidences of
indebtedness (collectively, "debt securities") as identified on Schedule 1
hereto), and [____________], a trust company organized under the laws of the
State of New York, as trustee (the "Trustee").
W I T N E S S E T H:
Capitalized and other terms used herein shall have the meanings
assigned to them herein.
The Company has duly authorized the execution and delivery hereof to
provide for the issuance, from time to time, of one or more series of debt
securities by the Company or one or more of its subsidiaries. The issuer of each
series of debt securites has duly authorized the execution and delivery hereof
in relation to such series. Each series of debt securities may be senior or
subordinated and collaterally secured or unsecured, or a combination thereof, as
described in the Schedule 1 hereto with respect to such series. Each series of
debt securities may be guaranteed by the Company or one or more of its
subsidiaries, as described in the Schedule 1 hereto with respect to such series.
Guarantees may be full or limited, senior or subordinated and collaterally
secured or unsecured, or a combination thereof. To the extent that a series of
debt securities is guaranteed, the guarantees will have the provisions set forth
herein and one or more supplements hereto, as described in the Schedule 1 hereto
with respect to such series. To the extent that a series of debt securities or
related guarantees are collaterally secured, the security interest will be
granted under and subject hereto and one or more supplements hereto, security
agreements, pledge agreements, mortgages, intercreditor agreements, lien
subordination agreements and other documents, as described in the Schedule 1
hereto with respect to such series. This Indenture does not limit the aggregate
principal amount of debt securities or any series of debt securities, or the
number of series of debt securities, that may be issued hereunder.
The debt securities may be offered and sold, from time to time, in one
or more offerings through brokers or agents; to underwriters for public offering
and resale by them; to dealers acting as principals; directly to purchasers
(which may include institutional and other investors); or through a combination
of such methods. They may be offered and sold at a fixed price or prices; market
prices prevailing at the time of sale; prices related to such prevailing prices;
prices determined through an auction or bidding process; or negotiated prices.
With respect to each offering, the applicable prospectus supplement will
describe, among other things, the terms of the offering of the securities
offered thereby.
The Company and the Trustee, and the other parties hereto (in the
capacities, to the extent and in relation to Securities as identified in the
Series Supplement relating to such series), for the benefit of each other and
the Holders of Securities or of any series thereof and Coupons, as follows:
ARTICLE 1
Definitions and Incorporation by Reference
SECTION 1.01 Definitions.
"Affiliate" of a Person means any other Person, directly or indirectly,
controlling or controlled by or under common control with such specified Person.
For the purposes of this definition, when used with respect to a Person,
"control" means the power to direct the management and policies of such Person,
directly or indirectly, whether through the ownership of voting securities, by
contract or otherwise. For the purposes of this definition, the terms
"controlling" and "controlled" have correlative meanings.
"Antitrust Fines" means monies payable by the Company in respect of
antitrust matters to (1) the U.S. Department of Justice, relating to fines
assessed in 1998, and (2) the antitrust authority of the European Union,
relating to fines assessed in July 2001.
"Attributable Debt" with respect to a Sale/Leaseback Transaction in
respect of a series of Securities means, as at the time of determination, the
present value (discounted at the interest rate borne by such series, compounded
annually) of the total obligations of the lessee for rental payments during the
remaining term of the lease included in such Sale/Leaseback Transaction
(including any period for which such lease has been extended); provided,
however, that if such Sale/Leaseback Transaction results in a Capital Lease
Obligation, the amount of Indebtedness represented thereby will be determined in
accordance with the definition of "Capital Lease Obligation."
"Authorized Newspaper" means a newspaper, in an official language of
the place of publication or in the English language, customarily published on
each day that is a Business Day in the place of publication (whether or not
published on days that are Legal Holidays in the place of publication), of
general circulation in each place in connection with which the term is used or
in the financial community of each such place. Where successive publications are
required to be made in Authorized Newspapers, the successive publications may be
made in the same or in different newspapers in the same place and in each case
on any day that is a Business Day in such place.
"Bankruptcy Law" means Xxxxx 00, Xxxxxx Xxxxxx Code, or any similar
foreign, federal, State, provincial, local or other law for the relief of
debtors.
"Bearer Security" means any Security (except a Registered Security), in
the form established pursuant to Article 2 and payable to the bearer.
"Board of Directors" of a Person means the board of directors (or
comparable governing body) of such Person or any committee thereof duly
authorized to act on behalf of such board (or body).
2
"Business Day" means each day which is not a Legal Holiday.
"Capital Lease Obligation" means an obligation that is required to be
classified and accounted for as a capital lease for financial reporting purposes
in accordance with GAAP. The amount of Indebtedness represented by such
obligation shall be the capitalized amount of such obligation determined in
accordance with GAAP. The Stated Maturity of such obligation shall be the date
of the last payment of rent or any other amount due under such lease prior to
the first date upon which such lease may be terminated by the lessee without
payment of a penalty.
"Capital Stock" of a Person means any and all shares, warrants,
options, participations and equivalents of and interests in, and rights to
purchase (however designated), equity of such Person, including Preferred Stock
and partnership interests, but excluding debt securities convertible into or
exchangeable or exercisable for such equity.
"Change of Control" in respect of a series of Securities means the
first to occur of any of the following events:
(1) any Person (as such term is used in Sections 13(d) and 14(d)
of the Exchange Act) is or becomes the beneficial owner (as defined in
Rules 13d-3 and 13d-5 under the Exchange Act, except that, for
purposes of this clause (1), (A) such Person shall be deemed to have
beneficial ownership of all Voting Stock of the Company that such
Person has the right to acquire, whether such right is exercisable
immediately or only after the passage of time, and (B) such Person
shall be deemed to beneficially own any Voting Stock of the Company
held by any other Person, if such Person is the beneficial owner (as
otherwise defined in this clause (1), directly or indirectly, of more
than 35% of the voting power of the Voting Stock of such other
Person), directly or indirectly, of more than 35% of the total voting
power of the Voting Stock of the Company;
(2) individuals who on the Issue Date of such series constituted
the Board of Directors of the Company (together with any new directors
whose election by the Board of Directors of the Company was, or whose
nomination for election by the stockholders of the Company was,
approved by a vote of 66-2/3% of the directors of the Company then
still in office who were either directors on such Issue Date or whose
election or nomination for election was previously so approved) cease
for any reason to constitute a majority of the Board of Directors of
the Company then in office;
(3) the adoption of a plan relating to the liquidation,
dissolution or winding up of the Company;
(4) the merger or consolidation of the Company with or into
another Person, the merger of another Person with the Company or the
sale of all or substantially all of the assets of the Company
(determined on a consolidated basis in accordance with GAAP) to
another Person or Persons, other than a transaction following which
(A) in the case of a merger or consolidation, holders of securities
that represented 100% of the Voting Stock of the Company immediately
prior to such merger or consolidation (or
3
other securities into which such securities are converted as part of
such merger or consolidation) hold directly or indirectly at least a
majority of the voting power of the Voting Stock of the surviving
Person in such merger or consolidation immediately after such merger
or consolidation and in substantially the same proportion as before
such merger or consolidation and (B) in the case of a sale of assets,
(i) the transferee Person or Persons becomes or become a guarantor or
guarantors in respect of such series and (ii) either (x) such
transferee or transferees constitutes or constitute a direct or
indirect Subsidiary or Subsidiaries of the transferor of such assets
or (y) holders of securities that represented 100% of the Voting Stock
of the Company immediately prior to such sale of assets hold, directly
or indirectly, at least a majority of the voting power of the Voting
Stock of the transferee or transferees (or a Person or Persons of whom
such transferee or transferees are direct or indirect Wholly Owned
Subsidiaries) immediately after such sale of assets and in
substantially the same proportion as before such sale of assets; or
(5) the Company ceases to own, directly or indirectly, all of the
voting power of the Voting Stock of GrafTech Global, UCAR Carbon and
the Issuer of such series.
"Code" means the Internal Revenue Code of 1986, as amended.
"Collateral Agent" in respect of a series of Securities means each
collateral agent under any Security Document relating to such series.
"Collateral Obligor" in respect of a series of Securities means each
obligor under any Security Document relating to such series.
"Collateral Security" in respect of a series of Securities means the
security interest, if any, in the Securities or the Guaranties, if any, granted
pursuant to a Series Supplement relating to such series and under and subject to
an applicable Security Document relating to such series.
"Company" means GrafTech International Ltd., a corporation organized
under the laws of the State of Delaware, and its successors.
"Consolidated Net Worth" means the total of the amounts shown on the
consolidated balance sheet of the Company, determined in accordance with GAAP,
as of the end of the most recent fiscal quarter of the Company for which
consolidated financial statements are publicly available, as the sum of:
(1) the par or stated value of all of the outstanding Capital
Stock of the Company; plus
(2) all paid-in capital or capital surplus (however described)
relating to such Capital Stock; plus
(3) all accumulated other comprehensive income, retained earnings
and earned surplus, less (A) any accumulated deficit and accumulated
other comprehensive
4
loss, (B) any amounts attributable to Disqualified Stock and (C) any
cost of treasury stock.
"Coupon" means any interest coupon appertaining to a Bearer Security.
"Credit Agreement" means:
(1) the Credit Agreement dated as of February 22, 2000 among the
Company, GrafTech Global, GrafTech Finance, certain of the other
Subsidiaries of the Company, the lenders thereunder, JPMorgan Chase
Bank, as Administrative Agent, X.X. Xxxxxx Securities Inc. and Credit
Suisse First Boston, as Joint-Lead Arrangers, and Chase Securities
Inc. and Credit Suisse First Boston, as Syndication Agents, together
with the documents related thereto (including the term loans and
revolving loans thereunder, the guarantees related thereto and the
security documents related thereto), as amended, extended, renewed,
restated, supplemented or otherwise modified (in whole or in part and
without limitation as to amount, terms, conditions, covenants and
other provisions) from time to time, and any agreement or agreements
(and related documents) governing Indebtedness incurred to Refinance,
in whole or in part, the borrowings and commitments then outstanding
or permitted to be outstanding under such Credit Agreement or a
successor to such Credit Agreement, whether by the same or any other
lender or group of lenders; or
(2) if the credit facility described in clause (1) above is not
then in place, the principal senior secured credit facility of the
Company and its Subsidiaries then in place, together with the
documents related thereto (including the term loans and revolving
loans thereunder, the guarantees related thereto and the security
documents related thereto), as amended, extended, renewed, restated,
supplemented or otherwise modified (in whole or in part and without
limitation as to amount, terms, conditions, covenants and other
provisions) from time to time, and any agreement or agreements (and
related documents) governing Indebtedness incurred to Refinance, in
whole or in part, the borrowings and commitments then outstanding or
permitted to be outstanding under such credit facility or a successor
to such credit facility, whether by the same or any other lender or
group of lenders.
"Custodian" means any receiver, trustee, assignee, liquidator,
custodian or similar official under any Bankruptcy Law.
"Default" in respect of a series of Securities means any event which
is, or after notice or passage of time or both would be, an Event of Default
with respect to such series.
"Definitive Security" in respect of a series of Securities means a
certificated Registered Security of that series that is issued in definitive,
fully registered form without interest coupons and that does not include the
global legend set forth under the global legend caption in Exhibit 1 hereto and
that represents (1) individually the amount of Registered Securities of that
series held by each Holder of Securities of that series and (2) collectively the
aggregate the amount of
5
Registered Securities of that series held by all Holders of Registered
Securities of that series, where the certificates are registered in the names of
the respective Holders of Securities of that series.
"Depositary" in respect of a series of Securities issuable or issued as
a Global Security means, unless otherwise specified by the Issuer of such series
pursuant to Section 2.01(c)(7), The Depository Trust Company, New York, New
York, or any nominee thereof or successor thereto registered as a clearing
agency under the Exchange Act.
"[DESIGNATED SENIOR INDEBTEDNESS]" in respect of a series of Securities
means any Senior Indebtedness which is specifically designated by the Company or
the Issuer of such series in the instrument evidencing or governing such Senior
Indebtedness.
"Disqualified Stock" in respect of a series of Securities, with respect
to any Person, means any Capital Stock which by its terms (or by the terms of
any security into which it is convertible or for which it is exchangeable at the
option of the holder) or upon the happening of any event:
(1) matures or is mandatorily redeemable pursuant to a sinking
fund obligation or otherwise;
(2) is convertible or exchangeable at the option of the holder
for Indebtedness or Disqualified Stock; or
(3) is mandatorily redeemable or must be purchased upon the
occurrence of certain events or otherwise, in whole or in part;
in each case on or prior to the first anniversary of the Stated Maturity of such
series; provided, however, that any Capital Stock that would not constitute
Disqualified Stock but for provisions thereof giving holders thereof the right
to require such Person to purchase or redeem such Capital Stock upon the
occurrence of a "change of control" occurring prior to the first anniversary of
the Stated Maturity of such series shall not constitute Disqualified Stock if:
(1) the "change of control" provisions applicable to such Capital
Stock are not more favorable to the holders of such Capital Stock in a
material respect than the terms with respect to such series hereunder;
and
(2) any such requirement only becomes operative after compliance
with such terms with respect to such series, including the purchase of
any Securities of such series tendered pursuant thereto.
The amount of any Disqualified Stock that does not have a fixed redemption,
repayment or repurchase price will be calculated in accordance with the terms of
such Disqualified Stock as if such Disqualified Stock were redeemed, repaid or
repurchased as of the date on which the amount of such Disqualified Stock is
being determined; provided, however, that if such
6
Disqualified Stock could not be required to be redeemed, repaid or repurchased
at such date, the redemption, repayment or repurchase price will be the book
value of such Disqualified Stock as reflected in the most recent financial
statements of such Person.
"Exchange Act" means the Securities Exchange Act of 1934, as amended.
"Foreign Restricted Subsidiary" in respect of a series of Securities
means a Restricted Subsidiary that is incorporated in a jurisdiction other than
the United States of America or a State thereof and with respect to which more
than 80% of any of its sales, earnings or assets (determined on a consolidated
basis in accordance with GAAP) are located in, generated from or derived from
operations located outside the United States of America and the States thereof.
"GAAP" in respect of a series of Securities means generally accepted
accounting principles in the United States of America as in effect as of the
Issue Date of such series, including those set forth in:
(1) opinions and pronouncements of the Accounting Principles
Board of the American Institute of Certified Public Accountants;
(2) statements and pronouncements of the Financial Accounting
Standards Board;
(3) rules and regulations of the Public Company Accounting
Oversight Board, including opinions and pronouncements of its staff in
bulletins and similar written statements;
(4) statements by such other entity as may be approved by a
significant segment of the accounting profession; and
(5) rules and regulations of the SEC governing the inclusion of
financial statements (including pro forma financial statements) in
periodic reports required to be filed pursuant to Section 13 of the
Exchange Act, including opinions and pronouncements of its staff in
staff accounting bulletins and similar written statements.
"GENCO" means Graphite Electrode Network LLC, a limited liability
company under the laws of the State of Delaware, and its successors.
"Global Security" in respect of a series of Securities means a
Registered Security of that series that is registered in the name of, and
delivered to, the Depositary for that series (or pursuant to such Depositary's
instruction), which represents (and is denominated in an amount equal to) the
aggregate principal amount of, all of the outstanding Registered Securities of
that series or any portion thereof.
"GrafTech Finance" means GrafTech Finance Inc., a corporation organized
under the laws of the State of Delaware, and its successors.
7
"GrafTech Global" means GrafTech Global Enterprises Inc., a corporation
organized under the laws of the State of Delaware, and its successors.
"Guarantee" of a Person means any obligation, contingent or otherwise,
of such Person directly or indirectly guaranteeing any Indebtedness of any other
Person and any obligation, direct or indirect, contingent or otherwise, of such
Person:
(1) to purchase or pay (or advance or supply funds for the
purchase or payment of) Indebtedness of such other Person (whether
arising by virtue of partnership agreements or arrangements,
agreements to keep-well, agreements to purchase assets, goods,
securities or services or to take-or-pay (in each case, other than in
the ordinary course of business), agreements to maintain financial
statement conditions, or otherwise); or
(2) entered into for the purpose of assuring in any other manner
the obligee of such Indebtedness 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. When used as a verb,
the term "Guarantee" shall have a correlative meaning.
"Guaranties" in respect of a series of Securities means collectively
the Parent Guaranty and the Subsidiary Guaranties.
"Guarantors" in respect of a series of Securities means collectively
the Parent Guarantor and the Subsidiary Guarantors.
"Guaranty Agreement" in respect of a series of Securities means a
supplemental indenture, in a form reasonably acceptable to the Trustee (or
containing recitations and other matters in a form reasonably acceptable to the
Trustee, which recitations and matters are included in a supplemental indenture
that relates to other matters provided for in Article 9), pursuant to which a
Guarantor guarantees the obligations of the Issuer of such series of Securities
on the same terms provided in Article 10 and Section 12.12 hereof.
"Hedging Obligations" of a Person means the obligations of such Person
pursuant to (1) any interest rate swap agreement, interest rate cap agreement or
other financial agreement or arrangement designed to protect such Person against
fluctuations in interest rates or (2) any foreign exchange contract, currency
swap agreement or other similar agreement designed to protect such Person
against fluctuations in currency values.
"Holder" in respect of a series of Securities means (1) in the case of
any Registered Security, the Person in whose name such Registered Security is
registered on the Registrar's books and (2) in the case of any Bearer Security
of such series (including any Coupon appertaining thereto), the bearer thereof.
8
"Incur" means issue, assume, Guarantee, incur or otherwise become
liable for; provided, however, that any Indebtedness or Capital Stock of a
Person existing at the time such Person becomes a Restricted Subsidiary (whether
by merger, consolidation, acquisition or otherwise) shall be deemed to be
Incurred by such Person at the time it becomes a Restricted Subsidiary. When
used as a noun, the term "Incurrence" shall have a correlative meaning.
"Indebtedness" of any Person as of any date of determination means
(without duplication):
(1) the principal in respect of (A) indebtedness of such Person
for money borrowed and (B) indebtedness evidenced by notes,
debentures, bonds or other similar instruments for the payment of
which such Person is responsible or liable, including, in each case,
any premium on such indebtedness to the extent such premium has become
due and payable;
(2) all Capital Lease Obligations of such Person and all
Attributable Debt in respect of Sale/Leaseback Transactions entered
into by such Person;
(3) all obligations of such Person issued or assumed as the
deferred purchase price of property, all conditional sale obligations
of such Person and all obligations of such Person under any title
retention agreement regarding the purchase of such property (but, in
each case, excluding trade accounts payable arising in the ordinary
course of business);
(4) all obligations of such Person for the reimbursement of any
obligor on any letter of credit, banker's acceptance or similar credit
transaction (other than obligations with respect to letters of credit
securing (A) payment of the Antitrust Fines or (B) obligations (other
than obligations described in clauses (1) through (3) above) entered
into in the ordinary course of business of such Person, in each case,
to the extent that such letters of credit are not drawn upon or, if
and to the extent drawn upon, such drawing is reimbursed no later than
the tenth Business Day following the draw;
(5) all obligations of such Person with respect to the
redemption, repayment or other repurchase of any Disqualified Stock of
such Person or, with respect to any Preferred Stock of any Subsidiary
of such Person, the principal amount of such Preferred Stock
determined in accordance with Section 1.04(10) (but excluding, in each
case, all accrued dividends);
(6) all obligations of the type described in clauses (1) through
(5) above of other Persons and all dividends of other Persons for the
payment of which, in either case, such Person is responsible or
liable, directly or indirectly, as obligor, guarantor or otherwise,
including by means of any Guarantee;
(7) all obligations of the type described in clauses (1) through
(6) above of other Persons secured by any Lien on any property of such
Person (whether or not such
9
obligation is assumed by such Person), the amount of such obligation
being deemed to be the lesser of the value of such property and the
amount of the obligation so secured; and
(8) to the extent not otherwise included in this definition, all
Hedging Obligations of such Person.
The amount of Indebtedness of any Person as of any date shall be the outstanding
balance at such date of all unconditional obligations described above and the
maximum liability, upon the occurrence of the contingency giving rise to the
obligation, at such date of any contingent obligation as determined in
accordance with GAAP; provided, however, that in the case of Indebtedness sold
at a discount, the amount of such Indebtedness at any time will be the accreted
value thereof at such time as determined in accordance with GAAP. For the
avoidance of doubt, Indebtedness that is redeemed, defeased, retired or
otherwise repaid shall no longer be considered Indebtedness.
"Indenture" in respect of a series of Securities means this Indenture,
as amended or supplemented from time to time, including the terms of such series
set forth in any Series Supplement with respect to such series, as (and only as)
it relates to such series.
"Interest" on an Original Issue Discount Security which by its terms
bears interest only after Stated Maturity means interest payable after Stated
Maturity.
"Interest Payment Date" in respect of a series of Securities means a
Regular Interest Payment Date or a Special Interest Payment Date, as the case
may be.
"Investment" in any Person means:
(1) any direct or indirect advance, loan or other extension of
credit (including by way of Guarantee or similar arrangement) to or
for such Person, but in each case excluding trade accounts payable
arising in the ordinary course of business;
(2) any direct or indirect capital contribution (by means of any
transfer of cash or other property or any payment for property or
services, but in each case excluding transfers or payments in the
ordinary course of business) in or to such Person; or
(3) any direct or indirect purchase or acquisition of Capital
Stock, Indebtedness or other similar instruments issued by such
Person.
Except as otherwise provided herein, the amount of an Investment shall be its
fair value at the time the Investment is made and without giving effect to
subsequent changes in value. For purposes of the definition of "Unrestricted
Subsidiary":
(1) the term "Investment" shall include the portion
(proportionate to the Company's direct or indirect equity interest in
such Subsidiary) of the fair market value of the net assets of any
Subsidiary of the Company at the time that such Subsidiary is
10
designated an Unrestricted Subsidiary; provided, however, that upon a
redesignation of such Subsidiary as a Restricted Subsidiary, the
Company shall be deemed to continue to have a permanent "Investment"
in an Unrestricted Subsidiary in the amount (if positive) equal to (A)
the Company's Investment (as otherwise defined in this definition) in
such Subsidiary at the time of such redesignation less (B) the portion
(proportionate to the Company's direct or indirect equity interest in
such Subsidiary) of the fair market value of the net assets of such
Subsidiary at the time of such redesignation; and
(2) any property transferred to or from an Unrestricted
Subsidiary, by or to the Company or a Restricted Subsidiary, shall be
valued at its fair market value at the time of such transfer, in each
case as determined in good faith by the Board of Directors of the
Company, whose good faith determination shall be conclusive.
For purposes of valuing an Investment in a joint venture or an Unrestricted
Subsidiary, the book value of non-cash contributions shall be used unless the
Investment constitutes a line of business, in which case the fair market value
of the line of business shall be used. For purposes of valuing an Investment,
contributions of Capital Stock (other than Disqualified Stock) of the Company
shall be treated as having zero book value.
"Issue Date" in respect of a series of Securities means the date on
which such series of Securities is initially issued.
"Issuer" in respect of a series of Securities means the party named as
such (which may be the Company) in the Series Supplement as to such series,
including any amendment to Schedule 1 hereto, until a successor replaces it and,
thereafter, means the successor and, for purposes of any provision contained
herein and as required by the TIA, each other obligor on such series (but not
including any Guarantors or Collateral Obligors of such series).
"Lien" means any mortgage, pledge, security interest, encumbrance, lien
or charge of any kind (including any conditional sale or other title retention
agreement or any lease in the nature thereof).
"Maturity" in respect of any series of Securities means the date on
which the principal of such series becomes due and payable as provided herein or
in the Series Supplement relating to such series, whether at the Stated
Maturity, by declaration of acceleration or call for redemption, or otherwise.
"Obligations" with respect to any Indebtedness means all obligations
for principal, premium, interest, penalties, fees, indemnification,
reimbursement and other amounts payable pursuant to the documentation governing
such Indebtedness.
"Officer" of a Person means the Chairman of the Board, the President,
any Vice President, the Treasurer, an Assistant Treasurer, the Controller, an
Assistant Controller, the Secretary or an Assistant Secretary (or any individual
with a different title performing the functions comparable to any individual
with any of the preceding titles) of such Person.
11
"Officers' Certificate" of a Person means a certificate signed by two
Officers of such Person, one of whom shall be the Chairman of the Board, the
President or a Vice President of such Person (or any individual with a different
title performing the functions comparable to any individual with any of the
preceding titles) and the other of whom shall be the Treasurer, an Assistant
Treasurer, the Controller, an Assistant Controller, the Secretary or an
Assistant Secretary of such Person (or any individual with a different title
performing the functions comparable to any individual with any of the preceding
titles).
"Opinion of Counsel" means a written opinion of legal counsel, in form
and substance reasonably acceptable to the Trustee. Such legal counsel may be an
employee of or counsel to the Company or any of its Subsidiaries.
"Original Issue Discount Security" means (1) any Security which
provides for an amount less than the stated principal thereof to be due and
payable upon a declaration of acceleration of the Stated Maturity thereof and
(2) any other Security deemed to be an original issue discount security for U.S.
federal income tax purposes.
"Parent Guaranty" in respect of a series of Securities means a Guaranty
by a Parent Guarantor of the obligations of the Issuer of such series in respect
of such Securities.
"Parent Guarantor" in respect of a series of Securities means (1) the
Company, if it (a) is designated a Guarantor of the obligations of the Issuer of
such series, in respect of such Securities in the Series Supplement with respect
to such series (including any amendment to Schedule 1 hereto), and (b) executes
and delivers to the Trustee on the Issue Date for such series a Guaranty
Agreement designating it a Parent Guarantor, and (2) each successor to the
Company that Guarantees such obligations pursuant hereto.
"Person" means any individual, corporation, partnership, limited
liability company, joint venture, association, joint stock company, trust or
unincorporated organization, any government or agency or political subdivision
thereof or any other entity.
"Preferred Stock" of a Person means Capital Stock of such Person of any
class or classes (however designated) which is preferred as to the payment of
dividends or distributions by, or as to the distribution of assets upon any
voluntary or involuntary liquidation, dissolution or winding up of, such Person
over shares of Capital Stock of any other class of such Person.
"principal" of Indebtedness or a debt security means the principal of
such Indebtedness or debt security, plus the premium, if any, payable thereon
which is due or overdue or is to become due at the relevant time.
"Public Equity Offering" means an underwritten primary public offering
of common stock of the Company pursuant to an effective registration statement
under the Securities Act, including a primary public offering conducted
concurrently or together with a secondary public offering.
12
"Qualified Receivables Transaction" means any transaction or series of
transactions by the Company or any of its Subsidiaries pursuant to which the
Company or any of its Subsidiaries sells, conveys, discounts, factors or
otherwise transfers to any other Person (other than the Company or a Subsidiary
of the Company), or grants a security interest to any such other Person in, any
accounts receivable (whether now existing or arising in the future) of the
Company or any of its Subsidiaries and any asset related thereto, including all
collateral securing the accounts receivable, all contracts, guarantees and other
obligations in respect of the accounts receivable, all proceeds of the accounts
receivable and all other assets which are customarily transferred, or in respect
of which security interests are customarily granted, in connection with asset
securitization, factoring or similar transactions involving accounts receivable.
"Refinance" in respect of any Indebtedness means to refinance, extend,
renew, refund, repay, prepay, redeem, defease or retire, or to issue other
Indebtedness in exchange or replacement for, such Indebtedness. The terms
"Refinanced" and "Refinancing" shall have correlative meanings.
"Record Date" means a Regular Record Date or a Special Record Date, as
the case may be.
"Registered Security" means any Security established pursuant to
Article 2 which is registered on the Registrar's books.
"Regular Interest Payment Date", in respect of any installment of
interest on any series of Securities which by its terms bears interest at any
time, means the date (other than a Special Interest Payment Date) on which such
installment becomes due and payable.
"Regular Record Date" for interest payable on any Registered Security
of a series on any Regular Interest Payment Date in respect of such series means
the date (other than a Special Record Date) specified in respect of such
Registered Security of such series as the Record Date for the determination of
Holders of such series entitled to receive payment of such interest.
"Related Business" in respect of a series of Securities means any
business in which the Company or any of its Subsidiaries were engaged on the
Issue Date for such series and any business related, ancillary or complementary
to any such business.
"Representative" means any trustee, agent or representative, if any,
for an issue of [DESIGNATED SENIOR INDEBTEDNESS].
"Restricted Subsidiary" in respect of a series of Securities means any
Subsidiary of the Company that is not an Unrestricted Subsidiary in respect of
such series. Unless otherwise stated, reference to "Restricted Subsidiaries"
means Restricted Subsidiaries in respect of the series of Securities as to which
the determination is being made.
"Revolving Credit Facility" means:
13
(1) any revolving credit facility provided in the Credit Agreement;
(2) any local operating line of credit (however designated) under which
a Subsidiary of the Company is the borrower; and
(3) in either case, any other Indebtedness that Refinances, in whole or
in part, any such revolving credit facility or line of credit or any successor
thereto.
"Sale/Leaseback Transaction" in respect of a series of Securities means
an arrangement relating to property owned by the Company or a Restricted
Subsidiary on the Issue Date for such series or thereafter acquired by the
Company or a Restricted Subsidiary whereby the Company or a Restricted
Subsidiary transfers such property to a Person and the Company or a Restricted
Subsidiary leases it from such Person.
"SEC" means the U.S. Securities and Exchange Commission.
"Security" or "Securities" means any debt security or debt securities
of any series that is issued, executed, authenticated and delivered from time to
time pursuant hereto and, unless the context requires otherwise, includes the
Coupons appertaining to any Bearer Security (whether or not the Coupons have
been detached).
"Securities Act" means the Securities Act of 1933, as amended.
"Securities Custodian" in respect of a series of Securities means the
custodian with respect to a Global Security (as appointed by the Depositary for
such series), or any successor Person thereto, and shall initially be the
Trustee.
"Security Document" as to a series of Securities means any supplement,
security agreement, pledge agreement, mortgage, intercreditor agreement, lien
subordination agreement and other document as may be required to evidence
Collateral Security relating to such series.
"Senior Indebtedness" in respect of a series of Securities or any
related Guaranty, with respect to any Person on any date of determination,
means:
(1) Indebtedness of such Person, whether outstanding on the Issue
Date for such series or thereafter Incurred; and
(2) accrued and unpaid interest (including interest accruing on
or after the filing of any petition in bankruptcy or for
reorganization relating to such Person, whether or not post-filing
interest is allowed in such proceeding) in respect of (A) indebtedness
of such Person for money borrowed and (B) indebtedness evidenced by
notes, debentures, bonds or other similar instruments for the payment
of which such Person is responsible or liable;
14
unless, in the case of clauses (1) and (2), in the instrument creating or
evidencing the same or pursuant to which the same is outstanding, it is provided
that such obligations are junior or subordinate in right of payment to such
series or such Guaranty, as the case may be; provided, however, that Senior
Indebtedness shall not include:
(1) any obligation of such Person to any Subsidiary of such
Person;
(2) any liability for foreign, federal, State, provincial, local
or other taxes owed or owing by such Person;
(3) any accounts payable or other liability to trade creditors
arising in the ordinary course (including guarantees thereof and
instruments evidencing such liabilities);
(4) any Indebtedness of such Person (and any accrued and unpaid
interest in respect thereof) which is junior or subordinate in right
of payment or junior or subordinate in any respect to any other
Indebtedness or other obligation of such Person, including any
Subordinated Obligations; or
(5) that portion of any Indebtedness which at the time of
Incurrence is Incurred in violation hereof.
"Series Supplement" with respect to a series means, collectively, one
or more supplemental indentures and Security Documents setting forth the
specific terms of such series, including any amended Schedule 1 as to such
series and the form of Security for such series. A Series Supplement may add to,
delete from or change any provision hereof as to a series created thereby.
"Significant Subsidiary" means any Restricted Subsidiary that would be
a significant subsidiary of the Company within the meaning of Rule 1-02 under
Regulation S-X promulgated by the SEC.
"Special Interest Payment Date" in respect of a series of Securities
means the date of payment of any defaulted interest pursuant to Section 2.12.
"Special Record Date" in respect of any Registered Securities of a
series means the date fixed by the Issuer in respect of such Registered
Securities of such series as the special Record Date for the determination of
Holders of such Registered Securities of such series entitled to receive payment
of defaulted interest on the Special Interest Payment Date with respect to such
series pursuant to Section 2.12.
"Stated Maturity" of any Indebtedness means the date specified by the
documents governing such Indebtedness as the fixed date on which the final
payment of principal of such Indebtedness is due and payable, including payment
pursuant to any mandatory redemption provision (but excluding any provision
providing for the repurchase of such Indebtedness at the
15
option of the holder thereof upon the happening of any contingency unless such
contingency has occurred).
"Subordinated Obligation" in respect of a series of Securities or any
related Guaranty, with respect to any Person, means any Indebtedness of such
Person (whether outstanding on the Issue Date for such series or thereafter
Incurred) which is junior or subordinate in right of payment to such series or
such Guaranty, as the case may be, pursuant to a written agreement to that
effect.
"Subsidiary" of a Person means any corporation, association,
partnership, limited liability company, joint venture, joint stock company,
trust, unincorporated organization or other business entity of which more than
50% of the total voting power of Voting Stock is at the time owned or
controlled, directly or indirectly, by:
(1) such Person;
(2) such Person and one or more Subsidiaries of such Person; or
(3) one or more Subsidiaries of such Person.
"Subsidiary Guarantor" in respect of a series of Securities means (1)
each Subsidiary of the Company that (a) is designated a Subsidiary Guarantor in
respect of such Securities in the Series Supplement with respect to such series
and (b) executes and delivers to the Trustee a Guaranty Agreement on the Issue
Date for such series designating it a Subsidiary Guarantor, (2) each other
Subsidiary of the Company that thereafter Guarantees such obligations by
executing and delivering to the Trustee a Guaranty Agreement designating it a
Subsidiary Guarantor pursuant to the terms hereof, and (3) each successor to any
Subsidiary described in clause (1) or (2) that Guarantees such obligations
pursuant hereto.
"Subsidiary Guaranty" in respect of a series of Securities, means a
Guaranty by a Subsidiary Guarantor of the obligations of the Issuer of such
series with respect to such series.
"Temporary Cash Investments" means:
(1) any investment in direct obligations of the United States of
America or any agency thereof or any obligations guaranteed by the
United States of America or any agency thereof;
(2) any investment in a time deposit account, certificate of
deposit or money market deposit maturing within 180 days of the date
of acquisition thereof issued by a bank or trust company which is
organized under the laws of the United States of America, any State
thereof or any foreign country recognized by the United States of
America, which bank or trust company has capital, surplus and
undivided profits aggregating in excess of $50.0 million (or the
foreign currency equivalent thereof) and has outstanding long-
16
term debt (or whose parent holding company has outstanding long-term
debt) rated "A" (or a foreign equivalent rating) or higher by at least
one nationally recognized statistical rating organization as defined
in Rule 436 under the Securities Act (or the foreign equivalent
thereof), in a money-market fund sponsored by a registered
broker-dealer or mutual fund distributor;
(3) any repurchase obligation with a term of not more than 30
days for underlying securities of the types described in clause (1)
entered into with a bank meeting the qualifications described in
clause (2);
(4) any investment in commercial paper maturing not more than 180
days after the date of acquisition issued by a corporation (other than
an Affiliate of the Company) organized and in existence under the laws
of the United States of America, any State thereof, or any foreign
country recognized by the United States of America with a rating at
the time as of which any investment therein is made of "P-1" (or the
foreign equivalent thereof) or higher according to Xxxxx'x Investors
Service, Inc. (or the foreign equivalent thereof) or "A-1" (or the
foreign equivalent thereof) or higher according to Standard and Poor's
Ratings Group (or the foreign equivalent thereof);
(5) any investment in securities with maturities of six months or
less from the date of acquisition issued or fully guaranteed by any
State of the United States of America, or by any political subdivision
or taxing authority thereof, which is rated at least "A" by Standard &
Poor's Ratings Group or "A-2" by Xxxxx'x Investors Service, Inc.; and
(6) in the case of any Foreign Restricted Subsidiary, any
investment:
(A) in direct obligations of the sovereign nation (or any
agency thereof) in which such Foreign Restricted Subsidiary is
organized and is conducting business or in obligations fully and
unconditionally guaranteed by such sovereign nation (or any
agency thereof); provided, that such obligations have a rating of
"A" (or the foreign equivalent thereof) or higher by at least one
nationally recognized statistical rating organization as defined
in Rule 436 under the Securities Act (or the foreign equivalent
thereof);
(B) of the type and maturity described in clauses (1)
through (5) of foreign obligors, which investments or obligors
(or the parents of such obligors) have ratings described in such
clauses or the foreign equivalent ratings from the foreign
equivalent agencies; or
(C) of the type and maturity described in clauses (1)
through (5) of foreign obligors (or the parents of such
obligors), which investments or obligors (or the parents of such
obligors) are not rated as provided in such clauses or in clause
(6)(B) but which are, in the reasonable judgment of the Company,
comparable in investment quality to such investments and obligors
(or the parents of such obligors); provided, that the aggregate
face amount outstanding at any
17
time of such investments of all Foreign Restricted Subsidiaries
made pursuant to this clause (6)(C) does not exceed $50.0
million;
(7) any investment in a mutual fund whose investment guidelines
restrict such funds' investments to those satisfying clauses (1)
through (5); and
(8) any investment in a time deposit account, certificate of
deposit or money market deposit in an aggregate face amount not in
excess of 1% of the total consolidated assets of the Company (as
determined in accordance with GAAP) as of the end of the Company's
most recently completed fiscal year.
"Term Loan Facility" means:
(1) any term loan facility provided in the Credit Agreement; and
(2) in either case, any other Indebtedness that Refinances, in whole or
in part, any such term loan facility or line of credit or any successor thereto.
"TIA" means the Trust Indenture Act of 1939 (15 U.S.C. xx.xx.
77aaa-77bbbb) as in effect on the date hereof.
"Trustee" of a series of Securities means the party named as such
herein as to such series of Securities until a successor replaces it and,
thereafter, means the successor trustee relating to such series of Securities.
"Trust Officer" means any officer of the Trustee assigned by the
Trustee to administer its corporate trust matters.
"UCAR Carbon" means UCAR Carbon Company Inc., a corporation organized
under the laws of the State of Delaware, and its successors.
"Unrestricted Subsidiary" in respect of a series of Securities means:
(1) any Subsidiary of the Company that at the time of
determination shall be designated an Unrestricted Subsidiary in
respect of such series by the Board of Directors of the Company (or
its Chief Financial Officer, if the Subsidiary is not a Significant
Subsidiary) in the manner provided below; and
(2) any Subsidiary of such a Subsidiary;
provided, however, that the Company shall not be entitled to designate the
Issuer of such series as an Unrestricted Subsidiary in respect of such series.
The Board of Directors of the Company (or its Chief Financial Officer,
if the Subsidiary is not a Significant Subsidiary) may designate any Subsidiary
of the Company (including any newly acquired or newly formed Subsidiary) to be
an Unrestricted Subsidiary in respect of any
18
or all series of Securities unless such Subsidiary or any of its Subsidiaries
owns any Capital Stock or Indebtedness of, or holds any Lien on any property of,
the Company or any other Subsidiary of the Company (excluding any other
Unrestricted Subsidiary and any Subsidiary of the Subsidiary to be so
designated); provided, however, that, if any Series Supplement contains a
covenant that limits investments, dividends or similar payments, either: (1) the
Subsidiary to be so designated has total assets of $1,000 or less; or (2) if the
Subsidiary to be so designated has assets greater than $1,000, then in each such
case an investment, dividend or similar payment in an amount equal to such
Subsidiary's consolidated net assets (as defined in such Series Supplement)
would be permitted under the applicable covenant.
The Board of Directors of the Company (or its Chief Financial Officer,
if the Subsidiary is not a Significant Subsidiary) may at any time designate any
Unrestricted Subsidiary to be a Restricted Subsidiary in respect of such series;
provided, however, that immediately after giving effect to such designation (1)
no Default with respect to such series shall have occurred and be continuing and
(2) if any Series Supplement contains a covenant that limits incurrence of
Indebtedness based on a financial measure, the Company could Incur $1.00 of
additional Indebtedness under such covenant.
Any designation of an Unrestricted Subsidiary or designation of an
Unrestricted Subsidiary as a Restricted Subsidiary by the Board of Directors of
the Company or its Chief Financial Officer, as the case may be, shall be
evidenced to the Trustee by promptly filing with the Trustee a copy of the
resolution of the Board of Directors of the Company giving effect to such
designation, if any, and an Officers' Certificate of the Company certifying that
such designation complied with the preceding provisions.
"U.S. Government Obligations" means direct obligations (or certificates
representing an ownership interest in such obligations) of the United States of
America (or any agency thereof) for the payment of which the full faith and
credit of the United States of America is pledged and which are not callable at
the issuer's option.
"Voting Stock" of a Person means any and all classes of Capital Stock
of such Person then outstanding and normally entitled (without regard to the
occurrence of any contingency) to vote in the election of directors, managers or
trustees thereof.
"Wholly Owned Subsidiary" of a Person means a Subsidiary of such
Person, at least 97% of the Capital Stock of which (other than directors'
qualifying or other legally required shares) is owned by such Person or one or
more other Wholly Owned Subsidiaries of such Person. Unless otherwise stated,
reference to "Wholly Owned Subsidiary" means a Wholly Owned Subsidiary in
respect of the series of Securities as to which the determination is being made.
SECTION 1.02 Other Definitions.
Term Defined in Section
---- ------------------
"Agent Members" .................................. 2.06(f)
"Bearer Paying Agent" ............................ 2.03
19
Term Defined in Section
---- ------------------
"Blockage Notice" ................................ 11.03
"Change of Control Offer" ........................ 4.03(b)
"covenant defeasance option" ..................... 8.01(b)
"Debt Obligations" ............................... 10.01
"defaulted interest" ............................. 4.01
"Event of Default" ............................... 6.01
"Legal Defeasance Option" ........................ 8.01(b)
"Legal Holiday" .................................. 12.09
"Pari Passu Indebtedness" ........................ 11.01(a)
"pay the Subordinated Series" .................... 11.03
"Paying Agent" ................................... 2.03
"Payment Blockage Period" ........................ 11.03
"Registrar" ...................................... 2.03
"Registered Paying Agent" ........................ 2.03
"retiring Trustee"................................ 7.08(g)
"Subordinated Indebtedness"....................... 11.01(a)
"Subordinated Series" ............................ 11.01(b)
"Successor Company" .............................. 5.01
SECTION 1.03 Incorporation by Reference of Trust Indenture Act. This
Indenture is subject to the mandatory provisions of the TIA which are
incorporated by reference in and made a part hereof. The following TIA terms
have the following meanings:
"Commission" means the SEC;
"indenture securities" means the Securities of any series;
"indenture security holder" means a Holder;
"indenture to be qualified" means this Indenture;
"indenture trustee" means the Trustee; and
"obligor" on the indenture securities of any series means the Issuer of
such series and any other obligor on the indenture securities of such series.
All other TIA terms used herein that are defined by the TIA, defined by TIA
reference to another statute or defined by SEC rule have the meanings assigned
to them by such definitions.
SECTION 1.04 Rules of Construction. Unless the context otherwise
requires:
(1) a term has the meaning assigned to it;
20
(2) an accounting term not otherwise defined has the meaning
assigned to it in accordance with GAAP;
(3) the word "or" is not exclusive;
(4) the word "including" means including without limitation;
(5) the word "agency" used in reference to any government or
governmental authority or body includes instrumentality, authority and
body;
(6) the word "State" used in reference to the United States of
America includes commonwealths thereof and the District of Columbia;
(7) the words "asset" and "property" are interchangeable and have
identical meanings;
(8) words in the singular include the plural and words in the
plural include the singular, as applicable;
(9) unsecured Indebtedness shall not be deemed to be junior or
subordinate in right of payment to secured Indebtedness merely by
virtue of its nature as unsecured Indebtedness;
(10) the principal amount of any Preferred Stock shall be (i) the
maximum liquidation value of such Preferred Stock or (ii) the maximum
mandatory redemption or mandatory repurchase price with respect to
such Preferred Stock, whichever is greater;
(11) references to "$" shall mean U.S. dollars;
(12) unless otherwise stated, any reference to a defined term
herein shall be a reference to such defined term in respect of the
series of Securities as to which the determination is being made;
(13) the words "herein", "hereof", "hereto" and "hereunder" and
other words of similar import refer to this Indenture as a whole and
not to any particular Article, Section or other subdivision hereof;
and
(14) all references to the date on which Securities of any series
were originally issued shall refer to the date on which any Securities
of such series were first issued, executed, authenticated, delivered
and paid for.
21
ARTICLE 2
The Securities
SECTION 2.01 Issuable in Series; General Limitations; Terms of
Particular Series; Form; Denominations.
(a) Except as otherwise provided in Schedule 1 hereto in relation
to a series of Securities as such Schedule 1 is then in effect, Securities
(including additional Securities of a series that is or previously has been
outstanding) may be issued, executed, authenticated, delivered and outstanding
hereunder, from time to time and at any time, in one or more series, without
limitation as to the number of series or the aggregate principal amount of any
series in particular or all series hereunder. Securities may have the terms
(including Guaranties and Collateral Security), be offered, sold and purchased
(and the purchase price or other consideration therefor paid or delivered) as
described in the recitals hereto.
(b) The Board of Directors of the Company shall authorize the
creation of each series of Securities by adopting a resolution or resolutions
setting forth, or authorizing the Officers of the Company to approve, the
general terms thereof, in detail satisfactory to it (whose determination thereof
shall be conclusive). The Board of Directors of the Issuer of a series of
Securities shall create such series by adopting a resolution or resolutions
approving, or authorizing the Officers of the Company to approve, a Series
Supplement (which may include an amendment or supplement to Schedule 1 hereto).
The creation of such series shall become effective upon delivery to the Trustee
of an Officers' Certificate of the Company and the Issuer of such series or, if
later, at such time as shall be specified in such Officers' Certificate;
provided, however, that, if the Trustee determines that the terms of such series
would impose upon it additional duties or expose it to additional liabilities,
then such creation shall not become effective until the Trustee shall have
accepted such Series Supplement (including any such amendment or supplement to
Schedule 1 hereto). The Board of Directors of the Issuer or the Officers of the
Issuer may at any time terminate the existence of any series of Securities (and
any related Guaranty or Security Document) as to which no Securities of such
series are then outstanding.
The Board of Directors or comparable governing body of any Guarantor or
Collateral Obligor on a series of Securities shall authorize the granting of
such Guaranty or Collateral Security by adopting a resolution or resolutions
approving such grant, or authorizing the Officers of the Company to approve such
grant. The creation of such Guaranty or Collateral Security as to such series
shall become effective upon delivery of an Officers' Certificate from such
Guarantor or Collateral Obligor to the Trustee or, if later, at such time as
shall be specified in such Officers' Certificate; provided, however, that, if
the Trustee determines that the terms of such Guaranty or Collateral Security
would impose upon it additional duties or expose it to additional liabilities,
then such creation shall not become effective until the Trustee shall have
accepted such Officers' Certificate.
(c) The Series Supplement for each series of Securities shall set
forth:
22
(1) the issuer, title and type of the series, including whether
the Securities of such series are Original Issue Discount Securities;
(2) the currency or currencies or unit or units based on or
related to currencies (or method for determining the currency or
currencies or unit or units) in which the Securities of such series
will be denominated and in which payments of principal of, premium, if
any, and interest on Securities of such series shall or may be
payable;
(3) the aggregate principal amount of the Securities of such
series;
(4) the maturity date or dates of the Securities of such series;
(5) the interest rate (or method for determining the interest
rate) on the Securities of the series (including provisions relating
to the accrual and computation of interest, including the dates from
and to which interest will accrue, and provisions relating to fixed,
variable or participatory interest rates, if any);
(6) the provisions relating to payment of principal of and
premium, if any, and interest, if any, on the Securities of the series
(including provisions relating to record dates and payment dates and
places and provisions relating to rights to defer payments or extend
payment dates, if any); and, if any of the Securities of such series
are to be issuable as Bearer Securities, whether provisions relating
to payment of interest in respect of any portion of a temporary Bearer
Security in global form payable in respect of an interest payment date
therefor prior to the exchange, if any, of such temporary bearer
Security for a definitive Security shall be paid to any clearing
organization with respect to the portion of such temporary Bearer
Security held for its account (and the terms and conditions, including
any certification requirements, on which any such interest payment
received by a clearing organization will be credited to the Persons
entitled to interest payable on such date);
(7) if different from the provisions herein, the provisions
relating to issuance of the Securities of the series in (A) registered
form or in bearer form (including any restrictions applicable to the
offer, sale or delivery of Securities in bearer form and the terms, if
any, upon which Securities in bearer form may be exchanged for
Securities in registered form and vice versa; and the date as of which
any such Security in bearer form shall be dated (if other than the
date of original issuance of the first of such Securities to be
issued); and any restrictions, if any, applicable to the offer, sale
or delivery thereof and the terms, if any, upon which Securities in
bearer form may be exchanged for Securities in registered form, and
vice versa), or a combination thereof, (B) if Securities of the series
will be issuable in registered form, the provisions relating to the
issuance of the series in definitive form or in global form (including
the date as of which any such Security in global form shall be dated,
if other than the date of original issuance of the first of such
Securities to be issued; and the terms and conditions, if any, upon
which such security in global form may be exchanged in whole or in
part for other individual Securities and the depositary for such
security in global form (if other than the depositary
23
specified herein)), or a combination thereof, or (C) if Securities of
the series will be issuable in bearer form, with Coupons or without
Coupons, or a combination thereof;
(8) the additions to, deletions from or other changes, if any, to
the Events of Default set forth herein that shall be applicable to the
Securities of the series (including grace periods and provisions
relating to acceleration and additional interest, if any);
(9) the portion of the principal amount of the Securities of the
series, if other than the total principal amount thereof because the
Securities are Original Issue Discount Securities, which shall be
payable upon declaration of acceleration of the maturity thereof
pursuant to Section 6.02 or provable in bankruptcy pursuant to Section
6.09;
(10) the provisions relating to seniority or subordination of the
Securities of such series (including the relative ranking of such
series with respect to each other series and other debt securities and
other indebtedness), including the additions to, deletions from or
changes to Article 12 hereof, if any;
(11) the provisions relating to optional and mandatory conversion
or exchange of the Securities of such series for or into new
Securities of a different series or other securities or property,
including capital stock of the Company or any subsidiary thereof or
securities convertible into or exchangeable or exercisable for such
capital stock (including antidilution provisions, if any);
(12) the provisions relating to optional and mandatory
repurchase, redemption and prepayment rights of Securities of the
series (including provisions relating to asset sales, excess cash
flow, sinking funds and change of control, if any);
(13) the provisions relating to guarantees of the obligations of
the Issuer in respect of the Securities of the series (including
provisions relating to seniority, subordination and collateral
security), if any;
(14) the provisions relating to collateral security to secure
repayment of the Securities of such series or any guaranty and the
extent to which such collateral shall be subject to the claims of
holders of such series (including provisions relating to priority), if
any;
(15) the provisions relating to additions to, deletions from or
changes in the provisions of Article 8 in respect of the Securities of
the series;
(16) the provisions relating to the covenants solely for the
benefit of the Securities of the series (including the additions to,
deletions from or changes in the provisions of Article 4 or the
definitions in Article 1), if any;
(17) the restrictions, if any, on the issuance of additional
Securities of the same or any other series of Securities or any other
debt securities;
24
(18) the denominations in which any of the Securities of the
series that shall be issuable, if other than denominations of $1,000
and any integral multiple thereof as provided for in Section 2.01(h);
(19) the provisions relating to one or more authenticating agents
of the series, and paying agents, transfer agents, registrars and
other agents for the Securities of the series, if any; and
(20) any other terms that are not inconsistent with the
provisions hereof.
(d) All Securities of the same series shall be substantially
identical in tenor and effect, except as to denomination and registration.
(e) All Securities of the same series hereunder shall in all
respects be equally and ratably entitled to the benefits hereof with respect to
such series without preference, priority or distinction on account of the actual
time of the authentication and delivery.
(f) All outstanding Securities of the same series will constitute
a single class and series for all purposes, including for purposes of benefiting
from any Guaranties or Collateral Security as to such series, participating in
any redemption or offer to repurchase, and determining whether the required
percentage of Holders of such series has given consent to any amendment or
waiver or given direction to the Trustee to take or not take any action on
behalf of all Holders of such series.
(g) The form of the Securities of each series shall be
established pursuant to the Series Supplement with respect to the series and
shall comply with the provisions hereof. The Securities of each series shall be
distinguished from the Securities of each other series in such manner,
reasonably satisfactory to the Trustee, as the Board of Directors of the Issuer
of the series may determine. Unless otherwise provided with respect to
Securities of a particular series in the Series Supplement with respect to the
series, the Securities of each series shall only be issuable in registered form,
without Coupons.
(h) Unless otherwise provided with respect to Securities of a
particular series in the Series Supplement with respect to the series, the
Securities of each series shall be issuable only in denominations of $1,000 and
any integral multiple thereof.
SECTION 2.02 Execution and Authentication.
(a) At any time and from time to time after the execution and
delivery hereof, the Issuer of a series of Securities may deliver Securities of
that series executed by the Issuer to the Trustee for authentication; and the
Trustee shall, upon order of the Issuer of such series, authenticate and deliver
such Securities as provided herein. Except as otherwise provided or permitted
hereby or in the Series Supplement, the Trustee shall not authenticate and
deliver any Bearer Security until any matured Coupons appertaining thereto have
been detached and canceled.
25
(b) Prior to the delivery of a Security to the Trustee for
authentication in any form, the Issuer of a series of Securities shall deliver
to the Trustee:
(1) a resolution or resolutions of the Board of Directors of the
Issuer by or pursuant to which such form of Security has been
approved, together with (A) a true and correct copy of the form of
Security which has been approved thereby or pursuant thereto and (B)
one or more Officers' Certificates of the Issuer of such series to the
Trustee relating to such resolution or resolutions pursuant to the
terms hereof;
(2) certification as to the aggregate principal amount of
Securities of such series to be authenticated and delivered;
(3) the issue price, the Issue Date and the CUSIP number and
corresponding ISIN of such series; and
(4) certification that the Issuer of such series has complied
with this Section 2.02 with respect to such series.
Any form of Security of any series must be acceptable as to form to the Trustee,
such acceptance to be evidenced by the Trustee's authentication of Securities in
that form or a certificate signed by the Trustee and delivered to the Issuer of
such series. Prior to the delivery of a Security to the Trustee for
authentication in any form approved by or pursuant to an Officers' Certificate
of the Issuer of a series, such Issuer shall deliver to the Trustee the
Officers' Certificate of such Issuer described in Section 2.01(b), which
Officers' Certificate shall have attached thereto a true and correct copy of the
resolutions of the Board of Directors of the Issuer approving the issuance of
the Security and the form of Security which has been approved thereby.
(c) The Securities of each series and the Trustee's certificate
of authentication shall be substantially in the form of Exhibit 1 hereto, which
is hereby incorporated in and made a part hereof. The Securities may have
notations, legends or endorsements (including letters, numbers and other marks
of identification) required by law or rules or regulations thereunder, rules of
any securities exchange or market, agreements to which the Company or any of its
Subsidiaries is subject, if any, or usage; provided, that any such notation,
legend or endorsement is in a form acceptable to the Company or the Issuer of
such series. The Securities may have such appropriate insertions, omissions,
substitutions and other variations as are required or permitted hereby.
(d) Each Registered Security shall be dated the date of its
authentication. Each Bearer Security (and any Bearer Security in global form)
shall be dated as of the date specified pursuant hereto or pursuant to the
Series Supplement.
(e) The Securities of each series shall be signed by or on behalf
of the Issuer of such series by an Officer of the Issuer of such series by
manual or facsimile signature, and shall have the seal of the Issuer of such
series impressed, affixed, imprinted or reproduced thereon, and in manual or
facsimile form. If an Officer whose signature is on a Security no
26
longer holds that office at the time the Trustee authenticates the Security, the
Security shall be valid nevertheless.
(f) A Security shall not be valid until an authorized signatory
of the Trustee manually (or by facsimile) signs the certificate of
authentication on the Security. The signature shall be conclusive evidence that
the Security has been authenticated hereunder.
(g) The Trustee shall authenticate and deliver each series of
Securities, together with any Coupons appertaining thereto, for an original
issue in an aggregate principal amount specified upon receipt of the Officers'
Certificates described in Section 2.01(b). Notwithstanding any provisions
described in Section 2.01(c)(19), the Trustee may appoint an authenticating
agent reasonably acceptable to the Company to authenticate the Securities of any
series, together with any Coupons appertaining thereto. Unless limited by the
terms of such appointment, an authenticating agent may authenticate Securities
of such series whenever the Trustee may do so. Each reference herein to
authentication by the Trustee includes authentication by such agent. An
authenticating agent has the same rights as any Registrar, Paying Agent or agent
for service of notices and demands.
SECTION 2.03 Registrar, Paying Agent and Ownership.
(a) The Issuer of each series shall maintain in the Borough of
Manhattan, the City of New York, an office or agency (which may be an office of
the Trustee or an affiliate of the Trustee or Registrar) where Registered
Securities of such series may be presented for registration of transfer or for
exchange (the "Registrar", with the term "Registrar" meaning, unless otherwise
stated, the Registrar in respect of the series of Securities as to which the
determination is being made), any or all Registrars in relation to the
Securities hereunder or the Registrars in relation to a particular series of
Securities) and for payment and where notices or demands to or upon the Issuer
in respect of Registered Securities may be served (the "Registered Paying
Agent"). The Registrar shall keep a register of the Registered Securities and of
their transfer and exchange. The Company and the Issuer initially appoint
[__________] as Registrar and Registered Paying Agent in connection with the
Registered Securities. If the Issuer fails to maintain a Registrar or Registered
Paying Agent, the Trustee shall act as such and shall be entitled to appropriate
compensation therefor pursuant to Section 7.07.
(b) The Issuer shall, subject to any laws, rules or regulations
applicable thereto, maintain outside of the United States of America an office
or agency (which may be an office of the Trustee or an affiliate of the Trustee
or Registrar) where Bearer Securities of a series (including any Coupons
appertaining thereto) may be presented for payment and where notices or demands
to or upon the Issuer in respect of Bearer Securities may be served (the "Bearer
Paying Agent"). Any Registered Paying Agent or Bearer Paying Agent is called a
"Paying Agent" , with the term "Paying Agent" meaning, unless otherwise stated,
the Paying Agent in respect of the series of Securities as to which the
determination is being made. The Company and the Issuer will appoint a Registrar
and Bearer Paying Agent in connection with the Bearer Securities at the time it
creates such Bearer Securities. Bearer Securities of a series (including any
Coupons appertaining thereto) may only be presented and surrendered for
27
payment at the place specified for the purpose with respect thereto as provided
herein or in the Series Supplement relating to such series.
Except as otherwise provided herein or in the Series
Supplement relating to a series, no payment of principal of or premium, if any,
or interest on Bearer Securities (including any Coupons appertaining thereto)
shall be made at any office or agency in the United States of America or by
check mailed to any address in the United States of America or by wire transfer
to an account maintained with a bank located in the United States of America;
provided, however, that if amounts owing with respect to any Bearer Securities
(including any Coupons appertaining thereto) shall be payable in U.S. dollars,
payment of principal of or premium, if any, or interest on any such Bearer
Security may be made at the corporate trust office of the Trustee or any office
or agency designated by the Issuer in the Borough of Manhattan, the City of New
York, if (but only if) payment of the full amount of such principal, premium, if
any, or interest at all offices outside the United States of America maintained
for such purpose by the Issuer of the series of Securities that includes such
Bearer Securities (and Coupons appertaining thereto) in accordance herewith is
illegal or effectively precluded by exchange controls or other similar
restrictions.
(c) The Issuer may have one or more co-registrars and one or more
additional paying agents. The term "Registrar" includes any co-registrar, and
the term "Paying Agent" includes any additional paying agent. The Issuer of a
series shall enter into an appropriate agency agreement with any Paying Agent or
Registrar not a party hereto, which agency agreement shall incorporate the terms
of the TIA. The agreement shall implement the provisions hereof that relate to
such agent. The Issuer shall notify the Trustee of the name and address of any
such agent. The Company or any of its Wholly Owned Subsidiaries (including the
Issuer of such series) incorporated or organized within the United States of
America may act as Paying Agent or Registrar of any or all series of Securities.
The Issuer of each series may from time to time designate one or more other
offices or agencies where the Securities of such series may be presented or
surrendered for any or all purposes and may from time to time rescind such
designations; provided, however, that no such designation or rescission shall in
any manner relieve the Issuer of a series of Registered Securities of its
obligation to maintain an office or agency in the Borough of Manhattan, the City
of New York for the purposes set forth in this Section 2.03(a). The Issuer of
any series of Securities shall give prompt written notice to the Trustee of any
such designation or rescission and of the location, and any change in the
location, of any such other office or agency.
(d) The ownership (and matters relating thereto) of
Registered Securities held by any Person shall be proved by the Registrar's
books. The ownership (and matters relating thereto) of Bearer Securities or
Coupons held by any Person may be proved (1) by the production of such Bearer
Securities or Coupons or by a certificate executed by a trust company, bank or
other depositary, wherever situated, reasonably acceptable to the Issuer of the
series of Securities that includes such Bearer Securities (and Coupons
appertaining thereto), if such certificate shall be deemed by the Issuer and the
Trustee to be satisfactory, certifying that at the date or dates therein
mentioned such Person had on deposit with such depositary, or exhibited to it,
the Bearer
28
Securities or Coupons therein described; (2) by the certificate or affidavit of
the Person holding such Bearer Securities or Coupons, if such certificate or
affidavit is deemed by the Issuer of such series and the Trustee to be
satisfactory; or (3) in any other manner which the Issuer and the Trustee deem
sufficient. The Trustee and the Issuer may assume that such ownership of any
Bearer Security (including any Coupon appertaining thereto) continues until (1)
another certificate or affidavit bearing a later date issued in respect of the
same Bearer Security (including any Coupon appertaining thereto) is produced, or
(2) such Bearer Security (including any Coupon appertaining thereto) is produced
to the Trustee by some other Person, (3) such Bearer Security (including any
Coupon appertaining thereto) is surrendered in exchange for a Registered
Security or (4) such Bearer Security (including any Coupon appertaining thereto)
is no longer outstanding.
SECTION 2.04 Paying Agent to Hold Money in Trust. Prior to each payment
date of the principal, premium, if any, and interest on a Security of any
series, the Issuer of such series shall deposit with any Paying Agent for such
series a sum sufficient to pay such principal, premium, if any, and interest so
becoming due. The Issuer of such series 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 Holders of such series or the Trustee all money held by such
Paying Agent for the payment of such principal, premium, if any, and interest on
the Securities of such series and shall notify the Trustee of any default by the
Issuer in making any such payment with respect to such series. If the Company or
any of its Subsidiaries acts as Paying Agent in respect of a series, it shall
segregate the money held by it as Paying Agent and hold it as a separate trust
fund. The Issuer of a series at any time may require a Paying Agent for such
series to pay all money held by it to the Trustee and to account for all funds
disbursed by such Paying Agent. Upon compliance with this Section 2.04, such
Paying Agent shall have no further liability for the money delivered to the
Trustee.
SECTION 2.05 Lists of Holders. 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 Holders of Registered Securities of a series. If the
Trustee is not the Registrar of such series, the Issuer of such series shall
furnish to the Trustee, in writing at least five Business Days before each
Interest Payment Date and at such other times as the Trustee may request in
writing, a list in such form and as of such date as the Trustee may reasonably
require of the names and addresses of Holders of Registered Securities of such
series.
SECTION 2.06 Registered Securities.
(a) Definitive Securities shall be printed, lithographed or
engraved or produced in any other manner, all as determined by the Officers of
the Issuer of such Definitive Securities executing such Definitive Securities
(including Coupons appertaining thereto, in the case of Bearer Securities), as
evidenced by their execution of such Definitive Securities (subject, with
respect to Registered Securities of any series, to the rules of any securities
exchange or market on which such Registered Securities are listed or traded).
29
(b) Except as otherwise provided in this Article 2, owners of
beneficial interests in Global Securities shall not be entitled to receive
physical delivery of Definitive Securities.
(c) If the Issuer of a series of Securities shall establish
pursuant to Section 2.01 that the Securities of such series are to be issued in
whole or in part in the form of one or more Global Securities, then the Issuer
of such series shall issue and execute and the Trustee or its agent shall, in
accordance with Section 2.02 and this Section 2.06 and the order of the Issuer
of such series delivered to the Trustee or its agent thereunder, authenticate
and deliver such Global Security or Securities, which shall (1) represent, and
shall be denominated in an amount equal to the aggregate principal amount of,
the outstanding Securities of such series to be represented by such Global
Security or Securities, or such portion thereof as the Issuer of such series
shall specify in an order of the Issuer of such series, (2) be registered in the
name of the Depositary for such Global Security or Securities or its nominee,
and (3) be delivered by the Trustee or its agent to the Depositary or pursuant
to the Depositary's instructions or held by the Trustee as Securities Custodian.
(d) Except as otherwise permitted pursuant hereto, each
certificate evidencing Global Securities (and all Securities issued in exchange
therefor or in substitution thereof) shall bear a legend in substantially the
following form:
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED
REPRESENTATIVE OF [THE DEPOSITORY] TO THE ISSUER OR ITS AGENT FOR
REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY
CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF [THE DEPOSITORY
OR ITS NOMINEE] (AND ANY PAYMENT IS MADE TO [THE DEPOSITORY OR
ITS NOMINEE]), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE
OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE
REGISTERED OWNER HEREOF, [THE DEPOSITORY OR ITS NOMINEE] HAS AN
INTEREST HEREIN.
TRANSFERS OF THIS GLOBAL SECURITY SHALL BE LIMITED TO TRANSFERS
IN WHOLE, BUT NOT IN PART, TO [THE DEPOSITORY OR ITS NOMINEE] OR
TO A SUCCESSOR THEREOF 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.
(e) Subject to the provisions of Section 2.07(d) and 2.07(e), the
registered Holder of a Global Security shall be entitled to grant proxies and
otherwise authorize any Person, including Agent Members and Persons that may
hold interests through Agent Members, to take any action which such Holder is
entitled to take hereunder or under such Global Security.
30
(f) Members of, or participants in, the Depositary ("Agent
Members") shall have no rights hereunder with respect to any Global Security
held on their behalf by the Depositary or by the Trustee as the Securities
Custodian or under such Global Security, and the Issuer of such Global Security,
the Trustee and any agent of the Issuer of such Global Security or the Trustee
shall be entitled to treat the Depositary as to such series as the absolute
owner of such Global Security for all purposes whatsoever. Notwithstanding the
foregoing, nothing herein shall prevent the Issuer of such Global Security, the
Trustee or any agent of the Issuer of such Global Security or the Trustee from
giving effect to any written certification, proxy or other authorization
furnished by the Depositary or impair, as between the Depositary and its Agent
Members, the operation of customary practices of such Depositary governing the
exercise of the rights of a holder of a beneficial interest in any Global
Security.
(g) At such time as all beneficial interests in a Global Security
have been exchanged for Definitive Securities or redeemed, purchased or
canceled, such Global Security shall be returned to the Trustee for cancellation
or canceled by the Trustee. At any time prior to such cancellation, if any
beneficial interest in a Global Security is exchanged for Definitive Securities
or redeemed, purchased or canceled, the principal amount of the Securities
represented by such Global Security shall be reduced and an adjustment shall be
made on the books and records of the Trustee to reflect such reduction (if it is
then the Securities Custodian for such Global Security) with respect to such
Global Security, by the Trustee or the Securities Custodian.
(h) None of the Issuer of the series of Securities that includes
such Global Security, the Trustee, any Paying Agent for such series or the
Registrar for such series, or any agent of any of the foregoing will have any
(1) responsibility or liability for any aspect of the records relating to or
payments made on account of beneficial ownership interests of a Global Security
or for maintaining, supervising or reviewing any records relating to such
beneficial ownership interests or (2) responsibility or obligation to any
beneficial owner of a Global Security, a member of, or a participant in the
Depositary for such series or other Person with respect to the accuracy of the
books or records, or the acts or omissions, of the Depositary or its nominee or
of any participant or member thereof, with respect to any ownership interest in
such Global Security or any such Securities represented thereby or with respect
to the delivery to any participant, member, beneficial owner or other Person
(other than such Depositary) of any notice (including any notice of redemption)
or the payment of any amount, under or with respect to such Global Security or
any such Securities represented thereby. All notices and communications to be
given to the Holders of Securities of such series and all payments to be made to
Holders under the Securities of such series shall be given or made only to or
upon the order of the registered Holders (which shall be the Depositary for such
series or its nominee in the case of a Global Security). The rights of
beneficial owners in any Global Security or any such Securities represented
thereby shall be exercised only through the Depositary for such series subject
to the applicable rules and procedures of the Depositary. The Issuer of the
series of Securities that includes such Global Security, the Trustee, any Paying
Agent for such series and the Registrar for such series, and any agent of any of
the foregoing, may rely and shall be fully protected in relying upon information
furnished by the Depositary for such series with respect to its members,
participants and any beneficial owners.
31
(i) The Trustee shall have no obligation or duty to monitor,
determine or inquire as to compliance with any restrictions on transfer imposed
hereunder or under applicable law with respect to any transfer of any interest
in any Security (including any transfers between or among Depositary
participants, or members or other direct or indirect beneficial owners in any
Global Security) other than to require delivery of such certificates and other
documentation or evidence as are expressly required by, and to do so if and when
expressly required by, the terms hereof, and to examine the same to determine
substantial compliance as to form with the express requirements hereof.
SECTION 2.07 Transfer and Exchange.
(a) Except as otherwise provided herein, the Securities shall be
transferable only upon the surrender of a Security for registration of transfer.
Except as otherwise provided in Section 2.07(b), when a Registered Security of a
series is presented to the Registrar with a request to register a transfer, the
Registrar for such series shall register the transfer as requested if the
requirements hereof are met. When Registered Securities of a series are
presented to the Registrar for such series with a request to exchange them for
an equal principal amount of Registered Securities of other authorized
denominations, the Registrar shall make the exchange as requested if the same
requirements are met; provided, however, that in each such case the Definitive
Securities surrendered for transfer or exchange shall be duly endorsed or
accompanied by a written instrument of transfer in form reasonably satisfactory
to the Issuer of such Registered Securities and the Registrar, duly executed by
the Holder thereof or its attorney duly authorized in writing.
(b) The transfer and exchange of Global Securities or beneficial
interests therein shall be effected through the Depositary for such Global
Securities, in accordance herewith (including applicable restrictions on
transfer set forth herein, if any) and the procedures of such Depositary. A
transferor of a beneficial interest in a Global Security shall deliver to the
Registrar a written order given in accordance with the Depositary's procedures
containing information regarding the participant account of the Depositary to be
credited with a beneficial interest in the Global Security. The Registrar shall,
in accordance with such instructions, instruct the Depositary to credit to the
account of the Person specified in such instructions a beneficial interest in
the Global Security and to debit the account of the Person making the transfer
the beneficial interest in the Global Security being transferred.
If the proposed transfer is a transfer of a beneficial
interest in one Global Security to a beneficial interest in another Global
Security of a series, the Registrar of such series shall reflect on its books
and records the date and an increase in the principal amount of the Global
Security of such series to which such interest is being transferred in an amount
equal to the principal amount of the interest to be so transferred, and the
Registrar of such series shall reflect on its books and records the date and a
corresponding decrease in the principal amount of the Global Security of such
series from which such interest is being transferred.
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Notwithstanding any other provisions in this Section 2.07
(other than the provisions set forth in Section 2.07(d) and 2.07(e), a Global
Security may not be transferred as a whole except by: (1) the Depositary to a
nominee of the Depositary, (2) a nominee of the Depositary to the Depositary or
another nominee of the Depositary, or (3) the Depositary or any such nominee to
a successor Depositary or a nominee of such successor Depositary.
(c) A Definitive Security may not be exchanged for a
beneficial interest in a Global Security except upon satisfaction of the
requirements set forth below. Upon receipt by the Trustee of a Definitive
Security, duly endorsed or accompanied by appropriate instruments of transfer,
in form satisfactory to the Trustee, together with written instructions
directing the Trustee to make, or to direct the Securities Custodian to make, an
adjustment on its books and records with respect to such Global Security to
reflect an increase in the aggregate principal amount of the Securities
represented by the Global Security, and containing information regarding the
Depositary account to be credited with such increase, then the Trustee shall
cancel such Definitive Security and cause, or direct the Securities Custodian to
cause, in accordance with the standing instructions and procedures existing
between the Depositary and the Securities Custodian, the aggregate principal
amount of the Securities represented by the Global Security, to be increased by
the aggregate principal amount of the Definitive Security to be exchanged and
shall credit or cause to be credited to the account of the Person specified in
such instructions a beneficial interest in the Global Security equal to the
principal amount of the Definitive Security so canceled.
(d) A Global Security deposited with the Depositary or with
the Trustee as Securities Custodian for the Depositary pursuant to Section
2.06(b)(4) shall be transferred to the beneficial owners thereof in the form of
Definitive Securities in an aggregate principal amount equal to the principal
amount of such Global Security, in exchange for such Global Security, only if
such transfer complies with Section 2.07 hereof and (1) the Depositary notifies
the Issuer of the series of Securities that includes such Global Security that
it is unwilling or unable to continue as Depositary for such Global Security or
if at any time such Depositary ceases to be a "clearing agency" registered under
the Exchange Act and, in either case, a successor Depositary is not appointed by
the Issuer within 90 days of such notice, (2) an Event of Default with respect
to such series has occurred and is continuing or (3) the Issuer of such series ,
in its sole discretion, notifies the Trustee in writing that it elects to cause
the issuance of Definitive Securities hereunder. Any Global Security that is
transferable to the beneficial owners thereof pursuant to this Section 2.07(d)
shall be surrendered by the Depositary to the Trustee located at its principal
corporate trust office in New York, New York, to be so transferred, in whole or
from time to time in part, without charge, and the Trustee shall authenticate
and deliver, upon such transfer of each portion of such Global Security, an
equal aggregate principal amount of Securities represented thereby of authorized
denominations. Such Securities shall be issuable in the form or forms in which
Securities of the same series are issuable as provided herein or in the Series
Supplement relating to a series), or any combination thereof, as shall be
specified by the Depositary, but subject to the satisfaction of any
certification or other requirements with respect to the issuance of Bearer
Securities; provided, however, that, unless otherwise provided herein or in the
Series Supplement relating to such series) no Bearer Security delivered in
exchange for a
33
portion of a Global Security shall be mailed or otherwise delivered to any
location in the United States of America. Any portion of a Global Security
transferred pursuant to this Section 2.07(d) in the form of a Definitive
Security shall be registered in such names as the Depositary shall direct. If a
Definitive Security is issued in exchange for any portion of a Global Security
after the close of business at the office or agency where such exchange occurs
on (i) any Regular Record Date and before the opening of business at such office
or agency on the relevant Regular Interest Payment Date, or (ii) any Special
Record Date and before the opening of business at such office or agency on the
Special Interest Payment Date, interest or defaulted interest, as the case may
be, will not be payable on such Interest Payment Date in respect of such
Definitive Security, but will be payable on such Interest Payment Date only to
the Person to whom interest in respect of such portion of such Global Security
is payable in accordance with the provisions hereof.
In the event of the occurrence of one of the events specified in this
Section 2.07(d), the Issuer of such series of Securities shall promptly make
available to the Trustee a reasonable supply of Definitive Securities of such
series.
(e) To permit registrations of transfers and exchanges of
Securities of each series, the Issuer of such series shall issue and execute and
the Trustee shall authenticate Definitive Securities and Global Securities at
the Registrar's request. No service charge shall be made for any registration of
transfer or exchange, but the Issuer of such series may require payment of a sum
sufficient to cover any transfer tax, assessments or similar governmental charge
payable in connection therewith (other than any such transfer taxes, assessments
or similar governmental charge payable upon exchange or transfer pursuant to
Sections 3.06, 4.03 and 9.05 hereof). The Registrar shall not be required to (1)
register the transfer or exchange of (A) any Security of any series that has
been surrendered for repayment at the option of the Holder, except any portion
thereof not to be repaid, (B) any Definitive Security selected for redemption in
whole or in part pursuant to Article 3 hereof, except the unredeemed portion of
any Definitive Security being redeemed in part, or (C) any Security of any
series for a period beginning 15 Business Days before an Regular Interest
Payment Date or beginning on the opening of business 15 Business Days before the
giving of a notice of an offer to repurchase or redeem Securities of that series
to be redeemed and ending at the close of business on (i) if Securities of such
series are issuable only as Registered Securities, the day of the giving of the
relevant notice of redemption and (ii) if Securities of the series are issuable
as Bearer Securities, the day of the first publication of the relevant notice of
redemption or, if Securities of the series are also issuable as Registered
Securities and there is no publication, the mailing of the relevant notice of
redemption or (2) exchange any Bearer Security so selected for redemption
except, to the extent provided with respect to such Bearer Security, that such
Bearer Security may be exchanged for a Registered Security of like tenor and the
same series, provided that such Registered Security shall be immediately
surrendered for redemption with written instruction for payment consistent with
the provisions hereof. Prior to the due presentation for registration of
transfer of any Security of any series, the Issuer of such series, the Trustee,
any Paying Agent or the Registrar may deem and treat the Person in whose name a
Security of such series is registered as the absolute owner of such Security for
the purpose of receiving payment of
34
principal of and interest on such Security and for all other purposes
whatsoever, whether or not such Security is overdue, and none of the Issuer of
such series, the Trustee, any Paying Agent or the Registrar shall be affected by
notice to the contrary. All Securities issued upon any transfer or exchange
pursuant to the terms hereof shall evidence the same debt and shall be entitled
to the same benefits hereunder as the Securities surrendered upon such transfer
or exchange.
(f) If as provided herein or in the Series Supplement relating to
Securities of any series, at the option of the Holder, (1) Registered Securities
of such series may be exchanged for Bearer Securities of such series or (2)
Bearer Securities of such series may be exchanged for Registered Securities of
such series, in each case in authorized denominations and in the same aggregate
principal amount, upon surrender of the Securities to be exchanged at any office
or agency for such series together with, in the case of surrender of Bearer
Securities, all unmatured Coupons and all matured Coupons in default
appertaining thereto. If the Holder of a Bearer Security is unable to produce
any such unmatured Coupon or Coupons or matured Coupon or Coupons in default,
such exchange may be effected if (1) the Bearer Securities are accompanied by
payment in funds acceptable to the Issuer and the Trustee in an amount equal to
the face amount of such missing Coupon or Coupons or (2) the surrender of such
missing Coupon or Coupons is waived by the Issuer of such series and the Trustee
upon delivery to them of such security or indemnity as they may require to save
each of them and any Paying Agent for such series harmless. None of them shall
be required to give any such waiver. If thereafter the Holder of such Bearer
Security of a series shall surrender to any Paying Agent for such series any
such missing Coupon in respect of which such a payment shall have been made,
such Holder shall be entitled to receive the amount of such payment; provided,
however, that, except as otherwise provided in Section 2.03(b), interest
represented by Coupons shall be payable only upon presentation and surrender of
those Coupons at an office or agency for such series located outside the United
States of America. Notwithstanding the foregoing, unless otherwise provided
herein or in the Series Supplement relating to such series, in case a Bearer
Security of any series is surrendered at any such office or agency for such
series in exchange for a Registered Security of such series and like tenor after
the close of business at such office or agency on (i) any Regular Record Date
and before the opening of business at such office or agency on the relevant
Regular Interest Payment Date, or (ii) any Special Record Date and before the
opening of business at such office or agency on the related date for payment of
defaulted interest, such Bearer Security shall be surrendered without the Coupon
relating to such Interest Payment Date (or, if such Coupon is so surrendered
with such Bearer Security, such Coupon shall be returned to the Person so
surrendering the Bearer Security), and interest or defaulted interest, as the
case may be, shall not be payable on the applicable Interest Payment Date in
respect of the Registered Security issued in exchange for such Bearer Security,
but shall be payable only to the Holder of such Coupon when due in accordance
with the provisions hereof or any Series Supplement.
SECTION 2.08 Replacement Securities. If a mutilated Security of any
series (or any Bearer Security with a mutilated Coupon appertaining to it) is
surrendered to Registrar for such series (in the case of Registered Securities)
or the office or agency for such series set forth in Section 2.03(b) (in the
case of Bearer Securities), or if the Holder of a Security of any series claims
that a Security of such series (or Coupon appertaining thereto) has been lost,
destroyed or
35
wrongfully taken, the Issuer of such series shall issue and the Trustee shall
authenticate a replacement Security (including any Coupon appertaining thereto)
if the requirements set forth in this Section 2.08 are met. If required by the
Trustee or the Issuer of such series, such Holder shall furnish an indemnity
bond sufficient in the judgment of the Issuer of such series and the Trustee for
such series to protect the Issuer of such series, the Trustee for such series,
any Paying Agent for such series or the Registrar for such series from any loss
which any of them may suffer if such Security (including any Coupon appertaining
thereto) is replaced. The Issuer of such series and the Trustee for such series
may charge the Holder for their expenses in replacing a Security (including any
Coupon appertaining thereto). In case any lost, destroyed or wrongfully taken
Security (including any Coupon appertaining thereto) has become due and payable,
the Issuer of such series in its discretion may pay such Security (including any
Coupon appertaining thereto) in lieu of issuing a new Security (including any
Coupon appertaining thereto) in replacement therefor; provided, however, that
principal of, and the premium, if any, or interest on any Bearer Securities
shall, except as otherwise provided in Section 2.03(a), be payable only at an
office or agency for such Securities located outside the United States of
America and, unless otherwise provided herein or in the Series Supplement
relating to a series, any interest on Bearer Securities shall be payable only
upon presentation and surrender of the Coupons appertaining thereto. Every
replacement Security and Coupon as to a series is an additional obligation of
the Issuer of such series, entitled to all of the benefits hereof equally and
proportionately with any and all other Securities (or appertaining Coupons) of
the same series duly issued hereunder.
SECTION 2.09 Outstanding Securities. Securities of any series
outstanding at any time consist of all Securities of such series issued,
executed, authenticated and delivered pursuant hereto except for those canceled
by the Trustee, those delivered to the Trustee for cancellation and those
described in this Section 2.09 as not outstanding. A Security of a series does
not cease to be outstanding because the Issuer of such series or an Affiliate of
the Issuer holds the Security. If a Security of a series is replaced pursuant to
Section 2.08, it ceases to be outstanding unless the Trustee and the Issuer of
such series receive proof satisfactory to them that the replaced Security is
held by a bona fide purchaser. If any Paying Agent for a series of Securities
segregates and holds in trust, in accordance herewith, on a redemption date or
maturity date money sufficient to pay all principal, premium, if any, and
interest payable on that date with respect to the Securities of such series (or
portions thereof) to be redeemed or maturing, as the case may be, then on and
after that date such Securities (or portions thereof) cease to be outstanding
and interest on them ceases to accrue.
SECTION 2.10 Temporary Securities. Until definitive Securities of any
series are ready for delivery, the Issuer of such series may prepare, issue and
execute and the Trustee shall authenticate and deliver temporary Securities.
Temporary Securities shall be substantially in the form of definitive Securities
but may have variations that the Issuer of such series considers appropriate for
temporary Securities. Without unreasonable delay, the Issuer shall prepare and
execute and the Trustee shall authenticate and deliver definitive Securities in
registered form or, if authorized, in bearer form with or without Coupons in
exchange for temporary Securities. After the preparation of definitive
Securities, the temporary Securities of such series shall be
36
exchangeable for definitive Securities of such series upon surrender of the
temporary Securities of such series at the office or agency so designated with
respect to the series of Securities in question, without charge to the Holder;
and upon surrender for cancellation of any one or more temporary Securities
(accompanied by any unmatured Coupons appertaining thereto) the Issuer shall
issue and execute and the Trustee shall authenticate and deliver in exchange
therefor a like principal amount of definitive Securities of such series of
authorized denominations and of like tenor and terms. Until so exchanged, the
temporary Securities of such series shall in all respects be entitled to the
same benefits hereunder as definitive Securities of such series. Notwithstanding
the foregoing, except as provided herein or in the Series Supplement relating to
a series, no definitive Bearer Security shall be delivered in exchange for a
temporary Registered Security, except as provided herein or in the Series
Supplement relating to a series, and a definitive Bearer Security shall be
delivered in exchange for a temporary Bearer Security only in compliance with
the Series Supplement relating to such series.
SECTION 2.11 Cancellation. The Issuer may at any time deliver
Securities of such series (and any Coupon appertaining thereto) to the Trustee
for cancellation. The Registrar and any Paying Agent shall forward to the
Trustee any Securities or Coupons of such series surrendered to them for
registration of transfer, exchange or payment. The Trustee (and no one else)
shall cancel and destroy all Securities or Coupons surrendered for registration
of transfer, exchange, payment or cancellation and deliver a certificate of such
destruction to the Issuer of such series unless the Issuer of such series
directs the Trustee to deliver canceled Securities of such series (including
Coupons appertaining thereto) to the Issuer of such series. The Issuer of any
series of Securities may not issue new Securities or Coupons of such series to
replace Securities of such series it has redeemed, paid or delivered to the
Trustee for cancellation.
SECTION 2.12 Defaulted Interest. If the Issuer of any series of
Securities defaults in a payment of interest on the Securities of any series
(including any Coupon appertaining thereto), the Issuer of such series shall pay
defaulted interest on the Securities of such series (plus interest on such
defaulted interest to the extent lawful), in any lawful manner, to the Persons
who are Holders of such series of Securities at the close of business on a
Special Record Date for the payment of such defaulted interest on a Special
Interest Payment Date. The Issuer of such series shall fix or cause to be fixed
such Special Record Date and Special Interest Payment Date to the reasonable
satisfaction of the Trustee. At least 15 days before the Special Record Date the
Issuer shall promptly give to each Holder of such series of Securities and the
Trustee a notice that states the Special Record Date, the Special Interest
Payment Date and the amount of defaulted interest to be paid. In case a Bearer
Security is surrendered at the office or agency for such Security in exchange
for a Registered Security after the close of business at such office or agency
on any Special Record Date and before the opening of business at such office or
agency on the related proposed Special Interest Payment Date, such Bearer
Security shall be surrendered without the Coupon relating to such defaulted
interest and defaulted interest shall not be payable on such proposed Special
Interest Payment Date in respect of the Registered Security issued in exchange
for such Bearer Security, but shall be payable only to the Holder of such Coupon
when due in accordance with the provisions hereof.
37
SECTION 2.13 CUSIP Numbers and ISIN. The Issuer of any series of
Securities may use "CUSIP" numbers and corresponding "ISINs" (if then generally
in use) and, if so, the Trustee shall use "CUSIP" numbers and corresponding
"ISINs" in notices of redemption as a convenience to Holders; provided, however,
that any such notice may state that no representation is made as to the
correctness of such numbers either as printed on the Securities of such series
or as contained in any notice of redemption, that reliance may be placed only on
the other identification numbers printed on the Securities of such series, and
that any such redemption shall not be affected by any defect in or omission of
such numbers. The Issuer will notify the Trustee of any changes in the CUSIP
numbers and corresponding "ISINs".
SECTION 2.14 Medium-Term Securities The Series Supplement delivered by
the Issuer to the Trustee may provide that Securities of such series will be
authenticated and delivered by the Trustee or its agent on original issue from
time to time upon the telephonic or written order of Persons designated therein
(with any such telephonic instructions to be confirmed promptly in writing by
such Persons) and that such Persons are authorized to determine, consistent with
such Series Supplement, such terms and conditions of such Securities as are
specified in such Series Supplement. Notwithstanding any contrary provision
herein, if all Securities of a series are not to be originally issued at one
time and the Series Supplement so states, any subsequent request by the Issuer
of such series to the Trustee to authenticate Securities of such series upon
original issuance shall constitute a representation and warranty by the Issuer
that as of the date of such request, the statements made in the Series
Supplement delivered pursuant to Section 2.02 shall be true and correct as if
made on such date.
ARTICLE 3
Redemption
SECTION 3.01 Notices to Trustee. If Securities of a series are
redeemable at the option of the Issuer of such series and such Issuer elects to
redeem Securities of such series prior to their Stated Maturity, it shall notify
the Trustee in writing of the redemption date and the principal amount of the
Securities of such series to be redeemed. The Issuer of such series shall give
such notice to the Trustee provided for in this Section at least 60 days before
the redemption date unless the Trustee consents to a shorter period. Such notice
shall be accompanied by an Officers' Certificate of such Issuer and an Opinion
of Counsel from such Issuer to the effect that such redemption will comply with
the conditions contained herein.
SECTION 3.02 Selection of Securities to Be Redeemed. If fewer than all
of the Securities of any series are to be redeemed, the Trustee shall select the
Securities of such series to be redeemed pro rata or by lot. The Trustee shall
make the selection from outstanding Securities of such series not previously
called for redemption. The Trustee may select for redemption portions of the
principal of Securities of such series that have denominations larger than
$1,000. Securities of such series and portions of them that the Trustee selects
shall be in principal amounts of $1,000 or an integral multiple of $1,000.
Provisions hereof that apply to Securities of such series called for redemption
also apply to portions of Securities of such series
38
called for redemption. The Trustee shall notify the Issuer of such series
promptly of the Securities of such series (or portions thereof) of such series
to be redeemed.
SECTION 3.03 Notice of Redemption. At least 30 days but not more than
60 days before a redemption date of Registered Securities of any series, the
Issuer of such series shall give, in the manner provided in Section 12.02, a
notice of redemption to the Trustee and each Holder of Securities of such
series. The notice shall identify the Securities of such series to be redeemed
and shall state:
(1) the redemption date;
(2) the redemption price;
(3) the name and address of any Paying Agent for such series;
(4) that Securities (including, in the case of Bearer Securities,
any Coupons appertaining thereto) called for redemption must be
surrendered to any Paying Agent to collect the redemption price,
subject to clause (8) of this Section 3.03;
(5) if fewer than all of the outstanding Securities of such
series are to be redeemed, the identification and principal amounts of
the particular Securities to be redeemed;
(6) that, unless the Issuer of such series defaults in making
such redemption payment, interest on Securities (or portions thereof)
of such series called for redemption ceases to accrue on and after the
redemption date;
(7) that no representation is made as to the correctness or
accuracy of the CUSIP or corresponding ISIN number, if any, listed in
such notice or printed on the Securities of such series;
(8) that, unless otherwise specified in such notice, Bearer
Securities of any series, if any, surrendered for redemption must be
accompanied by all appurtenant Coupons maturing after the redemption
date (with any interest represented by Coupons payable only upon
presentation and surrender of those Coupons at an office or agency for
such Security located outside of the United States of America except
as otherwise provided in Section 2.03(b)), and if any such Bearer
Security surrendered for redemption is not accompanied by all
appurtenant Coupons maturing after the redemption date, such Bearer
Security may be paid after deducting from the redemption price an
amount equal to the face amount of all such missing Coupons, or the
surrender of such missing Coupon or Coupons may be waived by the
Issuer and the Trustee if there be furnished to them such security or
indemnity as they may require to save each of them and any Paying
Agent harmless, which indemnity may be consistent with the indemnity
provided for lost certificates in Section 2.08, including an indemnity
bond (and if thereafter the Holder of such Security surrenders to the
Trustee or any Paying Agent any such missing Coupon in
39
respect of which a deduction shall have been made from the redemption
price, such Holder will be entitled to receive the amount so
deducted); and
(9) if Bearer Securities of any series are to be redeemed and any
Registered Securities of such series are not to be redeemed, and if
such Bearer Securities may be exchanged for Registered Securities not
subject to redemption on the redemption date pursuant to Section 2.13
or otherwise, the last date, as determined by the Issuer of such
series, on which such exchanges may be made.
At the request of the Issuer of such series (which request may be revoked by
such Issuer at any time prior to the time at which the Trustee shall have given
such notice to the Holders of such series), upon at least five days' prior
notice to the Trustee, the Trustee shall give the notice of redemption in such
Issuer's name and at such Issuer's expense. In such event, such Issuer shall
provide the Trustee with the information required by this Section 3.03.
SECTION 3.04 Effect of Notice of Redemption. Once notice of redemption
is given, Securities of a series called for redemption become due and payable on
the redemption date and at the redemption price (expressed as a percentage of
the principal amount) stated in the notice. Upon surrender to any Paying Agent
for such series, the Holder of such Securities shall be paid the redemption
price stated in the notice, plus accrued and unpaid interest to the redemption
date (subject to the right of Holders of record on the relevant Record Date to
receive interest due on the related Interest Payment Date), subject to Section
3.03(8) in the case of Bearer Securities. Failure to give notice in the manner
provided herein to the Holder of any Registered Securities of a series
designated for redemption as a whole or in part, or any defect in the notice to
any such Holder, shall not affect the validity of the proceedings for the
redemption of any other Securities (or portions thereof) of such series.
SECTION 3.05 Deposit of Redemption Price. Prior to the redemption date,
the Issuer of a Security of a series to be redeemed shall deposit with any
Paying Agent for such series (or, if the Company or one of its Subsidiaries is
the Paying Agent, shall segregate and hold in trust) money sufficient to pay the
redemption price of and accrued and unpaid interest on all Securities of such
series to be redeemed on the redemption date other than Securities (or portions
thereof) called for redemption which have been delivered by the Issuer of such
series to the Trustee for cancellation.
SECTION 3.06 Securities Redeemed in Part. Upon surrender of a Security
of a series that is redeemed in part, the Issuer shall issue and execute and the
Trustee shall authenticate and deliver to the Holder of such series a new
Security equal in principal amount to the unredeemed portion of the Security
surrendered.
40
SECTION 3.07 Provisions with Respect to any Sinking Funds.
(a) Unless the form or terms of any series of Securities of a
series shall provide otherwise, in lieu of making all or any part of any
mandatory sinking fund payment with respect to Securities of such series in
cash, the Issuer of such series may at its option (1) deliver to the Trustee for
cancellation any Securities of such series theretofor acquired by the Issuer, or
(2) receive credit for any Securities of such series (not previously so
credited) acquired by the Issuer of such series and theretofore delivered to the
Trustee for cancellation or redeemed by the Issuer of such series other than
through the mandatory sinking fund, and, if it does so, then (1) Securities so
delivered or credited shall be credited at the applicable sinking fund
redemption price with respect to Securities of such series and (2) on or before
the 60th day next preceding each sinking fund redemption date with respect to
such series of Securities, the Issuer of such series will deliver to the Trustee
(A) an Officers' Certificate of such Issuer specifying the portions of such
sinking fund payment to be satisfied by payment of cash and by delivery or
credit of Securities of such series acquired by the Issuer or so redeemed and
(B) such Securities so acquired, to the extent not previously surrendered. Such
Officers' Certificate shall also state the basis for such credit and that the
Securities for which the Issuer elects to receive credit have not been
previously so credited and were not redeemed by the Issuer through operation of
the mandatory sinking fund, if any,provided with respect to such Securities and
shall also state that no Event of Default with respect to Securities of such
series has occurred and is continuing. All Securities so delivered to the
Trustee shall be cancelled by the Trustee and, unless otherwise provided in the
Series Supplement with respect to such series, no Securities shall be
authenticated in lieu thereof.
(b) If the optional or mandatory sinking fund payment or payments
in respect of a series of Securities made in cash plus any unused balance of any
preceding sinking fund payments with respect to Securities of such series made
in cash shall exceed $50,000 (or a lesser sum, if the Issuer of such series
shall so request), then, unless otherwise provided in the Series Supplement with
respect to such series, that cash shall be applied by the Trustee on the sinking
fund redemption date with respect to Securities of such series next following
the date of such payment to the redemption of Securities of such series at the
applicable sinking fund redemption price with respect to Securities of such
series, together with accrued and unpaid interest, if any, to the redemption
date, with the effect provided in Section 3.04. The Trustee shall select, in the
manner provided in Article 3, for redemption on such sinking fund redemption
date a sufficient principal amount of the Securities of such series to utilize
that cash and shall thereupon cause notice of redemption of the Securities of
such series for the sinking fund to be given in the manner provided in Section
3.03 (and with the effect provided in Section 3.04) for the redemption of
Securities of such series in part at the option of the Issuer. Any sinking fund
moneys not so applied or allocated by the Trustee to the redemption of
Securities of such series shall be added to the next cash sinking fund payment
with respect to Securities of such series received by the Trustee and, together
with such payment, shall be applied in accordance with the provisions of this
Section 3.07. Any and all sinking fund moneys with respect to Securities of any
series held by the Trustee at the Maturity of Securities of such series, and not
held for the payment or redemption of particular Securities of such series,
shall be applied by the Trustee,
41
together with other moneys, if necessary, to be deposited sufficient for the
purpose, to the payment of the principal of the Securities of such series at
Maturity.
(c) On or before each sinking fund redemption date provided with
respect to Securities of any series, the Issuer shall pay to the Trustee in cash
a sum equal to all accrued and unpaid interest, if any, to the redemption date
on Securities to be redeemed on such sinking fund redemption date pursuant to
this Section 3.07 (subject to the right of Holders of record on the relevant
Record Date to receive interest due on the related Interest Payment Date).
ARTICLE 4
Covenants
SECTION 4.01 Payment of Securities. The Issuer of each series of
Securities shall promptly pay the principal of and interest on such series of
Securities (including any Coupons appertaining thereto) on the dates and in the
manner provided herein and in such Securities (including Coupons appertaining
thereto). Principal and interest shall be considered paid on the date due if on
such date the Trustee or any Paying Agent for such series holds in accordance
herewith money sufficient to pay all principal, premium, if any, and interest
then due. The Issuer of such series shall pay interest on overdue principal at
the rate specified therefor in such Securities (including the related Coupons),
and shall pay interest on overdue installments of interest (called "defaulted
interest") of such Securities (including any Coupon) at the same rate to the
extent lawful.
SECTION 4.02 SEC Reports. Notwithstanding that the Company may not be
subject to the reporting requirements of Section 13 or 15(d) of the Exchange
Act, the Company shall file with the SEC and provide the Trustee and Holders of
any series of Securities hereunder with such information, documents and reports
as are specified in Sections 13 and 15(d) of the Exchange Act and applicable to
a U.S. corporation subject to such Sections, such information, documents and
other reports to be so filed and provided at the times specified for the filing
of such information, documents and reports under such Sections. The Company
shall not be required to file any such information, documents or reports if the
SEC will not accept such filing. The Issuer also shall comply with the other
provisions of TIA ss. 314(a).
SECTION 4.03 Change of Control.
(a) Except as otherwise provided in the Series Supplement
for a series of Securities, upon the occurrence of a Change of Control, each
Holder of such series shall have the right to require that the Issuer of such
series purchase the Securities of such series of such Holder at a purchase price
in cash equal to 101% of the principal amount thereof plus accrued and unpaid
interest, if any, to the date of purchase (subject to the right of Holders on
the relevant Record Date to receive interest on the relevant Interest Payment
Date) in accordance with Section 4.03(b).
42
(b) Within 30 days following any Change of Control, the Issuer
of each series of Securities affected thereby shall give a notice to each Holder
of Securities of such series, in the manner provided in Section 12.02, with a
copy to the Trustee (the "Change of Control Offer"), stating:
(1) that a Change of Control has occurred and that the Holder of
such Securities has the right to require the Issuer of such series to
purchase the Securities of such series of such Holder at a purchase
price in cash equal to 101% of the principal amount thereof, plus
accrued and unpaid interest, if any, to the date of purchase (subject
to the right of Holders on the relevant Record Date to receive
interest on the relevant Interest Payment Date);
(2) the circumstances and relevant facts regarding such Change of
Control (including information with respect to pro forma historical
income, cash flow and capitalization, in each case after giving effect
to such Change of Control);
(3) the purchase date (which shall be no earlier than 30 days nor
later than 60 days from the date such notice is given); and
(4) the instructions determined by the Issuer of such series,
consistent with this Section 4.03, that a Holder of Securities of such
series must follow in order to have its Securities purchased.
(c) A Holder electing to have a Security purchased will be
required to surrender such Security, with an appropriate form duly
completed, to the Issuer of such Security at the address specified in
the notice (given as provided in Section 12.02) at least three
Business Days prior to the purchase date. The Holder of a Registered
Security will be entitled to withdraw its election if the Trustee or
the Issuer of such series receives, not later than one Business Day
prior to the purchase date, a telegram, telex, facsimile transmission
or letter setting forth the name of the Holder, the principal amount
of the Registered Security which was delivered for purchase by the
Holder and a statement that the Holder is withdrawing its election to
have such Registered Security purchased.
(d) On the date of purchase, but in no event later than 10:00
a.m. Eastern Time, all Securities of each series purchased by the
Issuer of such series under this Section 4.03 shall be delivered by
the Issuer of such series to the Trustee for cancellation, and the
Issuer of such series shall pay the purchase price plus accrued and
unpaid interest, if any, to the Holders entitled thereto.
(e) Notwithstanding the foregoing provisions of this Section
4.03, no Issuer of any series of Securities shall be required to make
a Change of Control Offer upon a Change of Control if a third party
makes the Change of Control Offer in the manner, at the times and
otherwise in compliance with the requirements set forth in this
Section 4.03 applicable to a Change of Control Offer made by the
Issuer of such series and purchases all Securities of such series
validly tendered and not withdrawn under the Change of Control Offer.
43
(f) The Issuer of each series of Securities shall comply, to the
extent applicable, with the requirements of Section 14(e) of the Exchange Act
and any other securities laws, rules or regulations in connection with the
repurchase of Securities pursuant to this Section 4.03. To the extent that the
provisions of any securities laws, rules or regulations conflict with provisions
of this Section 4.03, the Issuer of such series shall comply with the applicable
securities laws, rules and regulations and shall not be deemed to have breached
its obligations under this Section 4.03 by virtue of its compliance with such
securities laws, rules or regulations.
SECTION 4.04 Limitation on Sale of the Capital Stock of the Issuer. For
so long as any of the Securities of an Issuer of a series are outstanding, such
Issuer shall continue to be, directly or indirectly, a Wholly Owned Subsidiary
of the Company.
SECTION 4.05 Compliance Certificate. The Company shall deliver to the
Trustee within 120 days after the end of each fiscal year, an Officers'
Certificate signed by Officers of the Company (with at least one of such
Officers also being the Chief Executive Officer, the Chief Financial Officer or
Chief Accounting Officer of the Company) stating that in the course of the
performance by the signers of their duties as Officers of the Company they would
normally have knowledge of any Default and whether or not the signers know of
any Default with respect to any series of Securities that occurred during such
period. If they do, the certificate shall describe the Default with respect to
such series, its status and what action the Issuer of such series is taking or
proposes to take with respect thereto. The Issuer also shall comply with TIA ss.
314(a)(4).
SECTION 4.06 Further Instruments and Acts. Upon reasonable request of
the Trustee, the Company and the Issuer of a series will execute and deliver
such further instruments and do such further acts as may be reasonably necessary
or proper to carry out more effectively the purpose hereof.
ARTICLE 5
Successor Company
SECTION 5.01 When the Company, the Issuer, Guarantors and Other
Obligors May Merge or Transfer Assets.
(a) The Company shall not consolidate with or merge with or
into, or convey, transfer or lease, in one transaction or a series of related
transactions, directly or indirectly, all or substantially all of its assets to,
any Person, unless:
(1) the resulting, surviving or transferee Person (the
"Successor Company") shall be a Person organized and existing under the
laws of the United States of America or any State thereof and the Successor
Company (if not the Company) expressly assumes, by a supplemental
indenture, executed and delivered to the Trustee, in form reasonably
satisfactory to the Trustee, all of the obligations of the Company
hereunder;
44
(2) immediately after giving pro forma effect to such transaction (and
treating any Indebtedness which becomes an obligation of the Successor
Company or any of its Subsidiaries as a result of such transaction or
transactions as having been Incurred by the Successor Company or such
Subsidiary at the time of such transaction), no Default with respect to any
series of Securities shall have occurred and be continuing;
(3) immediately after giving pro forma effect to such transaction, the
Successor Company shall have Consolidated Net Worth in an amount that is
not less than the Consolidated Net Worth of the Company immediately prior
to such transaction;
(4) the Company shall have delivered to the Trustee an Officers'
Certificate of the Company and an Opinion of Counsel, each stating that
such consolidation, merger or transfer and such supplemental indenture, if
any, comply herewith; and
(5) the Company shall have delivered to the Trustee an Opinion of
Counsel to the effect that none of the Holders of any series of Securities
will recognize income, gain or loss for U.S. federal income tax purposes as
a result of such transaction and all of such Holders will be subject to
U.S. federal income tax with respect to such Securities on the same
amounts, in the same manner and at the same times as would have been the
case if such transaction had not occurred,
provided, however, that clause (3) will not be applicable to any series of
Securities in the case of (A) a Restricted Subsidiary with respect to such
series consolidating with, merging into or transferring all or part of its
properties and assets to the Company or (B) the Company merging with an
Affiliate of the Company solely for the purpose and with the sole effect of
reincorporating the Company in another jurisdiction.
This Section 5.01(a) shall not prohibit any pledge of assets of the Company to
secure Indebtedness, including Indebtedness under the Credit Agreement. The
Successor Company will be the successor to the Company and shall succeed to, and
be substituted for, and may exercise every right and power of, the Company
hereunder, and the Company, except in the case of a lease, shall be released
from any Parent Guaranty and this Indenture.
(b) The Company shall not permit the Issuer of any series of
Securities to consolidate with or merge with or into, or convey, transfer or
lease, in one transaction or a series of transactions, all or substantially all
of its assets to any Person unless:
(1) the Successor Company (if not such Issuer) shall be a Person
organized and existing under the laws of the United States of America, or
any State thereof, and the Successor Company expressly assumes, by a
supplemental indenture, executed and delivered to the Trustee, in a form
reasonably satisfactory to the Trustee, all of the obligations of the
Issuer hereunder and under the Securities;
(2) immediately after giving effect to such transaction or
transactions on a pro forma basis (and treating any Indebtedness which
becomes an obligation of the Successor
45
Company as a result of such transaction or transactions as having been
issued by such Person at the time of such transaction), no Default with
respect to any series of Securities shall have occurred and be continuing;
(3) such Issuer of such series shall have delivered to the Trustee an
Officers' Certificate of such Issuer and an Opinion of Counsel, each
stating that such consolidation, merger or transfer and such supplemental
indenture, if any, comply herewith; and
(4) such Issuer shall have delivered to the Trustee an Opinion of
Counsel to the effect that none of the Holders of such series will
recognize income, gain or loss for U.S. federal income tax purposes as a
result of such transaction and all of such Holders will be subject to U.S.
federal income tax on the same amounts, in the same manner and at the same
times as would have been the case if such transaction had not occurred.
This Section 5.01(b) shall not prohibit any pledge of assets of such Issuer to
secure Indebtedness, including Indebtedness under the Credit Agreement or this
Indenture. The Successor Company will be the successor to such Issuer and shall
succeed to and be substituted for, and may exercise every right and power of
such Issuer under, the Securities of such series and this Indenture, and such
Issuer, except in the case of a lease, shall be released from its obligation to
pay the principal of and interest on any Securities of any series (including any
Coupons appertaining thereto) as to which such Issuer is the obligor.
(c) The Company shall not permit any Subsidiary Guarantor or
Collateral Obligor as to a series to consolidate with or merge with or into, or
convey, transfer or lease, in one transaction or a series of transactions, all
or substantially all of its assets to any Person, unless:
(1) except in the case of a Subsidiary Guarantor or Collateral Obligor
that has been entirely disposed to another person (other than to the
Company or an Affiliate thereof), whether through a merger, consolidation
or sale of capital stock or assets, if in connection therewith the Company
provides an Officers' Certificate of the Company to the Trustee to the
effect that the Company will, in respect of such disposition, comply with
any restrictions on sales of assets and subsidiary stock contained in the
applicable Series Supplement in respect of such series, the Successor
Company (if not such Subsidiary Guarantor or Collateral Obligor) expressly
assumes, by a written instrument, in a form reasonably satisfactory to the
Trustee, all of the obligations of such Subsidiary Guarantor or Collateral
Obligor, if any, under its Subsidiary Guaranty or Security Document, as the
case may be;
(2) immediately after giving effect to such transaction or
transactions on a pro forma basis (and treating any Indebtedness which
becomes an obligation of the Successor Company as a result of such
transaction or transactions as having been issued by such Person at the
time of such transaction), no Default with respect to any series of
Securities shall have occurred and be continuing;
46
(3) the Company shall have delivered to the Trustee an Officers'
Certificate of the Company and an Opinion of Counsel, each stating that
such consolidation, merger or transfer and such written instrument, if any,
complies herewith; and
(4) in the case of a Subsidiary Guarantor that is a Significant
Subsidiary, the Subsidiary Guarantor shall have delivered to the Trustee an
Opinion of Counsel to the effect that the Holders will not recognize
income, gain or loss for U.S. federal income tax purposes as a result of
such transaction and will be subject to U.S. federal income tax on the same
amounts, in the same manner and at the same times as would have been the
case if such transaction had not occurred.
This Section 5.01(c) shall not prohibit any pledge of assets of any Subsidiary
Guarantor or Collateral Obligor, as the case may be, to secure Indebtedness,
including Indebtedness under the Credit Agreement or this Indenture.
ARTICLE 6
Defaults and Remedies
SECTION 6.01 Events of Default. Except as otherwise provided in the
Series Supplement with respect to such series, an "Event of Default" in respect
of a series of Securities means any one of the following events:
(1) the Issuer of such series defaults in any payment of interest
on any Security of such series (including any Coupon appertaining
thereto) when the same becomes due and payable pursuant hereto, and
such default continues for a period of 30 days;
(2) the Issuer of such series (i) defaults in the payment of the
principal or premium, if any, of any Security of that series pursuant
hereto when the same becomes due and payable at its Stated Maturity,
upon optional or mandatory redemption, upon declaration of
acceleration or otherwise, or (ii) fails to purchase Securities of
that series when required pursuant hereto;
(3) the Company, the Issuer of such series, any Guarantor of such
series or any Collateral Obligor as to such series fails to comply
with Section 5.01;
(4) the Company or the Issuer of such series fails to comply with
Section 4.02, 4.03 or 4.04 or 10.08 (other than a failure to purchase
Securities of a series when required under Section 4.03) in respect of
the Securities of such series, and such failure continues for 30 days
after the notice specified below;
(5) the Issuer of such series or any Guarantor as to such series
fails to comply with any of its agreements herein (other than those
described in clause (1), (2), (3) or (4)
47
above) in respect of the Securities of such series, and such failure
continues for 60 days after the notice specified below;
(6) Indebtedness of the Company, the Issuer of such series, any
Guarantor of such series or any Significant Subsidiary of the Company
is not paid within any applicable grace period after final maturity or
is accelerated by the holders thereof because of a default and the
total amount of such Indebtedness unpaid or accelerated exceeds $10.0
million, or its foreign currency equivalent at the time of default;
(7) the Company, the Issuer of such series, any Guarantor of such
series or any Significant Subsidiary of the Company pursuant to or
within the meaning of any Bankruptcy Law:
(A) commences a voluntary case;
(B) consents to the entry of an order for relief against it
in an involuntary case;
(C) consents to the appointment of a custodian of it or for
any substantial part of its property; or
(D) makes a general assignment for the benefit of its
creditors;
or takes any comparable action under any foreign laws relating to
bankruptcy or insolvency;
(8) a court of competent jurisdiction enters an order or decree under
any Bankruptcy Law that:
(A) is for relief against the Company, the Issuer of such
series, any Guarantor of such series or any Significant
Subsidiary in an involuntary case;
(B) appoints a Custodian of the Company, the Issuer of such
series, any Guarantor of such series or any Significant
Subsidiary or for any substantial part of its property; or
(C) orders the winding up or liquidation of the Company, the
Issuer of such series, any Guarantor of such series or any
Significant Subsidiary; or
(D) grants any similar relief under any foreign laws;
and, in any such case, the order or decree remains unstayed and in effect
for 60 days.
(9) any judgment or decree for the payment of money in excess of $10.0
million (or its foreign currency equivalent at the time of entry of such
judgment or decree) above the coverage under applicable insurance policies
and indemnities as to
48
which the relevant insurer or indemnitor has not disclaimed responsibility
is entered against the Company, the Issuer of such series, any Guarantor of
such series or any Significant Subsidiary, remains outstanding for a period
of 60 days following the entry of such judgment or decree and is not
discharged or waived or does not have the execution thereof effectively
stayed (including by agreement) within 10 days after the notice specified
below;
(10) any Guaranty of such series or Security Document for such series
ceases to be in full force and effect (other than in accordance with the
terms of such Guaranty or Security Document) or any Guarantor of such
series or Collateral Obligor as to such series denies or disaffirms its
obligations under its Guaranty or Security Document, as the case may be; or
(11) the Trustee or any Collateral Agent for such series, at any time,
ceases to have a perfected security interest in any material Collateral
Security as to such series, or any loan that constitutes Collateral
Security is prepaid except in accordance with the terms thereof or this
Article 6;
(12) the Issuer of such series defaults in the payment of any sinking
or purchase fund or analogous obligation when the same becomes due and
payable pursuant hereto; or
(13) the occurrence of any other Event of Default relating to such
series provided in the Series Supplement under which such series is issued.
The occurrence of the foregoing events will constitute Events of Default
whatever the reason for any such event of default and whether it is voluntary or
involuntary or is effected by operation of law or pursuant to any judgment,
decree or order of any court or any order, rule or regulation of any
governmental body.
A Default under clauses (4), (5), (9), (12) or (13) is not an Event of
Default with respect to a series of Securities until the Trustee or the Holders
of at least 25% in principal amount of the outstanding Securities of such series
notify the Issuer of such series and the Company of the Default and the Issuer
or the Company fails to cure such Default within the time specified 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 Issuer of a series of Securities shall deliver to the Trustee,
within 30 days after the occurrence thereof, an Officers' Certificate of the
Issuer notifying the Trustee of any Event of Default under clause (6), (10) or
(11) with respect to such series and any event which with the giving of notice
or the lapse of time would become an Event of Default as to such series under
clauses (4), (5), (9), (12) or (13) with respect to any series, its status and
what action such Issuer is taking or proposes to take with respect thereto.
49
SECTION 6.02 Acceleration. If an Event of Default with respect to a
series of Securities (other than an Event of Default specified in Section
6.01(7) or 6.01(8) occurs and is continuing, the Trustee by notice to the Issuer
of such series, or the Holders of at least 25% in principal amount of the
Securities of such series then outstanding hereunder by notice to the Issuer and
the Trustee, may declare the principal (or, if the Securities of such series are
Original Issue Discount Securities, such portion of the principal amount as may
be specified in the Series Supplement relating to that series) of and accrued
but unpaid interest on all of the Securities of such series (including past due
Coupons appertaining thereto) then outstanding to be due and payable. Upon such
a declaration, such principal, premium, if any, and interest shall be due and
payable immediately. If an Event of Default specified in Section 6.01(7) or
6.01(8) with respect to the Company or the Issuer of such series occurs, the
principal (or, if the Securities of such series are Original Issue Discount
Securities, such portion of the principal amount as may be specified in the
Series Supplement relating to that series) of and interest on all of the
Securities of such series then outstanding hereunder (treated as one class)
shall ipso facto become and be immediately due and payable without any
declaration or other act on the part of the Trustee or any Holder of a series of
Securities. The Holders of a majority in principal amount of the Securities of
such series by notice to the Trustee may rescind an acceleration and its
consequences if the rescission would not conflict with any judgment or decree
and if all existing Events of Default have been cured or waived except
nonpayment of principal or interest that has become due solely because of
acceleration and if all payments (including fees and expenses) due to the
Trustee have been paid. No such rescission shall affect any subsequent Default
or impair any right consequent thereto.
SECTION 6.03 Other Remedies. If an Event of Default as to a series of
Securities occurs and is continuing, the Trustee may pursue any available remedy
to collect the payment of principal, premium, if any, and interest on the
Securities of such series or to enforce the performance of any provision of the
Securities of such series or this Indenture. The Trustee may maintain a
proceeding even if it does not possess any of the Securities of such series or
does not produce any of them in the proceeding. A delay or omission by the
Trustee or any Holder of such series in exercising any right or remedy accruing
upon an Event of Default as to such series shall not impair the right or remedy
or constitute a waiver of or acquiescence in such Event of Default. No remedy is
exclusive of any other remedy. All available remedies are cumulative.
SECTION 6.04 Waiver of Past Defaults. The Holders of a majority in
aggregate principal amount of the Securities of a series outstanding by notice
to the Trustee may waive an existing Default as to such series and its
consequences except (1) a Default in the payment of the principal, premium, if
any, and interest on such series, (2) a Default arising from the failure to
redeem or purchase any Security of such series when required pursuant hereto or
(3) a Default in respect of a provision that under Section 9.02 cannot be
amended without the consent of each Holder of such series affected. When a
Default as to a series is waived, it is deemed cured, but no such waiver shall
extend to any subsequent or other Default or impair any consequent right or
remedy.
50
SECTION 6.05 Control by Majority. The Holders of a majority in
principal amount of the Securities of a series outstanding may direct the time,
method and place of conducting any proceeding for exercising any remedy
available to the Trustee or of exercising any trust or power conferred on the
Trustee. However, the Trustee may refuse to follow any direction that conflicts
with law or this Indenture or, subject to Section 7.01, that the Trustee
determines is unduly prejudicial to the rights of other Holders of such series
or would involve the Trustee in personal liability; provided, however, that the
Trustee may take any other action deemed proper by the Trustee that is not
inconsistent with such direction. Prior to taking any action hereunder, the
Trustee shall be entitled to indemnification reasonably satisfactory to it
against all losses and expenses caused by taking or not taking such action.
SECTION 6.06 Limitation on Suits. Except to enforce the right to
receive payment of principal, premium, if any, or interest on Securities of any
series when due pursuant hereto, no Holder of a Securities of any series may
pursue any remedy with respect hereto or the Securities of such series unless:
(1) the Holder gives to the Trustee written notice stating that
an Event of Default with respect to such series has occurred and is
continuing;
(2) the Holders of at least 25% in principal amount of the
Securities of such series outstanding make a written request to the
Trustee to pursue the remedy;
(3) such Holder or Holders of such series offer to the Trustee
reasonable security or indemnity against any loss, liability or
expense;
(4) the Trustee does not comply with the request within 60 days
after receipt of the request and the offer of security or indemnity;
and
(5) the Holders of a majority in principal amount of the
Securities of such series outstanding do not give the Trustee a
direction inconsistent with the request during such 60-day period.
A Holder of Securities of any series may not use this Indenture to
prejudice the rights of another Holder of such series or to obtain a preference
or priority over another Holder of such series.
SECTION 6.07 Rights of Holders to Receive Payment. Notwithstanding any
other provision hereof, the right of any Holder of any Security of any series to
receive payment of principal of and interest on the Securities of such series
held by such Holder (including payment of any Coupon appertaining thereto) on or
after the date such payment becomes due and payable pursuant hereto, or to bring
suit for the enforcement of any such payment, shall not be impaired or affected
without the consent of such Holder.
SECTION 6.08 Collection Suit by Trustee. If an Event of Default as to
a series specified in Section 6.01(1) or (2) occurs and is continuing, the
Trustee may recover judgment in its own
51
name and as trustee of an express trust against the Issuer of such series for
the whole amount then due and owing (together with interest on any unpaid
interest to the extent lawful) and the amounts provided for in Section 7.07.
SECTION 6.09 Trustee May File Proofs of Claim. The Trustee may file
such proofs of claim and other papers or documents as may be necessary or
advisable in order to have the claims of the Trustee and the Holders of any
series of Securities allowed in any judicial proceedings relative to the Issuer,
its creditors or its property, may collect and receive any monies or other
property payable or deliverable on any such claims, distribute the same after
the deduction of any amounts due the Trustee under Section 7.07, and take any
other action with respect to such claims, including participating as a member of
any official committee of creditors, as it reasonably deems necessary or
advisable, 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 amounts due under Section 7.07.
SECTION 6.10 Priorities. If the Trustee collects any money or property
pursuant to this Article 6 with respect to Securities of any series, it shall
pay out the money or property in the following order:
FIRST: to the Trustee for amounts due under Section 7.07 or any other
provision hereof;
SECOND: to Holders of such series for amounts due and unpaid on the
Securities (including Coupons) of such series for principal, premium,
if any, and interest, ratably, without preference or priority of any
kind, according to the amounts due and payable on the Securities of
such series for principal, premium, if any, and interest, respectively;
and
THIRD: to the Issuer.
The Issuer (or, if the Issuer fails to do so within 10 days after
request from the Trustee, the Trustee) may fix a Record Date and payment date
for any payment to Holders of Securities of such series pursuant to this Section
6.10. At least 15 days before such Record Date, the Issuer shall give to each
Holder of such series and the Trustee a notice that states the Record Date, the
payment date and amount to be paid (or, if the Issuer fails to do so, the
Trustee shall do so at the Issuer's expense).
SECTION 6.11 Undertaking for Costs. In any suit for the enforcement of
any right or remedy hereunder or in any suit against the Trustee for any action
taken or omitted by it as Trustee, a court in its discretion may require the
filing by any party litigant in the suit of an undertaking to pay the costs of
the suit, and the court in its discretion may assess reasonable costs, including
reasonable attorneys' fees, against any party litigant in the suit, having due
regard to the merits and good faith of the claims or defenses made by the party
litigant. This Section 6.11 shall not require such undertaking in a suit by the
Trustee, a suit by a Holder
52
pursuant to Section 6.07 or a suit by Holders of more than 10% in principal
amount of the Securities of any series to which the suit relates.
SECTION 6.12 Waiver of Stay or Extension Laws. The Company, each Issuer
and each Guarantor (to the extent they 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 this Indenture. Each of the Company, each
Issuer and each Guarantor (to the extent that they 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 granted herein to the Trustee, but
shall suffer and permit the execution of every such power as though no such law
had been enacted.
ARTICLE 7
Trustee
SECTION 7.01 Duties of Trustee.
(a) If an Event of Default in respect of a series of Securities has
occurred and is continuing, the Trustee shall exercise with respect to
Securities of that series the rights and powers vested in it by this Indenture
and use the same degree of care and skill in their exercise as a prudent Person
would exercise or use under the circumstances in the conduct of such Person's
own affairs.
(b) Except during the continuance of an Event of Default:
(1) the Trustee undertakes to perform such duties and only such duties
as are specifically set forth herein and no implied covenants or
obligations shall be read into this Indenture against the Trustee; and
(2) in the absence of bad faith on its part, the Trustee may with
respect to Securities of any series conclusively rely, as to the truth of
the statements and the correctness of the opinions expressed therein, upon
certificates or opinions furnished to the Trustee and conforming to the
requirements hereof; provided, however, that the Trustee shall examine the
certificates and opinions to determine whether or not they conform to the
requirements hereof.
(c) The Trustee may not be relieved from liability for its own
negligent action, its own negligent failure to act or its own wilful misconduct,
except that:
(1) this Section 7.01(c) does not limit the effect of Section 7.01(b);
(2) the Trustee shall not be liable for any error of judgment made in
good faith by a Trust Officer unless it is proven that the Trustee was
negligent in ascertaining the pertinent facts; and
53
(3) the Trustee shall not be liable with respect to any action it
takes or omits to take in good faith in accordance with a direction
received by it pursuant to Section 6.05.
(d) Notwithstanding anything to the contrary contained herein, every
provision hereof that in any way relates to the Trustee is subject to
Sections 7.01(a), 7.01(b) and 7.01(c).
(e) The Trustee shall not be liable for interest on any money received
by it except as the Trustee may agree in writing with the Company or the
Issuer of the series of Securities in respect of which such money is
received.
(f) Money held in trust by the Trustee need not be segregated from
other funds except to the extent required by law.
(g) No provision hereof shall require the Trustee to expend or risk
its own funds or otherwise incur financial liability in the performance of
any of its duties hereunder or in the exercise of any of its rights or
powers, if it shall have reasonable grounds to believe that repayment of
such funds or adequate indemnity against such risk or liability is not
reasonably assured to it.
(h) Every provision hereof relating to the conduct or affecting the
liability of or affording protection to the Trustee shall be subject to the
provisions of this Article 7 and to the provisions of the TIA.
SECTION 7.02 Rights of Trustee.
(a) The Trustee may rely on any document believed by it to be
genuine and to have been signed or presented by the proper Person. The Trustee
need not investigate any fact or matter stated in such document.
(b) Before the Trustee acts or refrains from acting as to the
Securities of any series, it may require an Officers' Certificate of the Issuer
of such series or an Opinion of Counsel. The Trustee shall not be liable for any
action it takes or omits to take in good faith in reliance on such Officers'
Certificate or Opinion of Counsel.
(c) The Trustee may act through agents and shall not be
responsible for the misconduct or negligence of any agent appointed by it with
due care.
(d) The Trustee shall not be liable for any action it takes or
omits to take in good faith which it believes to be authorized or within its
rights or powers; provided, however, that the Trustee's conduct does not
constitute wilful misconduct or negligence.
(e) The Trustee may consult with counsel, and the advice or
opinion of counsel with respect to legal matters relating hereto and the
Securities of any series, shall be full
54
and complete authorization and protection from liability in respect to any
action taken, omitted or suffered by it hereunder in good faith and in
accordance with the advice or opinion of such counsel.
(f) Any permissive right or authority granted to the Trustee
shall not be construed as a mandatory duty.
SECTION 7.03 Individual Rights of Trustee. The Trustee in its
individual or any other capacity may become the owner or pledgee of Securities
of any series (including Coupons appertaining thereto) and may otherwise deal
with the Company or any of its Affiliates (including any Issuer) with the same
rights it would have if it were not Trustee. However, if the Trustee acquires
any conflicting interest in respect of the Holders of a series, it must
eliminate such conflict within 90 days, apply to the SEC for permission to
continue as Trustee as to such series or resign. Any Paying Agent or Registrar
may do the same with like rights. However, the Trustee must comply with Sections
7.10 and 7.11.
SECTION 7.04 Trustee's Disclaimer. The Trustee shall not be responsible
for and makes no representation as to the validity or adequacy hereof or of the
Securities of any series (including any Coupons appertaining thereto), shall not
be accountable for the Issuer's use of the proceeds from the Securities of any
series (including any Coupons appertaining thereto), and shall not be
responsible for any statement of the Issuer herein or in any document relating
to the issuance or sale of the Securities of any series (including any Coupons
appertaining thereto), other than the Trustee's certificate of authentication.
SECTION 7.05 Notice of Defaults. If a Default as to the Securities of
any series occurs and is continuing and if it is known to the Trustee, the
Trustee shall give to each Holder of such series notice of the Default within 90
days after it becomes so known. Except in the case of a Default in the payment
of principal, premium, if any, and interest on such series or in the payment of
any sinking fund installment or purchase price, or analogous obligation, with
respect to Securities of such series, the Trustee may withhold such 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 Holders of Securities
of such series (including Coupons appertaining thereto). Subject to this Section
7.05, the Trustee shall promptly send any such notice to any Collateral Agent
for such series.
SECTION 7.06 Reports by Trustee to Holders. As promptly as practicable
after each May 15 beginning with the May 15 following the date hereof, and in
any event prior to July 15 in each year, the Trustee shall mail to each Holder
of each series of Registered Securities outstanding a brief report dated as of
such May 15 that complies with TIA ss. 313(a). The Trustee also shall comply
with TIA ss. 313(b). A copy of each report at the time of its mailing to Holders
of such series of Registered Securities shall be filed with the SEC and each
securities exchange or market, if any, on which the Securities of such series
are listed. The Issuer of each series of Securities agrees to notify promptly
the Trustee whenever the Securities of such series become listed on any
securities exchange or market and of any delisting thereof.
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SECTION 7.07 Compensation and Indemnity. The Company shall or shall
cause one or more Issuers to pay the Trustee from time to time reasonable
compensation for its services. The Trustee's compensation shall not be limited
by any law on compensation of a trustee of an express trust. The Company shall
or shall cause one or more Issuers to reimburse the Trustee upon request for all
reasonable out-of-pocket expenses incurred or made by it, including costs of
collection, in addition to the compensation for its services. Such expenses
shall include the reasonable compensation and expenses, disbursements and
advances of the Trustee's agents, counsel, accountants and experts. The Company
and each Issuer shall jointly and severally indemnify the Trustee against any
and all loss, liability or expense (including reasonable attorneys' fees)
incurred by it in connection with the administration of this trust and the
performance of its duties hereunder. The Trustee shall notify the Company and
each Issuer promptly of any claim for which it may seek indemnity. Failure by
the Trustee to so notify the Company or any Issuer shall not relieve the Company
or such Issuer of their obligations hereunder. The Company or any Issuer shall
defend the claim and the Trustee may have separate counsel, and the Company and
any Issuer shall pay the reasonable fees and expenses of such counsel. Neither
the Company nor any Issuer need pay for any settlement made without the consent
of the Company and any such Issuer, which consent shall not be unreasonably
withheld. Neither the Company nor any Issuer need reimburse any expense or
indemnify against any loss, liability or expense incurred by the Trustee through
the Trustee's own wilful misconduct, negligence or bad faith. To secure the
payment obligations of Company and each Issuer in this Section 7.07(a), the
Trustee shall have a lien prior to the Securities of all series (including any
Coupons appertaining thereto) on all money or property held or collected by the
Trustee other than money or property held in trust to pay principal of and
interest on particular Securities of any series (including any Coupons
appertaining thereto). Such payment obligations shall survive the discharge
hereof. When the Trustee incurs expenses after the occurrence of a Default
specified in Section 6.01(7) or 6.01(8) with respect to the Company, an Issuer,
a Guarantor of a Collateral Obligor, the expenses are intended to constitute
expenses of administration under the Bankruptcy Law.
SECTION 7.08 Replacement of Trustee.
(a) The Trustee as to Securities of any series may resign at any
time by giving notice to the Company and the Issuer of such series. The Holders
of a majority in principal amount of the Securities of any series may (1) remove
the Trustee as to such series by giving notice to the Trustee of such series and
(2) appoint a successor Trustee as to such series. The Issuer of any series of
Securities shall remove the Trustee as to such series if:
(1) the Trustee as to such series fails to comply with Section
7.10 with respect to such series;
(2) the Trustee as to such series is adjudged bankrupt or
insolvent;
(3) a receiver or other public officer takes charge of the
Trustee as to such series or its property; or
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(4) the Trustee as to such series otherwise becomes incapable of
acting with respect to such series.
(b) If the Trustee as to a series of Securities resigns, is
removed by the Issuer of such series or is removed by the Holders of a majority
in principal amount of such series then outstanding, 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 Issuer of such series shall promptly
appoint a successor Trustee as to such series.
(c) A successor Trustee as to a series of Securities shall
deliver a written acceptance of its appointment to the retiring Trustee and to
the Issuer of such series. Thereupon the resignation or removal of the retiring
Trustee shall become effective and the successor Trustee shall have all of the
rights, powers and duties of the Trustee hereunder. The successor Trustee shall
give notice of its succession to all Holders of Securities of such series, in
the manner provided in Section 12.02. The retiring Trustee shall promptly
transfer all property held by it as Trustee to the successor Trustee, subject to
the lien provided in Section 7.07.
(d) If a successor Trustee does not take office within 60 days
after the retiring Trustee as to any series of Securities resigns or is removed,
the retiring Trustee or the Holders of 10% in principal amount of the Securities
of such series may petition any court of competent jurisdiction for the
appointment of a successor Trustee.
(e) If the Trustee as to any series of Securities fails to comply
with Section 7.10, any Holder of such series may petition any court of competent
jurisdiction for the removal of the Trustee and the appointment of a successor
Trustee.
(f) Notwithstanding the replacement of the Trustee as to any
series of Securities pursuant to this Section 6.08, the obligations of the
Company and each affected Issuer under Section 7.07 shall continue for the
benefit of the retiring Trustee.
(g) A Trustee being succeeded pursuant to Section 7.08(b) or
7.08(e) is referred to herein as the "retiring Trustee."
SECTION 7.09 Successor Trustee by Merger. If the Trustee as to a series
of Securities consolidates with, merges or converts into, or transfers all or
substantially all of its corporate trust business or assets to, another Person,
the Successor Company shall, without any further act, be the successor Trustee
as to such series and shall succeed to the trusts created hereby. Certificates
for any of the Securities of such series that shall have been authenticated but
not delivered by the predecessor trustee may be adopted and delivered by the
successor trustee. Certificates for any of the Securities of such series that
shall not have been authenticated may be authenticated either by the successor
trustee in the name of any predecessor trustee or in the name of the successor
trustee and likewise adopted and delivered. In all such cases, such certificates
shall have the full force and effect for all purposes which certificate of any
predecessor trustee would have had.
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SECTION 7.10 Eligibility; Disqualification. The Trustee as to the
Securities of any series shall at all times satisfy the requirements of TIA ss.
310(a). The Trustee as to any series shall have a combined capital and surplus
of at least $50,000,000 as set forth in its most recent published annual report
of financial condition. The Trustee as to each series shall comply with TIA ss.
310(b); provided, however, that there shall be excluded from the operation of
TIA ss. 310(b)(1) any indenture or indentures under which other securities or
certificates of interest or participation in other securities of the Issuer of a
series are outstanding if the requirements for such exclusion set forth in TIA
ss. 310(b)(1) are met. In determining whether the Trustee as to any series has a
conflicting interest as defined in TIA ss. 310(b)(1) with respect to the
Securities of such series, there shall be excluded for purposes of the
conflicting interest provisions of such ss. 310(b) the Securities of every other
series issued hereunder and under the Indenture dated as of February 15, 2002,
among the Company, GrafTech Finance, the Guarantors named therein and U.S. Bank,
N.A./U.S. Bancorp, as successor to State Street Bank and Trust Company, as
Trustee, under which $550,000,000 aggregate principal amount of 10 1/4% Senior
Notes due 2012 were originally issued.
SECTION 7.11 Preferential Collection of Claims Against Company. The
Trustee as to each series shall comply with TIA ss. 311(a), excluding any
creditor relationship listed in TIA ss. 311(b). Any Trustee who has resigned or
been removed shall be subject to TIA ss. 311(a) to the extent indicated in the
TIA.
ARTICLE 8
Satisfaction and Discharge of Indenture; Defeasance
SECTION 8.01 Satisfaction and Discharge of Liability on Securities;
Defeasance.
(a) When (1) the Issuer of a series of Securities delivers to the
Trustee all outstanding Securities of such series (other than Securities of such
series replaced pursuant to Section 2.08, and Coupons appertaining to Bearer
Securities of such series surrendered in exchange for Registered Securities of
such series and maturing after such exchange whose surrender is not required or
has been waived as provided in Section 2.13) (including any Coupons appertaining
thereto) for cancellation or (2) all outstanding Securities of such series
(including any Coupons appertaining thereto), have become due and payable,
whether at Maturity, on a redemption date or otherwise, and the Issuer of such
series irrevocably deposits with the Trustee funds sufficient to pay at
Maturity, upon redemption or otherwise all outstanding Securities of such series
and any Coupon appertaining thereto, including interest thereon to Maturity, or
such redemption date (other than Securities replaced pursuant to Section 2.08),
and if in either case the Issuer of such series pays all other sums payable
hereunder by the Company or the Issuer of such series, then this Indenture
shall, subject to Section 8.01(c), cease to be of further effect as to such
series. The Trustee shall acknowledge satisfaction and
58
discharge hereof as to such series on demand of the Issuer of such series
accompanied by an Officers' Certificate of the Issuer of such series and an
Opinion of Counsel and at the cost and expense of the Issuer of such series.
(b) Subject to Sections 8.01(c) and 8.02, the Company, any Issuer of a
series of Securities, and any Guarantor or Collateral Obligor of a series of
Securities at any time may terminate (1) all of their obligations under the
Securities of such series (including any Coupons appertaining thereto), and any
related Guaranties and Security Documents as to such series ("legal defeasance
option") or (2) their obligations under Sections 4.02, 4.03, 4.04 and 10.08 and
the operation of Sections 6.01(4), 6.01(6), 6.01(7), 6.01(8), 6.01(9), 6.01(10),
6.01(11), 6.01(12) and 6.01(13) as to such series, but, in the case of Sections
6.01(7) and 6.01(8), with respect only to Significant Subsidiaries, and the
limitations contained in Sections 5.01(a)(3) and 5.01(a)(4) as to such series
("covenant defeasance option"). The Issuer of a series may exercise its legal
defeasance option notwithstanding its prior exercise of its covenant defeasance
option.
If the Issuer of a series of Securities exercises its legal defeasance
option as to such series, payment of the Securities of such series (including
any Coupons appertaining thereto) may not be accelerated because of an Event of
Default with respect thereto. If the Issuer of a series of Securities exercises
its covenant defeasance option, payment of the Securities of such series may not
be accelerated because of an Event of Default specified in Sections 6.01(4),
6.01(6), 6.01(7), 6.01(8), 6.01(9), 6.01(10), 6.01(11), 6.01(12) and 6.01(13),
but, in the case of Sections 6.01(7) and (8), with respect only to Significant
Subsidiaries, or because of the failure of the Issuer of such series to comply
with Section 5.01(a)(3) or (4). If the Issuer of a series of Securities
exercises its legal defeasance option or its covenant defeasance option, each
Guarantor, if any, and Collateral Obligor, if any, shall be released from all of
its obligations with respect to its Guaranty or Security Documents, if any,
respectively, as to such series (including any Coupons appertaining thereto),
and any Collateral Security relating to such series (including any Coupons
appertaining thereto) will be released.
(c) Notwithstanding Sections 8.01(a) and 8.01(b), the obligations of
the Issuer of a series of Securities in Sections 2.03, 2.04, 2.05, 2.06, 2.07,
2.08, 2.09, 2.10, 2.11, 2.13, 7.07 and 7.08 and in this Article 8 as to such
series shall survive until the Securities of such series (including any Coupons
appertaining thereto) have been paid in full. Thereafter, the obligations of
such Issuer in Sections 7.07, 8.04 and 8.05 shall survive.
SECTION 8.02 Conditions to Defeasance. The Issuer of a series of
Securities may exercise its legal defeasance option or its covenant defeasance
option only if:
(1) such Issuer irrevocably deposits in trust with the Trustee money
or U.S. Government Obligations for the payment of principal of and interest
on the Securities of such series (including any Coupons appertaining
thereto) to Maturity or redemption, as the case may be;
(2) such Issuer delivers to the Trustee a certificate from a
nationally recognized firm of independent accountants expressing their
opinion that the payments of
59
principal, premium, if any, and interest when due and without reinvestment
on the deposited U.S. Government Obligations plus any deposited money
without investment will provide cash at such times and in such amounts as
will be sufficient to pay principal, premium, if any, and interest when due
on all of the Securities of such series (and any Coupon appertaining
thereto) to maturity or redemption, as the case may be;
(3) 123 days pass after the deposit is made and during the 123-day
period no Default specified in Sections 6.01(7) or 6.01(8) with respect to
the Securities of such series occurs which is continuing at the end of the
period;
(4) the deposit does not constitute a default under any other
agreement binding on the Company, any Issuer hereunder, any Guarantor
hereunder or any Collateral Security Obligor hereunder;
(5) the Issuer of such series delivers to the Trustee an Opinion of
Counsel to the effect that the trust resulting from the deposit does not
constitute, or is qualified as, a regulated investment company under the
Investment Company Act of 1940, as amended;
(6) in the case of the legal defeasance option, the Issuer of such
series shall have delivered to the Trustee an Opinion of Counsel stating
that (A) such Issuer has received from, or there has been published by, the
Internal Revenue Service a ruling, or (B) since the date hereof there has
been a change in the applicable U.S. federal income tax law, in either case
to the effect that, and based thereon such Opinion of Counsel shall confirm
that, the Holders of such series will not recognize income, gain or loss
for U.S. federal income tax purposes as a result of such defeasance and
will be subject to federal income tax on the same amounts, in the same
manner and at the same times as would have been the case if such defeasance
had not occurred;
(7) in the case of the covenant defeasance option, the Issuer of such
series delivers to the Trustee an Opinion of Counsel to the effect that the
Holders of such series will not recognize income, gain or loss for U.S.
federal income tax purposes as a result of such covenant defeasance and
will be subject to federal income tax on the same amounts, in the same
manner and at the same times as would have been the case if such covenant
defeasance had not occurred; and
(8) the Issuer of such series delivers to the Trustee an Officers'
Certificate of such Issuer and an Opinion of Counsel, each stating that all
conditions precedent to the defeasance and discharge of the Securities of
such series as contemplated by this Article 8 have been complied with.
Before or after a deposit, the Issuer of a series of Securities may make
arrangements reasonably satisfactory to the Trustee for the redemption of
Securities of such series (including any Coupons appertaining thereto) that had
matured (in whole or in part) as of the redemption date) at a future date in
accordance with Article 3.
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SECTION 8.03 Application of Trust Money. The Trustee as to any series
of Securities shall hold in trust money or U.S. Government Obligations deposited
with it as to such series pursuant to this Article 8. It shall apply the
deposited money and the money from U.S. Government Obligations through any
Paying Agent as to such series and in accordance herewith to the payment of
principal of and interest on the Securities of such series (including any
Coupons appertaining thereto).
SECTION 8.04 Repayment to Company. The Trustee and any Paying Agent as
to a series of Securities shall promptly turn over to the Issuer of such series
upon request any excess money or securities held by them at any time in respect
of such series of Securities. Subject to any applicable abandoned property law,
the Trustee as to such series and any Paying Agent as to such series shall pay
to the Issuer of such series upon request any money held by them for the payment
of principal, premium, if any, or interest that remains unclaimed for two years
and, thereafter, Holders of such series entitled to the money must look to the
Issuer of such series for payment as general creditors, and all liability of the
Trustee as to such series or any Paying Agent as to such series with respect to
the money and the related trust, and all liability of the Issuer of such series
as trustee thereof, shall of thereupon cease; provided, however, that the
Trustee as to such series or any Paying Agent as to such series, before being
required to make any such repayment, may (at the expense of the Issuer of such
series) cause to be given, in the manner set forth in Section 12.02, notice to
Holders of Securities of such series, that such money remains unclaimed and
that, after a date specified therein, which shall not be less than 30 days from
the date of the giving of the notice nor shall it be later than two years after
such principal, premium, if any, or interest shall have become due and payable,
any unclaimed balance of the money then remaining will be repaid to the Issuer
of such series.
SECTION 8.05 Indemnity for Government Obligations. The Company (or the
Issuer of a series) 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, premium, if any, and interest received on such
U.S. Government Obligations in respect of such series.
SECTION 8.06 Reinstatement. If the Trustee or any Paying Agent as to a
series is unable to apply any money or U.S. Government Obligations in accordance
with this Article 8 by reason of any legal proceeding or by reason of any order
or judgment of any court or governmental authority enjoining, restraining or
otherwise prohibiting such application, the obligations of the Issuer of such
series and any Guarantor or Collateral Obligor as to such series hereunder, and
the Securities of such series, shall be revived and reinstated as though no
deposit had occurred pursuant to this Article 8 until such time as the Trustee
as to such series or any Paying Agent as to such series is permitted to apply
such money or U.S. Government Obligations in accordance with this Article 8;
provided, however, that, if the Issuer of such series has made any payment of
interest on or principal of any Securities of the relevant series because of the
reinstatement of its obligations, the Issuer of such series shall be subrogated
to the rights of the Holders of Securities of such series to receive such
payment from the money or U.S. Government Obligations held by the Trustee or any
Paying Agent as to such series.
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ARTICLE 9
Amendments
SECTION 9.01 Without Consent of Holders. The Company, any Issuer, the
Guarantors, if any, the Collateral Obligors, if any, and the Trustee may amend
this Indenture, the Securities or any Guaranty or Security Document, without
notice to or consent of any Holder:
(1) to cure any ambiguity, omission, defect or inconsistency;
(2) to establish any form of Securities and to provide for the
issuance of any series of Securities, in each case as provided in
Article 2, and to set forth the terms thereof;
(3) to add to the rights of the Holders of Securities of any
series;
(4) to comply with Article 5;
(5) to provide for uncertificated Securities in addition to or in
place of certificated Securities; provided, however, that the
uncertificated Securities are issued in registered form for purposes
of Section 163(f) of the Code or in a manner such that the
uncertificated Securities are described in Section 163(f)(2)(B) of the
Code;
(6) to provide or add Guarantees with respect to Securities of
any or all series, including any Guaranties, or to secure or provide
additional security with respect to Securities of any or all series,
or to amend the terms of the Guarantees or Security Documents to the
extent necessary in order to comply with applicable law so long as the
additions or amendments do not affect any of the material terms
thereof adversely to the Holders of Securities of such series;
(7) to add to the covenants of the Company, any Issuer, any
Guarantor or any Collateral Obligor for the benefit of Holders of
Securities for any or all series or to surrender any right or power
conferred herein upon the Company, any Issuer, any Guarantor or any
Collateral Obligor as to any or all series of Securities;
(8) to make any change that does not adversely affect the rights
of any Holders of Securities of any series then outstanding;
(9) to comply with any requirements of the SEC in connection with
qualifying, or maintaining the qualification of, this Indenture under
the TIA;
(10) to provide for the acceptance of appointment hereunder by a
successor Trustee with respect to the Securities of one or more
series, pursuant to the requirements of Section 7.08, and to add to or
change any of the provisions hereof as shall be necessary
62
to provide for or facilitate the administration of the trusts
hereunder by more than one Trustee;
(11) to add Events of Default for the benefit of Holders of
Securities of any or all series;
(12) to add or change any provisions to facilitate the issuance
of Bearer Securities (including to permit Bearer Securities to be (a)
issued in exchange for Registered Securities or (b) exchanged for
Bearer Securities of other authorized denominations, in each case so
long as the additions or changes do not adversely affect the interests
of Holders of Securities of any series in any material respect); or to
change or eliminate any restrictions on the payment of principal of or
premium, if any, or interest on Bearer Securities;
(13) to change or eliminate any covenant or other provision
hereof (but only if any such change or elimination will become
effective only when there are no outstanding Securities created prior
to the change or elimination that are entitled to the benefit of such
covenant or provision); or
(14) as permitted under any Guaranty or Security Document.
After an amendment under this Section 9.01 becomes effective, the Company shall
or shall cause the relevant Issuer to give to Holders of any affected series of
Securities a notice briefly describing such amendment. The failure to give such
notice to all Holders, or any defect therein, shall not impair or affect the
validity of an amendment under this Section 9.01.
SECTION 9.02 With Consent of Holders. The Company, any Issuer, any
Guarantor or Collateral Obligors and the Trustee may amend this Indenture, the
Securities or any Guaranty or Security Document, and any past Default or
non-compliance with any provisions hereof may be waived, without notice to any
Holder but with the written consent of the Holders of at least a majority in
principal amount of the Securities of such series affected thereby that are then
outstanding (including consents obtained in connection with a tender or exchange
offer or other exchange for the Securities of such series). However, without the
consent of each Holder of a series of Securities affected thereby, an amendment
or waiver may not:
(1) reduce the amount of the Securities of such series whose
Holders must consent to an amendment or waiver;
(2) reduce the rate of or extend the time for payment of interest
on any Security of such series (including any Coupons appertaining
thereto);
(3) reduce the principal amount of or premium on any Security of
such series or extend the Stated Maturity of any Security of such
series, or change the method of computing the amount of principal or
premium on any Security of such series;
63
(4) reduce the interest on any Security of such series, or change
the method of computing the interest on any Security of such series
(including any Coupons appertaining thereto);
(5) reduce the amount payable upon the redemption of any Security
of such series or change the time at which any Security of such series
may be redeemed;
(6) make any Security of such series payable in money other than
that stated in the Security of such series;
(7) impair the right of any Holder of Securities of such series
to receive payment of principal of and interest on the Securities of
such series of such Holder of such series on or after the due dates
therefor or to institute suit for the enforcement of any payment on or
with respect to any Securities of such series;
(8) make any change in Section 6.04 or 6.07 or the second
sentence of this Section 9.02;
(9) make any changes in the ranking or priority of any Security
of such series that would adversely affect the Holders of such series;
(10) change any obligation to pay additional amounts in respect
of any Security of such series;
(11) reduce the amount of principal of an Original Issue Discount
Security that would be due and payable upon a declaration of
acceleration of the maturity of the Original Issue Discount Security;
(12) make any change that would adversely affect the Holders of
such series to any Guaranty or Collateral Security, except as
expressly permitted by this Indenture or such Guaranty or the relevant
Security Documents;
(13) modify the change of control provisions, if any, as to any
Security of such series;
(14) release any Guarantor from its Guarantee or to release any
Collateral Security under any Security Document, in each case except
as expressly permitted by this Indenture or such Guaranty or the
relevant Security Documents; or
(15) adversely change the right to convert or exchange, including
decreasing the optional or mandatory conversion or exchange rate or
increasing the optional or mandatory conversion or exchange price of,
any Security of such series, if any, in each case except as expressly
permitted by this Indenture or such Guaranty or the relevant Security
Documents.
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[IN ADDITION, WITHOUT THE CONSENT OF EACH HOLDER OF A COUPON WITH RESPECT TO A
SERIES OF SECURITIES AFFECTED THEREBY, AN AMENDMENT OR WAIVER MAY NOT REDUCE THE
RATE OF OR EXTEND THE TIME FOR PAYMENT OF SUCH COUPON.]
It shall not be necessary for the consent of Holders of an affected series under
this Section 9.02 to approve the particular form of any proposed amendment or
waiver, but it shall be sufficient if such consent approves the substance
thereof. After an amendment or waiver under this Section 9.02 becomes effective,
the Company shall or shall cause the relevant Issuer to give to Holders of any
affected series a notice briefly describing such amendment or waiver. The
failure to give such notice to all Holders of any affected series, or any defect
therein, shall not impair or affect the validity of an amendment or waiver under
this Section 9.02.
SECTION 9.03 Compliance with Trust Indenture Act. Every amendment
hereto or to the Securities shall comply with the TIA as then in effect.
SECTION 9.04 Revocation and Effect of Consents and Waivers.
(a) A consent to an amendment or a waiver by a Holder of a
Security shall bind the Holder and every subsequent Holder of that Security (or
portion of the Security that evidences the same debt as the consenting Holder's
Security), even if notation of the consent or waiver is not made on the
Security. However, any such Holder or subsequent Holder may revoke the consent
or waiver as to such Holder's Security (or portion thereof) if the Trustee
receives the notice of revocation before the date the amendment or waiver
becomes effective. After an amendment or waiver becomes effective, it shall bind
every Holder of the series of Securities affected thereby. An amendment or
waiver becomes effective upon the execution of such amendment or waiver by the
Trustee.
(b) The Issuer may, but shall not be obligated to, fix a record
date for the purpose of determining Holders entitled to give their consent or
take any other action required or permitted to be given or taken pursuant
hereto. If a record date is fixed, then notwithstanding Section 9.04(a), those
Persons who were Holders at such record date (or their duly designated proxies),
and only those Persons, shall be entitled to give such consent or to revoke any
consent previously given or to take any such action, whether or not such Persons
continue to be Holders after such record date. No such consent shall be valid or
effective for more than 120 days after such record date.
SECTION 9.05 Notation on or Exchange of Securities. If an amendment
changes the terms of a Security, the Trustee may require the Holder of the
Security to deliver it to the Trustee. The Trustee may place an appropriate
notation on the Security regarding the changed terms and return it to the
Holder. Alternatively, if the Issuer as to a series of Securities or the Trustee
so determines, the Issuer of such series shall prepare, issue and execute a new
Security in exchange for the Security and the Trustee shall authenticate such
new Security, that reflects the changed terms. Failure to make the appropriate
notation or to issue a new Security of such series shall not affect the validity
of such amendment.
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SECTION 9.06 Trustee to Sign Amendments. The Trustee shall sign any
amendment authorized pursuant to this Article 9 if the amendment does not
adversely affect the rights, duties, liabilities or immunities of the Trustee.
If it does, the Trustee may but need not sign it. In signing such amendment, the
Trustee shall be entitled to receive indemnity reasonably satisfactory to it and
to receive, and, subject to Section 7.01, shall be fully protected in relying
upon, an Officers' Certificate of the Issuer of the series of Securities
effected thereby and an Opinion of Counsel stating that such amendment is
authorized or permitted by this Indenture.
SECTION 9.07 Payment for Consent. Neither the Company nor any Affiliate
of the Company shall, directly or indirectly, pay or cause to be paid any
consideration, whether by way of interest, fee or otherwise, to any Holder for
or as an inducement to any consent, waiver or amendment of any of the terms or
provisions hereof or of the Securities unless such consideration is offered to
be paid to all Holders that so consent, waive or agree to amend within the time
frame, as it may be extended, set forth in solicitation documents relating to
such consent, waiver or agreement.
SECTION 9.08 Reference in Securities to Supplemental Indenture
Securities of any series affected thereby that are authenticated and delivered
after the execution of any supplemental indenture pursuant to this Article may,
and shall if required by the Trustee, bear a notation in form approved by the
Trustee as to any matter provided in such supplemental indenture. If the Issuer
of such series shall so determine, new Securities of such series that are
modified to conform, in the opinion of the Trustee and the Issuer of such
series, to any such supplemental indenture may be prepared, executed and
delivered by the Issuer of such series and authenticated and delivered by the
Trustee in exchange for outstanding Securities of such series.
ARTICLE 10
Guaranties
SECTION 10.01 Guaranties.
(a) Each Guarantor, if any, as to a series of Securities hereby
unconditionally and irrevocably guarantees, jointly and severally, to each
Holder of Securities of such series and to the Trustee and its successors and
assigns (1) the full and punctual payment of principal of and interest on the
Securities of such series when due, whether at Maturity, by acceleration, by
redemption or otherwise, and all other monetary obligations of the Issuer
hereunder and the Securities of such series and (2) the full and punctual
performance within applicable grace periods of all other obligations of the
Issuer hereunder and the Securities of such series (collectively called the
"Debt Obligations"). Each Guarantor further agrees that the Debt Obligations may
be extended or renewed, in whole or in part, without notice or further assent
from such Guarantor and that such Guarantor will remain bound under this Article
10 with respect to such series notwithstanding any extension or renewal of any
Debt Obligation.
(b) Each Guarantor waives presentation to, demand of, payment
from and protest to the Issuer of any of the Debt Obligations and also waives
notice of protest for
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nonpayment. Each Guarantor waives notice of any Default under the Securities of
such series or the Debt Obligations. The obligations of each Guarantor hereunder
shall not be affected by:
(1) the failure of any Holder or the Trustee to assert any claim
or demand or to enforce any right or remedy against the Issuer or any
other Person hereunder, the Securities of the relevant series or any
other agreement or otherwise;
(2) any extension or renewal of any thereof;
(3) any rescission, waiver, amendment or modification of any of
the terms or provisions hereof, the Securities of the relevant series
or any other agreement;
(4) the release of any Collateral Security held by any Holder or
the Trustee for the Debt Obligations or any of them;
(5) the failure of any Holder or the Trustee to exercise any
right or remedy against any other guarantor of the Debt Obligations;
or
(6) except as set forth in Section 10.06, any change in the
ownership of such Guarantor.
(c) Each Guarantor further agrees that its Guaranty contained in
this Article 10 constitutes a guarantee of payment, performance and
compliance when due (and not a guarantee of collection) and waives any
right to require that any resort be had by any Holder or the Trustee
to any Collateral Security held for payment of the Debt Obligations.
(d) Except as expressly set forth in Sections 8.01(b), 10.02 and
10.06, the obligations of each Guarantor under this Article 10 shall
not be subject to any reduction, limitation, impairment or termination
for any reason, including any claim of waiver, release, surrender,
alteration or compromise, and shall not be subject to any defense of
setoff, counterclaim, recoupment or termination whatsoever or by
reason of the invalidity, illegality or unenforceability of the Debt
Obligations or otherwise. Without limiting the generality of the
foregoing, the obligations of each Guarantor in Article 10 shall not
be discharged, impaired or otherwise affected by the failure of any
Holder or the Trustee to assert any claim or demand or to enforce any
remedy hereunder, the Securities or any other agreement, by any waiver
or modification of any thereof, by any default, failure or delay,
willful or otherwise, in the performance of the Debt Obligations, or
by any other act, thing, omission or delay to do any other act or
thing which may or might in any manner or to any extent vary the risk
of such Guarantor or would otherwise operate as a discharge of such
Guarantor as a matter of law or equity.
(e) Each Guarantor further agrees that its Guarantee in this
Article 10 shall continue to be effective or be reinstated, as the
case may be, if at any time payment, or any part thereof, of
principal, premium, if any, and interest on any Debt Obligation is
rescinded or must
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otherwise be restored by any Holder or the Trustee upon the bankruptcy
or reorganization of the Company or the Issuer or otherwise.
(f) In furtherance of the foregoing and not in limitation of any
other right which any Holder or the Trustee has at law or in equity
against any Guarantor by virtue of this Article 10, upon the failure
of the Issuer to pay the principal, premium, if any, and interest on
any Debt Obligation when and as the same shall become due, whether at
Maturity, by acceleration, by redemption or otherwise, or to perform
or comply with any other Debt Obligation, each Guarantor hereby
promises to and shall, upon receipt of written demand by the Trustee,
forthwith pay, or cause to be paid, in cash, to the Holders or the
Trustee an amount equal to the sum of (1) the unpaid amount of such
Debt Obligations, (2) accrued and unpaid interest on such Debt
Obligations (but only to the extent not prohibited by law) and (3) all
other monetary Obligations of the Issuer to the Holders and the
Trustee.
(g) Each Guarantor agrees that, as between it, on the one hand,
and the Holders and the Trustee, on the other hand, (1) the maturity
of the Debt Obligations Guaranteed by this Article 10 may be
accelerated as provided in Article 6 for the purposes of such
Guarantor's Guaranty in this Article 10, notwithstanding any stay,
injunction or other prohibition preventing such acceleration in
respect of the Debt Obligations Guaranteed under this Article 10, and
(2) in the event of any declaration of acceleration of such Debt
Obligations as provided in Article 6, such Debt Obligations (whether
or not due and payable) shall forthwith become due and payable by such
Guarantor for the purposes of this Section 10.01.
(h) Each Guarantor also agrees to pay any and all costs and
expenses (including reasonable attorneys' fees) incurred by the
Trustee or any Holder in enforcing any rights under this Section
10.01.
SECTION 10.02 Limitation of Liability. Notwithstanding anything
contained herein to the contrary, the maximum aggregate amount of the Debt
Obligations Guaranteed hereunder by any Subsidiary Guarantor shall not exceed
the maximum amount that can be guaranteed by this Article 10 without rendering
this Indenture, as it relates to such Subsidiary Guarantor, voidable under
applicable law relating to fraudulent conveyance, fraudulent transfer or similar
laws affecting the rights of creditors generally.
SECTION 10.03 Successors and Assigns. This Article 10 shall be binding
upon each Guarantor as to a series of Securities and its successors and assigns
and shall enure to the benefit of the successors and assigns of the Trustee and
the Holders of such series and, in the event of any transfer or assignment of
rights by any such Holder or Trustee, the rights and privileges conferred upon
that party herein and in the Securities of such series shall automatically
extend to and be vested in such transferee or assignee, all subject to the terms
and conditions hereof.
SECTION 10.04 No Waiver. A failure or delay on the part of the Trustee
or the Holders of any Security of a series in exercising any right, power or
privilege under this Article 10 shall not operate as a waiver thereof. A single
or partial exercise thereof shall not preclude any other or further exercise of
any right, power or privilege. The rights, remedies and benefits of the
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Trustee and the Holders of such series herein expressly specified are cumulative
and not exclusive of any other rights, remedies or benefits which either may
have under this Article 10 at law, in equity, by statute or otherwise.
SECTION 10.05 Modification. No modification, amendment or waiver of any
provision of this Article 10, and no consent to any departure by any Guarantor
of a series from this Article 10, shall in any event be effective unless the
same shall be in writing and signed by the Trustee as to such series, and then
such waiver or consent shall be effective only in the specific instance and for
the purpose for which given. No notice to or demand on any Guarantor of such
series in any case shall entitle such Guarantor to any other or further notice
or demand in the same, similar or other circumstances.
SECTION 10.06 Release of Subsidiary Guarantor.
(a) Upon the sale or other disposition (including by way of
consolidation or merger) of a Subsidiary Guarantor of a series or a sale or
disposition of all or substantially all of the assets of a Subsidiary Guarantor
(in each case other than a sale or disposition to the Company or an Affiliate
thereof), such Subsidiary Guarantor shall be released from all of its
obligations under this Article 10 without any further action required on the
part of the Trustee or any Holder of such series. At the request and expense of
the Issuer of such series, the Trustee shall execute and deliver an appropriate
instrument evidencing such release.
(b) Upon (1) the merger or consolidation of a Subsidiary
Guarantor of a series with or into, or the dissolution, liquidation or winding
up of a Subsidiary Guarantor of such series into, a Restricted Subsidiary in
respect of such series that is or becomes a Subsidiary Guarantor of such series
or another Person that is or becomes a Guarantor of such series or (2) the
designation of such Subsidiary Guarantor of such series as an Unrestricted
Subsidiary in respect of such series as permitted by this Indenture, such
Subsidiary Guarantor of such series shall be released from all of its
obligations under this Article 10 without any further action required on the
part of the Trustee or any Holder of such series. At the request and expense of
the Issuer of such series, the Trustee shall execute and deliver an appropriate
instrument evidencing such release.
SECTION 10.07 Contribution. Each Subsidiary Guarantor of a series that
makes a payment under its Guaranty shall be entitled upon payment in full of all
Guaranteed Debt Obligations of such series to a contribution from each other
Subsidiary Guarantor of such series in an amount equal to such other Subsidiary
Guarantor's pro rata portion of such payment based on the respective net assets
of all of the Subsidiary Guarantors of such series at the time of such payment
determined in accordance with GAAP.
SECTION 10.08 Guaranty Agreement. The Company shall cause each Person
who becomes a Guarantor of a series of Securities to, at the same time, execute
and deliver to the Trustee a Guaranty Agreement pursuant to which such Person
will Guarantee payment of the Securities of such series on the same terms and
conditions as those set forth in this Article 10 (and in Section 12.12 hereof).
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ARTICLE 11
Provisions Applicable to Subordinated Securities
SECTION 11.01 Agreement to Subordinate.
(a) The Series Supplement creating a series of Securities will
state whether the series created thereby is Senior Indebtedness or is pari passu
or subordinate to other Indebtedness of the Issuer of such series. Any
Indebtedness that is subordinate to the relevant series is called "Subordinated
Indebtedness". Any Indebtedness that is pari passu to the relevant series is
called "Pari Passu Indebtedness". Any Guaranty as to Indebtedness of a series
shall have the same ranking as the Indebtedness Guaranteed thereby unless
otherwise provided in the Guaranty as to such series. Pari Passu Indebtedness
shall be treated ratably with the relevant series.
(b) The Issuer as to any series of Securities that is
subordinated in right of payment to any other security (including any other
series of Securities) (any such series, a "Subordinated Series"), and any
Guarantor or Collateral Obligor relating to such Subordinated Series, agrees,
and each Holder of such Subordinated Series by accepting a Security and any
related Guaranties or Collateral Security as to such Subordinated Series agrees,
that the Indebtedness evidenced by the Securities of such Subordinated Series
and any related Guaranties or Collateral Security will be subordinated in right
of payment, to the extent and in the manner provided in this Article 11, to the
prior payment of all Senior Indebtedness and that the subordination is for the
benefit of and enforceable by the holders of Senior Indebtedness. The Securities
of such Subordinated Series shall in all respects rank pari passu with all other
Subordinated Indebtedness of the Issuer, any related Guaranties or Collateral
Security shall in all respects rank pari passu with all other guarantees by the
Guarantors or Collateral Obligors of other Senior Indebtedness of the Issuer,
and only Indebtedness of the Issuer that is Senior Indebtedness and guarantees
of Senior Indebtedness by the Guarantors shall rank senior to the Securities and
the Guaranties or Collateral Security in accordance with the provisions set
forth herein. All provisions of this Article 11 shall be subject to Section
11.12 hereof.
SECTION 11.02 Liquidation, Dissolution, Bankruptcy. Upon any payment or
distribution of the assets of the Issuer of a Subordinated Series or the
Guarantors of a Subordinated Series to creditors upon a total or partial
liquidation or a total or partial dissolution or winding up of such Issuer or
such Guarantors or in a bankruptcy, reorganization, insolvency, receivership or
similar proceeding relating to the Issuer or the Guarantors or their respective
properties:
(1) holders of Senior Indebtedness shall be entitled to
receive payment in full of the Senior Indebtedness before Holders of
such Subordinated Series shall be entitled to receive any payment of
principal, premium, if any, and interest on or other amounts with
respect to the Securities; and
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(2) until the Senior Indebtedness is paid in full, any
distribution to which Holders of the Subordinated Series would be
entitled but for this Article 11 shall be made to holders of Senior
Indebtedness as their interests may appear, except that Holders of such
Subordinated Series may receive shares of stock and any debt securities
that are subordinated in right of payment to Senior Indebtedness to at
least the same extent as the Securities of such Subordinated Series and
do not provide for the payment of principal prior to the Stated
Maturity of all Senior Indebtedness.
SECTION 11.03 Default on Senior Indebtedness.
(a) Neither the Issuer of a Subordinated Series nor the
Guarantors of a Subordinated Series may pay the principal, premium, if any, and
interest on or other amounts with the Securities of a Subordinated Series or
make any deposit pursuant to Section 8.01 and may not repurchase, redeem or
otherwise retire any Securities of such Subordinated Series (collectively, "pay
the Subordinated Series") if (1) any Senior Indebtedness as to such series is
not paid when due or (2) any other default on Senior Indebtedness as to such
series occurs and the maturity of such Senior Indebtedness is accelerated in
accordance with its terms unless, in either case, (A) the default has been cured
or waived and any such acceleration has been rescinded or (B) such Senior
Indebtedness has been paid in full.
(b) The Issuer of a Subordinated Series and the Guarantors of a
Subordinated Series may pay the Subordinated Series without regard to the
provisions of Section 11.03(a) if the Company, such Issuer, such Guarantors and
the Trustee of such Subordinated Series receive written notice approving such
payment from the Representatives, if any, of the Senior Indebtedness with
respect to which either of the events set forth in clause (1) or (2) of Section
11.03(a) has occurred or is continuing.
(c) During the continuance of any default (other than a default
described in clause (1) or (2) of Section 11.03(a)) with respect to any
[DESIGNATED SENIOR INDEBTEDNESS] pursuant to which the maturity thereof may be
accelerated immediately without further notice (except such notice as may be
required to effect such acceleration) or the expiration of any applicable grace
periods, neither the Issuer of the Subordinated Series nor the Guarantors of the
Subordinated Series may pay the Subordinated Series for a period (a "Payment
Blockage Period") commencing upon the receipt by the Trustee (with a copy to
such Issuer and such Guarantors) of written notice (a "Blockage Notice") of such
default from the Representative, if any, of such [DESIGNATED SENIOR
INDEBTEDNESS] specifying an election to effect a Payment Blockage Period and
ending 179 days thereafter (or earlier if such Payment Blockage Period is
terminated (1) by written notice to the Trustee, such Issuer and such Guarantors
from the Person or Persons who gave such Blockage Notice, (2) by repayment in
full of such [DESIGNATED SENIOR INDEBTEDNESS] or (3) because the default giving
rise to such Blockage Notice is no longer continuing). Notwithstanding the
provisions described in the immediately preceding sentence (but subject to the
provisions contained in the first sentence of this Section), unless the holders
of such [DESIGNATED SENIOR INDEBTEDNESS] or the Representative, if any, of such
holders shall have
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accelerated the maturity of such [DESIGNATED SENIOR INDEBTEDNESS], such Issuer
and such Guarantors may resume payments on the Securities of such Subordinated
Series after such Payment Blockage Period. Not more than one Blockage Notice may
be given in any consecutive 360-day period, irrespective of the number of
Defaults with respect to [DESIGNATED SENIOR INDEBTEDNESS] during such period.
SECTION 11.04 Acceleration of Payment of Securities. If payment of the
Securities of a Subordinated Series is accelerated because of an Event of
Default, the Issuer of the Subordinated Series or the Trustee shall promptly
notify the holders of the [DESIGNATED SENIOR INDEBTEDNESS] (or their
Representatives, if any) of the acceleration. If any [DESIGNATED SENIOR
INDEBTEDNESS] is outstanding, neither such Issuer nor such Guarantors may pay
the Subordinated Series until five Business days after the Representative, if
any, of the [DESIGNATED SENIOR INDEBTEDNESS] receives notice of such
acceleration and, thereafter, may pay the Subordinated Series only if this
Article 11 otherwise permits payments at that time.
SECTION 11.05 When Distribution Must Be Paid Over. If a distribution is
made to Holders of a Subordinated Series that because of this Article 11 should
not have been made to them, the Holders of such Subordinated Series who receive
the distribution shall hold it in trust for holders of Senior Indebtedness and
pay it over to them as their interests may appear.
SECTION 11.06 Subrogation. After all Senior Indebtedness is paid in
full and until the Securities of a Subordinated Series are paid in full, Holders
of such Subordinated Series shall be subrogated to the rights of holders of
Senior Indebtedness to receive distributions applicable to Senior Indebtedness.
A distribution made under this Article 11 to holders of Senior Indebtedness
which otherwise would have been made to Holders of such Subordinated Series is
not, as between the Issuer of a Subordinated Series and Holders of such
Subordinated Series, a payment by such Issuer on Senior Indebtedness or, as
between the Guarantors of a Subordinated Series and Holders of such Subordinated
Series, a payment by such Guarantors on Senior Indebtedness.
SECTION 11.07 Relative Rights. This Article 11 defines the relative
rights of Holders of any Subordinated Series and holders of Senior Indebtedness.
Nothing in this Article 11 shall:
(1) impair, as between the Issuer of a Subordinated Series or
the Guarantors of a Subordinated Series, as the case may be, and
Holders of Securities of any Subordinated Series, the obligation of
such Issuer or such Guarantors, as the case may be, which is absolute
and unconditional, to pay principal of and interest on the Securities
of such Subordinated Series in accordance with their terms; or
(2) prevent the Trustee or any Holder of such Subordinated
Series from exercising its available remedies upon a Default, subject
to the rights of holders of Senior Indebtedness to receive
distributions otherwise payable to Holders of such Subordinated Series.
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SECTION 11.08 Subordination May Not Be Impaired by Company or
Guarantor. No right of any holder of Senior Indebtedness to enforce the
subordination of the Indebtedness evidenced by the Securities of such
Subordinated Series shall be impaired by any act or failure to act by the Issuer
of such Subordinated Series or the Guarantors of such Subordinated Series or by
the failure of either of them to comply herewith.
SECTION 11.09 Rights of Trustee and Paying Agent.
(a) Notwithstanding Section 11.03, the Trustee or any Paying
Agent as to such series may continue to make payments on the Securities of such
Subordinated Series and shall not be charged with knowledge of the existence of
facts that would prohibit the making of any such payments unless, not less than
two Business Days prior to the date of such payment, a Trust Officer of the
Trustee receives notice satisfactory to it that payments may not be made under
this Article 11. The Issuer of such series, the Registrar and any Paying Agent
as to such series, a Representative, if any, or a holder of Senior Indebtedness
may give the notice; provided, however, that, if an issue of Senior Indebtedness
has a Representative, only the Representative may give the notice.
(b) The Trustee in its individual or any other capacity may hold
Senior Indebtedness with the same rights it would have if it were not Trustee.
The Registrar and any Paying Agent may do the same with like rights. The Trustee
shall be entitled to all of the rights set forth in this Article 11 with respect
to any Senior Indebtedness which may at any time be held by it, to the same
extent as any other holder of Senior Indebtedness and nothing in Article 7 shall
deprive the Trustee of any of its rights as such holder. Nothing in this Article
11 shall apply to claims of, or payments to, the Trustee under or pursuant to
Section 7.07.
SECTION 11.10 Distribution or Notice to Representative. Whenever a
distribution is to be made or a notice given to holders of Senior Indebtedness,
the distribution may be made and the notice given to their Representative, if
any.
SECTION 11.11 Article 11 Not to Prevent Events of Default or Limit
Right to Accelerate. The failure to make a payment to Holders of a Subordinated
Series by reason of any provision in this Article 11 shall not be construed as
preventing the occurrence of a Default. Nothing in this Article 11 shall have
any effect on the right of the Holders of a Subordinated Series or the Trustee
to accelerate the maturity of the Securities of such Subordinated Series.
SECTION 11.12 Trust Moneys Not Subordinated. Notwithstanding anything
contained in this Article 11 to the contrary, payments from money or the
proceeds of U.S. Government Obligations held in trust under Article 8 by the
Trustee for the payment of principal of and interest on the Securities of a
Subordinated Series shall not be subordinated to the prior payment of any Senior
Indebtedness or subject to the restrictions set forth in this Article 11, and
none of the Holders of such Subordinated Series shall be obligated to pay over
any such amount to the Company, the Issuer of such series, the Guarantors of
such series or any holder of Senior Indebtedness of such Issuer or any other
creditor of such Issuer.
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SECTION 11.13 Trustee Entitled to Rely. Upon any payment or
distribution pursuant to this Article 11, the Trustee and the Holders of a
Subordinated Series shall be entitled to rely (1) upon any order or decree of a
court of competent jurisdiction in which any proceedings of the nature described
in Section 8.02 are pending, (2) upon a certificate of the liquidating trustee
or agent or other Person making such payment or distribution to the Trustee or
to the Holders of such Subordinated Series or (2) upon the Representatives, if
any, for the holders of Senior Indebtedness for the purpose of ascertaining the
Persons entitled to participate in such payment or distribution, the holders of
the Senior Indebtedness and other Indebtedness of the Issuer or the Guarantors,
as the case may be, the amount thereof or payable thereon, the amount or amounts
paid or distributed thereon and all other facts pertinent thereto or to this
Article 11. In the event that the Trustee determines, in good faith, that
evidence is required with respect to the right of any Person as a holder of
Senior Indebtedness to participate in any payment or distribution pursuant to
this Article 11, the Trustee may request such Person to furnish evidence to the
reasonable satisfaction of the Trustee as to the amount of Senior Indebtedness
held by such Person, the extent to which such Person is entitled to participate
in such payment or distribution and other facts pertinent to the rights of such
Person under this Article 11, and, if such evidence is not furnished, the
Trustee may defer any payment to such Person pending judicial determination as
to the right of such Person to receive such payment. The provisions of Sections
7.01 and 7.02 shall be applicable to all actions or omissions of actions by the
Trustee pursuant to this Article 11.
SECTION 11.14 Trustee to Effectuate Subordination. Each Holder of a
Subordinated Series by accepting a Security of such series authorizes and
directs the Trustee on his behalf to take such action as may be necessary or
appropriate to acknowledge or effectuate the subordination between the Holders
of such Subordinated Series and the holders of Senior Indebtedness as provided
in this Article 11 and appoints the Trustee as attorney-in-fact for any and all
such purposes.
SECTION 11.15 Trustee Not Fiduciary for Holders of Senior Indebtedness.
The Trustee shall not be deemed to owe any fiduciary duty to the holders of
Senior Indebtedness and shall not be liable to any such holders if it shall
mistakenly pay over or distribute to Holders of such Subordinated Series or the
Company, the Issuer of such series, the Guarantors of such series or any other
Person, money or assets to which any holders of Senior Indebtedness shall be
entitled by virtue of this Article 11 or otherwise.
SECTION 11.16 Reliance by Holders of Senior Indebtedness on
Subordination Provisions. Each Holder of a Subordinated Series by accepting a
Security of such Subordinated Series acknowledges and agrees that the foregoing
subordination provisions are, and are intended to be, an inducement and a
consideration to each holder of any Senior Indebtedness, whether such Senior
Indebtedness was created or acquired before or after the issuance of the
Securities, to acquire and continue to hold, or to continue to hold, such Senior
Indebtedness and such holder of Senior Indebtedness shall be deemed conclusively
to have relied on such subordination provisions in acquiring and continuing to
hold, or in continuing to hold, such Senior Indebtedness.
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ARTICLE 12
Miscellaneous
SECTION 12.01 Trust Indenture Act Controls. If any provision hereof
limits, qualifies or conflicts with another provision which is required to be
included herein by the TIA, the required provision shall control.
SECTION 12.02 Notices. Any notice or communication shall be given or
made in writing and delivered in Person or mailed by first-class mail or
overnight courier (or, for notices among the Company, any Issuer, any Guarantor,
any Collateral Obligor and the Trustee, by facsimile followed by delivery by
first-class mail) addressed as follows:
if to the Company, any Issuer, any Guarantor or any Collateral Obligor:
GrafTech International Ltd.
Brandywine West
0000 Xxxxxxx Xxxx, Xxxxx 000
Xxxxxxxxxx, Xxxxxxxx 00000
Attention of General Counsel and
Chief Financial Officer
if to the Trustee:
[---------]
[---------]
[---------] [---------]
Attention of
GrafTech Debt Securities
The Company, any Issuer, any Guarantor, any Collateral Obligor or the Trustee by
notice to the other may designate additional or different addresses for
subsequent notices or communications. Any notice or communication to a Holder of
a (1) Registered Security shall be mailed to the Holder at the Holder's address
as it appears on the relevant register of the Registrar of such series, and
shall be sufficiently given if so mailed within the time prescribed, or (2)
Bearer Security shall be sufficiently given if published at least once in an
Authorized Newspaper located in The Borough of Manhattan, the City of New York
and any place of payment specified with respect to such Bearer Security (and, if
such Bearer Securities are then listed on any securities exchange or market
outside the United States of America, in an Authorized Newspaper in such city as
the Issuer shall advise the Trustee that such securities exchange or market so
requires, if any) on a Business Day at least twice, the first such publication
to be not earlier than the earliest date and the second such publication not
later than the latest date prescribed for the giving of
75
such notice. Failure to mail or otherwise give a notice or communication to a
Holder of Registered Securities of a series or any defect in it shall not affect
its sufficiency with respect to other Holders of such series. If a notice or
communication is mailed or otherwise given in the manner provided above, it is
duly given, whether or not the addressee or recipient receives or is otherwise
made aware of it. In case by reason of the suspension of publication of any
Authorized Newspaper or Authorized Newspapers, or by reason of any other cause,
it shall be impracticable to publish any notice to Holders of Bearer Securities
of a series as provided herein, then such notification to Holders of Bearer
Securities of such series as shall be given with the approval of the Trustee
shall constitute sufficient notice to such Holders of such series for every
purpose hereunder. Failure to give a notice by publication or other
communication to a Holder of Bearer Securities of a series or any defect in
notice so published or communication so given shall not affect its sufficiency
with respect to other Holders of such series.
SECTION 12.03 Communication by Holders with Other Holders. Holders of
a series may communicate pursuant to TIA ss. 312(b) with other Holders of such
series with respect to their rights hereunder or under the Securities. The
Company, each Issuer, each Guarantor, any Trustee, any Paying Agent, any
Registrar and anyone else shall have the protection of TIA ss. 312(c).
SECTION 12.04 Certificate and Opinion as to Conditions Precedent. Upon
any request or application by the Company or any Issuer to the Trustee to take
or refrain from taking any action hereunder, the Company or such Issuer shall
furnish to the Trustee:
(1) an Officers' Certificate of the Company or the Issuer, as the
case may be, in form and substance reasonably satisfactory to the
Trustee stating that, in the opinion of the signers, all conditions
precedent, if any, provided herein relating to the proposed action
have been complied with; and
(2) an Opinion of Counsel in form and substance reasonably
satisfactory to the Trustee stating that, in the opinion of such
counsel, all such conditions precedent have been complied with.
SECTION 12.05 Statements Required in Certificate or Opinion. Each
certificate or opinion with respect to compliance with a covenant or condition
provided herein shall include:
(1) a statement that the individual making such certificate or
opinion has read such covenant or condition;
(2) a brief statement as to the nature and scope of the
examination or investigation upon which the statements or opinions
contained in such certificate or opinion are based;
(3) a statement that, in the opinion of such individual, he has
made such examination or investigation as is necessary to enable him
to express an informed opinion as to whether or not such covenant or
condition has been complied with; and
76
(4) a statement as to whether or not, in the opinion of such
individual, such covenant or condition has been complied with.
SECTION 12.06 When Securities Disregarded. In determining whether the
Holders of the required principal amount of the Securities of a series have
given any request, demand, authorization, direction, notice, consent or waiver
hereunder or have concurred in any direction, waiver or consent:
(1) Securities owned by the Issuer or any other obligor upon the
Securities or any Affiliate of the Issuer of such series or of such
other obligor, shall be disregarded and deemed not to be outstanding
(except that, for the purpose of determining whether the Trustee shall
be protected in relying on any such direction, waiver or consent, only
Securities which the Trustee knows are so owned shall be so
disregarded); provided, however, that any such Securities which have
been pledged in good faith by the Issuer of such series or other
obligor or Affiliate thereof may be regarded as outstanding if the
pledgee establishes to the satisfaction of the Trustee the pledgee's
right to act as owner with respect to such Securities and that the
pledgee is not the Issuer or other obligor upon such series or
Affiliate thereof;
(2) the principal amount of any Original Issue Discount Security
that shall be deemed to be outstanding shall be the amount of the
principal thereof that would be due and payable as of the date of the
taking of such action upon a declaration of acceleration of the
Maturity thereof; and
(3) only Securities of such series outstanding at the time (as
determined with reference to Section 2.09(a)) shall be considered in
any such determination.
SECTION 12.07 Rules by Trustee, Paying Agent and Registrar. The Trustee
may make reasonable rules for action by or a meeting of Holders. The Registrar
and any Paying Agent may make reasonable rules for their functions.
SECTION 12.08 Proof of Execution. The fact and date of the execution by
any Person of any such instrument or writing may be proved by the affidavit of a
witness to such execution or by the certificate of any notary public or other
officer authorized by law to take acknowledgments of deeds, certifying that the
individual signing such instrument or writing acknowledged to him the execution
thereof. Where such execution is by an officer, member, manager, trustee or
other Person acting for an entity, on behalf of such entity, such certificate or
affidavit shall also constitute sufficient proof of his authority. The fact and
date of the execution of any such instrument or writing, or the authority of the
Person executing the same, may also be proved in any other manner which the
Trustee deems sufficient.
SECTION 12.09 Requests; Demands; Other Matters.
(a) If the Issuer of a series of Registered Securities shall
solicit from the Holders of such Registered Securities any request, demand,
authorization, direction, notice,
77
consent, waiver or other action, such Issuer may, at its option, by resolutions
of its Board of Directors, fix in advance a record date for the determination of
Holders of Registered Securities of such series entitled to give such request,
demand, authorization, direction, notice, consent, waiver or other action, but
such Issuer shall have no obligation to do so. If such a record date is fixed,
such request, demand, authorization, direction, notice, consent, waiver or other
action may be given before or after the record date, but only the Holders of
Registered Securities of such series of record at the close of business on the
record date shall be deemed to be Holders of Registered Securities of such
series for the purposes of determining whether Holders of the requisite
proportion of Registered Securities of such series outstanding have authorized
or agreed or consented to such request, demand, authorization, direction,
notice, consent, waiver or other action, and for that purpose the Registered
Securities of such series outstanding shall be computed as of the record date;
provided that no such authorization, agreement or consent by the Holders of
Registered Securities of such series on the record date shall be deemed
effective unless it shall become effective pursuant to the provisions hereof not
later than six months after the record date.
(b) Any request, demand, authorization, direction, notice,
consent, waiver or other action provided by this Indenture to be given or taken
by Holders of Registered Securities of any series may be embodied in and
evidenced by one or more instruments of substantially similar tenor signed by
such Holders in Person or by an agent duly appointed in writing; and, except as
herein otherwise expressly provided, such action shall become effective when
such instrument or instruments are delivered to the Trustee, and, where it is
hereby expressly required, to the Issuer of such series. If any Registered
Securities of such series are denominated in currency other than that of the
United States of America, then for the purposes of determining whether the
Holders of the requisite principal amount of Registered Securities of such
series have taken any action as herein described, the principal amount of such
Registered Securities of such series shall be deemed to be that amount of U.S.
dollars that could be obtained for such principal amount on the basis of the
spot rate of exchange into U.S. dollars for the currency in which such
Securities are denominated (as evidenced to the Trustee by an Officers'
Certificate of the Issuer of such series) as of the date the taking of such
action by such Holders of such requisite principal amount is evidenced to the
Trustee. Such instrument or instruments and the action embodied therein and
evidenced thereby are herein sometimes referred to as the "act" of the Holders
of the Registered Securities of such series signing such instrument or
instruments. Proof of execution of any such instrument or of a writing
appointing any such agent shall be sufficient for any purpose hereof and
(subject to Section 7.01) conclusive in favor of the Trustee and the Issuer of
such series, if made in the manner provided in this Section 12.09(b).
(c) Any request, demand, authorization, direction, notice,
consent, waiver or other action by the Holder of any Security of a series shall
bind the Holder of every Security of such series issued upon the transfer
thereof or in exchange therefor or in lieu thereof, in respect of anything done
or suffered to be done by the Trustee or the Issuer of such series in reliance
thereon whether or not notation of such action is made upon such Security of
such series.
78
SECTION 12.10 Legal Holidays. A "Legal Holiday" is a Saturday, a Sunday
or a day on which banking institutions are authorized or obligated by law or
executive order to close or be closed in the State of New York or the Borough of
Manhattan, the City of New York. If a payment date is a Legal Holiday, payment
shall be made on the next succeeding day that is not a Legal Holiday, and no
interest shall accrue for the intervening period. If a date specified in any
Security (including any Coupon) as a Regular Record Date is a Legal Holiday, the
Regular Record Date shall not be affected.
SECTION 12.11 Severability. Any provision hereof held to be invalid,
illegal or unenforceable in any jurisdiction shall, as to such jurisdiction, be
ineffective to the extent of such invalidity, illegality or unenforceability
without affecting the validity, legality and enforceability of the remaining
provisions hereof; and the invalidity of a particular provision in a particular
jurisdiction shall not invalidate such provision in any other jurisdiction.
SECTION 12.12 Governing Law. This Indenture, the Securities and any
Guaranty and Security Document, shall be governed by, and construed in
accordance with, the laws of the State of New York but without giving effect to
applicable principles of conflicts of law to the extent that the application of
the laws of another jurisdiction would be required thereby.
SECTION 12.13 No Recourse Against Others. No director, officer,
employee or stockholder, as such, of the Company, any Issuer, any Guarantor or
any Collateral Obligor shall have any liability for any obligations of any
Issuer under any Securities or this Indenture or of any Guarantor under its
Guaranty or this Indenture or of any Collateral Obligor in respect of its
obligations under its Security Documents, or for any claim based on, in respect
of or by reason of such obligations or their creation. By accepting a Security
(including any Coupon), each Holder (including a holder of a Coupon) shall waive
and release all such liability. The waiver and release shall be part of the
consideration for the issuance of the Securities (including any Coupon
appertaining thereto).
SECTION 12.14 Successors. All agreements of the Company and the Issuer
herein or the Securities shall bind their successors. All agreements of the
Trustee herein shall bind its successors.
SECTION 12.15 Multiple Originals. The parties may sign any number of
copies hereof. 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 12.16 Table of Contents; Headings. The table of contents,
cross-reference sheet and headings of the Articles and Sections hereof 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.
79
IN WITNESS WHEREOF, the parties have caused this Indenture to be duly
executed as of the date first written above.
COMPANY:
GRAFTECH INTERNATIONAL LTD.,
by
-------------------------------
Name:
Title:
TRUSTEE:
[__________], as Trustee
by
-------------------------------
Name:
Title:
80
Schedule 1
[To be completed as necessary for each series]
[IF REQUIRED PURSUANT TO INDENTURE SECTION 2.01(b):]
Accepted:
[____________],
as Trustee,
by
-----------------------------
Authorized Signatory
81
EXHIBIT 1
[FORM OF FACE OF SECURITY]
[Global Securities Legend]
[UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE
OF [THE DEPOSITORY] TO THE ISSUER OR ITS AGENT FOR REGISTRATION OF TRANSFER,
EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF
[THE DEPOSITORY OR ITS NOMINEE] (AND ANY PAYMENT IS MADE TO [THE DEPOSITORY OR
ITS NOMINEE]), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE
BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, [THE
DEPOSITORY OR ITS NOMINEE] HAS AN INTEREST HEREIN.]
[TRANSFERS OF THIS GLOBAL SECURITY SHALL BE LIMITED TO TRANSFERS IN
WHOLE, BUT NOT IN PART, TO [THE DEPOSITORY OR ITS NOMINEE] OR TO A SUCCESSOR
THEREOF 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.]
CUSIP No. ___________
ISIN ___________
No.__________
$_______
[____] Security due [____]
[______________], a Delaware corporation, promises to pay to
[_________], or registered assigns, the principal sum of _______ Dollars on [ ],
[____].
Regular Interest Payment Dates: [______] and [______], commencing
[________].
Regular Record Dates: [______] and [______].
Additional provisions of this Security are set forth on the other side
of this Security.
Dated: [_________]
[______________],
by
--------------------------------
Name:
Title:
TRUSTEE'S CERTIFICATE OF
AUTHENTICATION
This is one of the Securities of the series designated herein described in the
within-mentioned Indenture.
[____________],
as Trustee,
by
-----------------------------
Authorized Signatory
2
[FORM OF REVERSE SIDE OF SECURITY]
[____] due [____]
THIS [DEBT SECURITY] IS ONE OF THE DULY AUTHORIZED ISSUE OF DEBENTURES,
NOTES, BONDS OR OTHER EVIDENCES OF INDEBTEDNESS (HEREINAFTER CALLED THE
"SECURITIES") OF THE ISSUER, OF THE SERIES HEREINAFTER SPECIFIED, ALL ISSUED OR
TO BE ISSUED UNDER AND PURSUANT TO THE INDENTURE REFERENCED IN SECTION 4 BELOW,
TO WHICH INDENTURE AND ANY OTHER INDENTURES SUPPLEMENTAL THERETO REFERENCE IS
HEREBY MADE FOR A STATEMENT OF THE RESPECTIVE RIGHTS, LIMITATIONS OF RIGHTS,
OBLIGATIONS, DUTIES AND IMMUNITIES THEREUNDER OF THE TRUSTEE AND ANY AGENT OF
THE TRUSTEE, ANY PAYING AGENT, THE ISSUER AND THE HOLDERS OF THE SECURITIES AND
THE TERMS UPON WHICH THE SECURITIES ARE ISSUED AND ARE TO BE AUTHENTICATED AND
DELIVERED.
THE SECURITIES MAY BE ISSUED IN ONE OR MORE SERIES, WHICH DIFFERENT
SERIES MAY BE ISSUED IN VARIOUS AGGREGATE PRINCIPAL AMOUNTS, MAY MATURE AT
DIFFERENT TIMES, MAY BEAR INTEREST, IF ANY, AT DIFFERENT RATES, MAY BE SUBJECT
TO DIFFERENT REDEMPTION PROVISIONS, IF ANY, MAY BE SUBJECT TO DIFFERENT SINKING,
PURCHASE OR ANALOGOUS FUNDS, IF ANY, MAY BE SUBJECT TO DIFFERENT COVENANTS AND
EVENTS OF DEFAULT AND MAY OTHERWISE VARY AS PROVIDED OR PERMITTED IN THE
INDENTURE. THIS [DEBT SECURITY] IS ONE OF THE SERIES OF SECURITIES OF THE ISSUER
ISSUED PURSUANT TO THE INDENTURE AND DESIGNATED AS THE [DESIGNATION OF DEBT
SECURITIES] (HEREIN CALLED THE "[DEBT SECURITIES]"), LIMITED IN AGGREGATE
PRINCIPAL AMOUNT TO $[PRINCIPAL AMOUNT].
1. Interest.
[______________], a [_________] corporation (such corporation, and its
successors and assigns under the Indenture hereinafter referred to, being herein
called the "Issuer"), promises to pay interest on the principal amount of this
Security at the rate per annum shown above. The Issuer will pay interest
semiannually in arrears on [______] and [______] of each year, commencing
[______], 20[_]. Interest on the Securities will accrue from the most recent
date to which interest has been paid or, if no interest has been paid, from
[______]. Interest will be computed on the basis of a 360-day year comprised of
twelve 30-day months. The Issuer will pay interest on overdue principal at the
rate borne by the Securities plus 1% per annum, and it will pay interest on
overdue installments of interest at such higher rate to the extent lawful.
2. Method of Payment.
The Issuer will pay interest on the Securities (except defaulted interest)
to the Persons who are holders of Securities at the close of business on the
[______] or [______] next preceding
3
the Regular Interest Payment Date even if Securities are canceled after the
Regular Record Date and on or before the Regular Interest Payment Date. Holders
must surrender Securities to a Paying Agent to collect principal payments. The
Issuer will pay principal, premium, if any, and interest in money of the United
States of America that at the time of payment is legal tender for payment of
public and private debts. Payments in respect of the Securities represented by a
Global Security (including principal, premium, if any, and interest) will be
made by wire transfer of immediately available funds to the accounts specified
by The Depository Trust Company. Payments in respect of the Securities
represented by a Definitive Security (including principal, premium, if any, and
interest) will be made by mailing a check to the registered address of each
Holder thereof; provided, however, that payments on a Definitive Security will
be made by wire transfer to a U.S. dollar account maintained by the payee with a
bank in the United States of America if such Holder elects payment by wire
transfer by giving written notice to the Trustee or the Paying Agent for this
series to such effect designating such account no later than 30 days immediately
preceding the relevant due date for payment (or such other date as the Trustee
may accept in its discretion).
Payments in respect of the Securities represented by a Bearer Security
(including principal, premium, if any, and interest, and including any Coupon
appertaining thereto) will be made at (a) the offices of the Bearer Paying Agent
or (b) the corporate trust office of the Trustee or any office or agency
designated by the Issuer in the Borough of Manhattan, the City of New York, if
(but only if) (i) amounts owing with respect to such Bearer Securities are
payable in U.S. dollars, and (ii) payment of the full amount of such principal,
premium, if any, or interest at all offices outside the United States of America
maintained for such purpose by the Issuer of the series of Securities that
includes such Bearer Securities in accordance with the Indenture is illegal or
effectively precluded by exchange controls or other similar restrictions. Other
than as set forth in the immediately preceding sentence or in the Indenture or
any indenture supplemental thereto, no payment of principal of or premium, if
any, or interest on Bearer Securities (including any Coupons appertaining
thereto) shall be made at any office or agency in the United States of America
or by check mailed to any address in the United States of America or by wire
transfer to an account maintained with a bank located in the United States of
America.
3. Paying Agent and Registrar.
Initially, [_________] (the "Trustee") will act as Paying Agent and
Registrar for any Registered Securities of this series, and [_________] will act
as Paying Agent and Registrar for any Bearer Securities of this series. The
Issuer may appoint and change any Paying Agent or Registrar without notice. The
Issuer or any of its domestically incorporated Wholly Owned Subsidiaries may act
as Paying Agent or Registrar.
4. Indenture.
The Issuer issued the Securities under an Indenture dated as of [______],
200[_] (as supplemented from time to time, the "Indenture"), among GrafTech
International Ltd., the Issuer, certain subsidiaries of GrafTech International
Ltd., and the Trustee. The terms of the Securities include those stated in the
Indenture and those made part of the Indenture by reference
4
to the Trust Indenture Act of 1939 (15 U.S.C. Sections 77aaa-77bbbb) as in
effect on the date of the Indenture (the "TIA"). Terms defined in the Indenture
and not defined herein have the meanings ascribed thereto in the Indenture. The
Securities are subject to all such terms, and Holders are referred to the
Indenture and the TIA for a statement of those terms.
The Securities are general obligations of the Issuer, except to the
extent of any limited security interest in any Collateral Security. The Issuer
shall be entitled, subject to its compliance with Section 4.03 of the Indenture,
to issue unlimited series of Securities pursuant to Section 2.01 of the
Indenture. The Indenture contains covenants that limit the ability of the
Company and its subsidiaries to incur additional indebtedness; pay dividends or
distributions on, or redeem or repurchase capital stock; make investments; issue
or sell capital stock of subsidiaries; engage in transactions with affiliates;
create liens on assets; transfer or sell assets; guarantee indebtedness;
restrict dividends or other payments of subsidiaries; allow the Issuer to engage
in certain businesses; consolidate, merge or transfer all or substantially all
of its assets and the assets of its subsidiaries; and engage in sale/leaseback
transactions. These covenants are subject to important exceptions and
qualifications.
5. Optional Redemption.
Except as set forth below, the Issuer shall not be entitled to redeem the
Securities at its option prior to [________].
On and after [___], the Issuer shall be entitled at its option to redeem
all or a portion of the Securities of this series upon not less than 30 nor more
than 60 days' notice, at the redemption prices (expressed in percentages of
principal amount on the redemption date), plus accrued and unpaid interest to
the redemption date (subject to the right of Holders of record on the relevant
Record Date to receive interest due on the relevant Interest Payment Date), if
redeemed during the 12-month period commencing on [______] of the years set
forth below:
Redemption
Period Price
----------------------------------------------------------------------
20[__] [______]%
20[__] [______]%
20[__] [______]%
20[__] and thereafter [______]%
In addition, prior to [________], the Issuer shall be entitled at its
option on one or more occasions to redeem Securities of this series in an
aggregate principal amount not to exceed [___%] of the aggregate principal
amount of the Securities of this series originally issued at a redemption price
(expressed as a percentage of principal amount) of [___%], plus accrued and
unpaid interest to the redemption date, with the net cash proceeds from one or
more Public Equity Offerings; provided, however, that (1) at least [___%] of
such aggregate principal
5
amount of the Securities of this series remains outstanding immediately after
the occurrence of each such redemption (other than Securities of this series
held, directly or indirectly, by the Issuer or its Affiliates); and (2) each
such redemption occurs within 60 days after the date of the related Public
Equity Offering.
6. Notice of Redemption.
Notice of redemption will be given at least 30 days but not more than 60
days before the redemption date to each Holder of Securities of this series to
be redeemed at its registered address. Securities in denominations larger than
$1,000 principal amount may be redeemed in part but only in whole multiples of
$1,000. If money sufficient to pay the redemption price of and accrued and
unpaid interest on all Securities of this series (or portions thereof), to be
redeemed on the redemption date is deposited with the applicable Paying Agent on
or before the redemption date and certain other conditions are satisfied, on and
after such date interest ceases to accrue on such Securities of this series (or
such portions thereof) called for redemption. [Bearer Securities of this series
surrendered for redemption must be accompanied by all Coupons maturing
subsequent to the redemption date or the amount of any such missing Coupon or
Coupons will be deducted from the redemption price, unless security or indemnity
satisfactory to the Issuer, the Trustee and any Paying Agent is furnished.]
7. Put Provisions.
Upon a Change of Control, any Holder of Securities of this series will have
the right to cause the Issuer to purchase all or any part of the Securities of
such Holder at a purchase price equal to 101% of the principal amount of the
Securities to be repurchased plus accrued and unpaid interest to the date of
purchase (subject to the right of Holders on the relevant Record Date to receive
interest due on the related Regular Interest Payment Date) as provided in, and
subject to the terms of, the Indenture.
8. Guaranty.
If so stated in the Series Supplement creating the terms of the Securities,
the payment by the Issuer of the principal of, and premium, if any, and interest
on, the Securities of this series is fully and unconditionally guaranteed on a
joint and several senior unsecured basis by each of the Guarantors, if any.
9. Collateral Security.
If so stated in the Series Supplement creating the terms of the Securities,
the Securities will be secured by Collateral Security, subject to the
limitations set forth in the Indenture or the Series Supplement.
10. Denominations; Transfer; Exchange.
6
The Securities of this series are [IN REGISTERED FORM WITHOUT COUPONS] in
denominations of $1,000 principal amount and whole multiples of $1,000. A Holder
may transfer or exchange Securities of this series in accordance with the
Indenture. The applicable 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 applicable Registrar
need not register the transfer or exchange of any Securities of this series
selected for redemption (except, in the case of a Security to be redeemed in
part, the portion of the Security not to be redeemed) or any Securities for a
period of 15 days before a selection of Securities to be redeemed or 15 days
before an Interest Payment Date.
11. Persons Deemed Owners.
The registered Holder of this Security of this series may be treated as the
owner of it for all purposes. [THE ISSUER, THE TRUSTEE AND ANY AGENT OF THE
ISSUER OR THE TRUSTEE MAY TREAT THE BEARER OF ANY BEARER SECURITY OR THE BEARER
OF ANY COUPON AS THE ABSOLUTE OWNER OF SUCH SECURITY (INCLUDING ANY COUPON
APPERTAINING THERETO) FOR THE PURPOSE OF RECEIVING PAYMENT THEREOF OR ON ACCOUNT
THEREOF AND FOR ALL OTHER PURPOSES WHATSOEVER, WHETHER OR NOT ANY PAYMENT WITH
RESPECT TO SUCH SECURITY (INCLUDING ANY COUPON APPERTAINING THERETO) SHALL BE
OVERDUE, AND NEITHER THE ISSUER, NOR THE TRUSTEE OR ANY AGENT OF THE ISSUER OR
THE TRUSTEE SHALL BE AFFECTED BY NOTICE TO THE CONTRARY.]
12. Unclaimed Money.
If money for the payment of principal or interest remains unclaimed for two
years, the Trustee or applicable Paying Agent shall pay the money back to the
Issuer at its request unless an abandoned property law designates another
Person. After any such payment, Holders entitled to the money must look only to
the Issuer and not to the Trustee for payment.
13. Discharge and Defeasance.
Subject to certain conditions, the Company, the Issuer, the Guarantors, if
any, and the Collateral Obligors, if any, at any time shall be entitled to
terminate some or all of their respective obligations under the Securities of
this series and the Guaranties and Collateral Security relating to this series
if the Issuer deposits with the Trustee money or U.S. Government Obligations for
the payment of principal, premium, if any, and interest on the Securities to
redemption or maturity, as the case may be.
14. Amendment, Waiver.
Subject to certain exceptions set forth in the Indenture, (i) the
Indenture and the Securities of this series may be amended with the written
consent of the Holders of at least a majority in principal amount outstanding of
the Securities of such series and (ii) any default or noncompliance with any
provision may be waived with the written consent of the Holders of a majority in
principal amount outstanding of the Securities of this series. Subject to
certain exceptions set forth in the Indenture, without the consent of any Holder
of this series, the
7
Company, the Issuer, the Guarantors, if any, the Collateral Obligors, if any,
and the Trustee shall be entitled to amend the Indenture or the Securities of
this series (together with any Collateral Security relating to the Securities of
this series) to cure any ambiguity, omission, defect or inconsistency, or to
comply with Article 5 of the Indenture, or to provide for uncertificated
Securities of this series in addition to or in place of certificated Securities,
or to add Guarantees or Collateral Security with respect to the Securities,
including Subsidiary Guaranties, or to secure the Securities of this series, or
to add Events of Default for the benefit of Holders of Securities of this series
or covenants or otherwise add to the rights of of Holders of Securities of this
series, or to surrender rights or powers conferred upon the Company, the Issuer,
any Guarantor or any Collateral Obligor, or to comply with any requirements of
the SEC in connection with qualifying or maintaining the qualification of the
Indenture under the TIA, or to make any change that does not adversely affect
the rights of Holders of Securities of this series.
15. Defaults and Remedies.
Under the Indenture, Events of Default include (i) default for 30 days in
payment of interest on the Securities of this series; (ii) default in payment of
principal on the Securities of this series when the same becomes due at the
Stated Maturity, upon redemption pursuant to paragraph 5 of the Securities of
this series, upon declaration of acceleration or otherwise, or failure by the
Issuer to purchase Securities of this series when required; (iii) failure by the
Company, the Issuer, any Guarantor or any Collateral Obligor to comply with
other agreements in the Indenture or the Securities of this series, in certain
cases subject to notice and lapse of time; (iv) certain accelerations (including
failure to pay within any grace period after final maturity) of other
Indebtedness of the Issuer, any Significant Subsidiary, any Guarantor or any
Collateral Obligor if the amount accelerated (or so unpaid) exceeds $10.0
million; (v) certain events of bankruptcy or insolvency with respect to the
Issuer, any Significant Subsidiary, any Guarantor or any Collateral Obligor;
(vi) certain judgments or decrees for the payment of money in excess of $10.0
million; (vii) certain defaults with respect to Guaranties or Security
Documents; (viii) certain defaults relating to the Collateral Security; and (ix)
certain defaults in payment of any sinking fund or purchase fund or analogous
obligation when due. If an Event of Default occurs and is continuing as to
Securities of this series, the Trustee or the Holders of at least 25% in
principal amount of the Securities of this series may declare all of the
Securities of this series to be due and payable immediately. Certain events of
bankruptcy or insolvency are Events of Default which will result in the
Securities of this series being due and payable immediately upon the occurrence
of such Events of Default.
Holders may not enforce the Indenture or the Securities of this series
except as provided in the Indenture. The Trustee may refuse to enforce the
Indenture or the Securities of this series unless it receives indemnity or
security reasonably satisfactory to it. Subject to certain limitations, Holders
of a majority in principal amount of the Securities of this series may direct
the Trustee in its exercise of any trust or power. The Trustee may withhold from
Holders of this series notice of any continuing Default (except a Default in
payment of principal or interest on any Security) if it determines that
withholding notice is in the interest of the Holders of this series.
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16. Trustee Dealings with the Company.
Subject to certain limitations imposed by the TIA and the Indenture, the
Trustee under the Indenture, in its individual or any other capacity, may become
the owner or pledgee of Securities of this series and may otherwise deal with
the Company or its Affiliates with the same rights it would have if it were not
Trustee.
17. No Recourse Against Others.
A director, officer, employee or stockholder, as such, of the Company, the
Issuer, any Guarantor, any Collateral Obligor or the Trustee shall not have any
liability for any obligations of the Company, the Issuer, any Guarantor or any
Collateral Obligor under the Securities of this series or the Indenture or for
any claim based on, in respect of or by reason of such obligations or their
creation. By accepting a Security, each Holder waives and releases all such
liability. The waiver and release are part of the consideration for the issue of
the Securities of this series.
18. Authentication.
This Security shall not be valid until an authorized signatory of the
Trustee (or an authenticating agent) manually signs the certificate of
authentication on the other side of this Security.
19. Abbreviations.
Customary abbreviations may be used in the name of a Holder or an assignee,
such as TEN COM (=tenants in common), TEN ENT (=tenants by the entireties), JT
TEN (=joint tenants with rights of survivorship and not as tenants in common),
CUST (=custodian), and U/G/M/A (=Uniform Gifts to Minors Act).
20. CUSIP Numbers and ISINs.
The Issuer has caused CUSIP numbers and corresponding ISINs to be printed
on the Securities of this series and has directed the Trustee to use CUSIP
numbers and corresponding ISINs in notices of redemption as a convenience to
Holders. No representation is made as to the accuracy of such numbers either as
printed on the Securities or as contained in any notice of redemption and
reliance may be placed only on the other identification numbers placed thereon.
21. Governing Law.
THIS SECURITY SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE
LAWS OF THE STATE OF NEW YORK BUT WITHOUT GIVING EFFECT TO APPLICABLE PRINCIPLES
OF CONFLICTS OF LAW TO THE EXTENT THAT THE APPLICATION OF THE LAWS OF ANOTHER
JURISDICTION WOULD BE REQUIRED THEREBY.
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The Issuer will furnish to any Holder upon written request and without
charge to the Holder a copy of the Indenture which has in it the text of this
Security in larger type. Requests may be made to:
GrafTech International Ltd.
Brandywine West
0000 Xxxxxxx Xxxx, Xxxxx 000
Xxxxxxxxxx, Xxxxxxxx 00000
Attention: Director of Investor Relations
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ASSIGNMENT FORM
To assign this Security, fill in the form below:
I or we assign and transfer this Security to
(Print or type assignee's name, address and zip code)
(Insert assignee's soc. sec. or tax I.D. No.)
and irrevocably appoint agent to transfer this Security on the books of the
Issuer. The agent may substitute another to act for him.
______________________________________________________________________________
Date: --------------- Your Signature: ---------------------
Sign exactly as your name appears on the other side of this Security.
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[TO BE ATTACHED TO GLOBAL SECURITIES]
SCHEDULE OF INCREASES OR DECREASES IN GLOBAL SECURITY
The following increases or decreases in this Global Security have been
made:
Signature of
authorized
Principal amount of officer of
Amount of decrease in Amount of increase in this Global Security Trustee or
principal amount of principal amount of following such Securities
Date of Exchange this Global Security this Global Security decrease or increase Custodian
---------------- -------------------- -------------------- -------------------- ---------
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[TO BE ATTACHED TO SECURITIES, IF APPLICABLE]
OPTION OF HOLDER TO ELECT PURCHASE
If you want to elect to have this Security purchased by the Issuer
pursuant to Section [_________] of the Indenture, check the box:
If you want to elect to have only part of this Security purchased by
the Issuer pursuant to Section [_________] of the Indenture, state the amount in
principal amount: $
Date: _______________ Your Signature:
(Sign exactly as your
name appears on the
other side of this Security.)
Signature Guarantee: ----------------------------------------
(Signature must be guaranteed)
Signatures must be guaranteed by an "eligible guarantor institution"
meeting the requirements of the Registrar, which requirements may include
membership or participation in the Security Transfer Agent Medallion Program
("STAMP") or such other "signature guarantee program" as may be determined by
the Registrar in addition to, or in substitution for, STAMP, all in accordance
with the Securities Exchange Act of 1934, as amended.
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