EXECUTION COPY
Exhibit 4.1
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9 1/4% Senior Notes due 2008
Dated as of June 18, ▇▇▇▇
▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Inc.,
as Issuer,
Millennium Chemicals Inc.,
as Guarantor,
and
The Bank of New York,
as Trustee
INDENTURE
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TABLE OF CONTENTS
ARTICLE 1
Definitions and Incorporation by Reference
SECTION 1.01. Definitions...............................................................................1
SECTION 1.02. Other Definitions........................................................................24
SECTION 1.03. Incorporation by Reference of Trust Indenture Act........................................25
SECTION 1.04. Rules of Construction....................................................................26
ARTICLE 2
The Securities
SECTION 2.01. Amount of Securities; Issuable in Series.................................................26
SECTION 2.02. Form and Dating..........................................................................27
SECTION 2.03. Execution and Authentication.............................................................28
SECTION 2.04. Registrar and Paying Agent...............................................................28
SECTION 2.05. Paying Agent to Hold Money in Trust......................................................29
SECTION 2.06. Holder Lists.............................................................................29
SECTION 2.07. Transfer and Exchange....................................................................30
SECTION 2.08. Replacement Securities...................................................................30
SECTION 2.09. Outstanding Securities...................................................................31
SECTION 2.10. Temporary Securities.....................................................................31
SECTION 2.11. Cancelation..............................................................................32
SECTION 2.12. Defaulted Interest.......................................................................32
SECTION 2.13. CUSIP and ISIN Numbers...................................................................32
ARTICLE 3
Redemption
SECTION 3.01. Notices to Trustee.......................................................................32
SECTION 3.02. Selection of Securities To Be Redeemed...................................................33
SECTION 3.03. Notice of Redemption.....................................................................33
SECTION 3.04. Effect of Notice of Redemption...........................................................34
SECTION 3.05. Deposit of Redemption Price..............................................................34
SECTION 3.06. Securities Redeemed in Part..............................................................34
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ARTICLE 4
Covenants
SECTION 4.01. Payment of Securities....................................................................35
SECTION 4.02. SEC Reports..............................................................................35
SECTION 4.03. Limitation on Indebtedness...............................................................35
SECTION 4.04. Limitation on Restricted Payments........................................................39
SECTION 4.05. Limitation on Restrictions on Distributions from Restricted Subsidiaries.................43
SECTION 4.06. Limitation on Sales of Assets and Subsidiary Stock.......................................45
SECTION 4.07. Limitation on Transactions with Affiliates...............................................48
SECTION 4.08. Change of Control........................................................................49
SECTION 4.09. Compliance Certificate...................................................................51
SECTION 4.10. Further Instruments and Acts.............................................................51
SECTION 4.11. Additional Amounts.......................................................................51
SECTION 4.12. Limitation on Lines of Business..........................................................53
SECTION 4.13. Limitation on the Sale or Issuance of Capital Stock of Restricted
Subsidiaries.............................................................................53
SECTION 4.14. Limitation on Liens......................................................................54
SECTION 4.15. Limitation on Sale/Leaseback Transactions................................................55
SECTION 4.16. Corporate Existence......................................................................56
SECTION 4.17. Payment of Taxes and Other Claims........................................................56
SECTION 4.18. Maintenance of Properties................................................................57
SECTION 4.19. Fall-Away of Covenants...................................................................57
ARTICLE 5
Successor Company
SECTION 5.01. When Issuer May Merge or Transfer Assets.................................................58
ARTICLE 6
Defaults and Remedies
SECTION 6.01. Events of Default........................................................................60
SECTION 6.02. Acceleration.............................................................................62
SECTION 6.03. Other Remedies...........................................................................62
SECTION 6.04. Waiver of Past Defaults..................................................................63
SECTION 6.05. Control by Majority......................................................................63
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SECTION 6.06. Limitation on Suits......................................................................63
SECTION 6.07. Rights of Holders to Receive Payment.....................................................64
SECTION 6.08. Collection Suit by Trustee...............................................................64
SECTION 6.09. Trustee May File Proofs of Claim.........................................................64
SECTION 6.10. Priorities...............................................................................64
SECTION 6.11. Undertaking for Costs....................................................................65
SECTION 6.12. Waiver of Stay or Extension Laws.........................................................65
ARTICLE 7
Trustee
SECTION 7.01. Duties of Trustee........................................................................65
SECTION 7.02. Rights of Trustee........................................................................66
SECTION 7.03. Individual Rights of Trustee.............................................................68
SECTION 7.04. Trustee's Disclaimer.....................................................................68
SECTION 7.05. Notice of Defaults.......................................................................68
SECTION 7.06. Reports by Trustee to Holders............................................................69
SECTION 7.07. Compensation and Indemnity...............................................................69
SECTION 7.08. Replacement of Trustee...................................................................70
SECTION 7.09. Successor Trustee by Merger..............................................................71
SECTION 7.10. Eligibility; Disqualification............................................................71
SECTION 7.11. Preferential Collection of Claims Against Issuer.........................................71
ARTICLE 8
Discharge of Indenture; Defeasance
SECTION 8.01. Discharge of Liability on Securities; Defeasance.........................................72
SECTION 8.02. Conditions to Defeasance.................................................................73
SECTION 8.03. Application of Trust Money...............................................................74
SECTION 8.04. Repayment to Issuer......................................................................74
SECTION 8.05. Indemnity for Government Obligations.....................................................75
SECTION 8.06. Reinstatement............................................................................75
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ARTICLE 9
Amendments
SECTION 9.01. Without Consent of Holders...............................................................75
SECTION 9.02. With Consent of Holders..................................................................76
SECTION 9.03. Compliance with Trust Indenture Act......................................................77
SECTION 9.04. Revocation and Effect of Consents and Waivers............................................77
SECTION 9.05. Notation on or Exchange of Securities....................................................78
SECTION 9.06. Trustee to Sign Amendments...............................................................78
ARTICLE 10
Note Guarantee
SECTION 10.01. Note Guarantee..........................................................................78
SECTION 10.02. Limitation on Liability.................................................................80
SECTION 10.03. Successors and Assigns..................................................................81
SECTION 10.04. No Waiver...............................................................................81
SECTION 10.05. Modification............................................................................81
SECTION 10.06. Execution and Non-Impairment............................................................82
ARTICLE 11
Miscellaneous
SECTION 11.01. Trust Indenture Act Controls............................................................82
SECTION 11.02. Notices.................................................................................82
SECTION 11.03. Communication by Holders with Other Holders.............................................83
SECTION 11.04. Certificate and Opinion as to Conditions Precedent......................................83
SECTION 11.05. Statements Required in Certificate or Opinion...........................................83
SECTION 11.06. When Securities Disregarded.............................................................84
SECTION 11.07. Rules by Trustee, Paying Agent and Registrar............................................84
SECTION 11.08. Legal Holidays..........................................................................84
SECTION 11.09. GOVERNING LAW...........................................................................84
SECTION 11.10. No Recourse Against Others..............................................................84
SECTION 11.11. Successors..............................................................................84
SECTION 11.12. Multiple Originals......................................................................85
SECTION 11.13. Table of Contents; Headings.............................................................85
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Appendix A - Provisions Relating to Original Securities, Additional Securities,
Private Exchange Securities and Exchange Securities
Exhibit A - Form of Initial Security
Exhibit B - Form of Exchange Security
Exhibit C - Form of Transferee Letter of Representation
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Cross Reference Table Showing Reflection in Indenture of Certain Provisions
of Trust Indenture Act of 1939,
as amended by the Trust Indenture Reform Act of 1990*
----------------------
Reflected in Indenture
----------------------
Trust Indenture
Act Section Indenture Section
310 (a)(1)............................................ 7.10
(a)(2)............................................ 7.10
(a)(3)............................................ N.A.
(a)(4)............................................ N.A.
(a)(5)............................................ 7.08; 7.10
(b) .............................................. 7.08; 7.10
(c) .............................................. N.A.
311 (a) .............................................. 7.11
(b) .............................................. 7.11
(c) .............................................. N.A
312 (a) .............................................. 2.06
(b) .............................................. 11.03
(c) .............................................. 11.03
313 (a) .............................................. 7.06
(b) (1)............................................ 7.06
(b) (2).......................................... .. 7.06
(c) .............................................. 7.06; 11.02
(d) .............................................. 7.06
314 (a) .............................................. 4.02; 4.09; 11.02
(b) .............................................. N.A.
(c) (1)............................................ 11.04
(c) (2)............................................ 11.04
(c) (3)............................................ N.A.
(d) .............................................. N.A.
(e) .............................................. 11.05
(f) .............................................. N.A.
315 (a) .............................................. 7.02(b)
(b) .............................................. 7.05; 11.02
(c) .............................................. 7.01(a)
(d) .............................................. 7.01(c)
(e) .............................................. 6.11
316 (a) .............................................. 11.06
(a)(1)(A).......................................... 6.05
(a)(1)(B).......................................... 6.04
(a)(2)............................................. N.A.
(b) .............................................. 6.07
(c) .............................................. 9.04
317 (a)(1)............................................. 6.08
(a)(2)............................................. 6.09
(b) .............................................. 2.05
318 (a) .............................................. 11.01
(b) .............................................. N.A.
(c) .............................................. 11.01
N.A. means not applicable.
* This Cross Reference Table shall not, for any
purpose, be deemed to be part of the
Indenture.
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INDENTURE dated as of June 18, 2001, among
MILLENNIUM AMERICA INC., a Delaware corporation (the
"Issuer"), MILLENNIUM CHEMICALS INC., a Delaware
corporation and the indirect parent company of the
Issuer (the "Company"), and THE BANK OF NEW YORK, a
New York banking corporation, as trustee (the
"Trustee").
Each party agrees as follows for the benefit of the other
parties and for the equal and ratable benefit of the Holders of (a) the Issuer's
9 1/4% Senior Notes due 2008 issued on the date hereof (the "Original
Securities"), (b) any Additional Securities (as defined herein) that may be
issued on any Issue Date (all such Securities in clauses (a) and (b) being
referred to collectively as the "Initial Securities"), (c) if and when issued as
provided in a Registration Agreement (as defined in Appendix A hereto (the
"Appendix")), the Issuer's 9 1/4% Senior Notes due 2008 issued in a Registered
Exchange Offer in exchange for any Initial Securities (the "Exchange
Securities") and (d) if and when issued as provided in a Registration Agreement,
the Private Exchange Securities (together with the Initial Securities and any
Exchange Securities issued hereunder, the "Securities") issued in a Private
Exchange. On the date hereof, $275,000,000 in aggregate principal amount of
Securities will be initially issued. Subject to the conditions and in compliance
with the covenants set forth herein, the Issuer may issue an unlimited aggregate
principal amount of Additional Securities.
ARTICLE 1
Definitions and Incorporation by Reference
SECTION 1.01. Definitions.
"Additional Assets" means (a) any property or assets (other
than Indebtedness and Capital Stock) to be used by the Company or a Restricted
Subsidiary in a Permitted Business; (b) the Capital Stock of a Person that
becomes a Restricted Subsidiary as a result of the acquisition of such Capital
Stock by the Company or another Restricted Subsidiary; or (c) Capital Stock
constituting a minority interest in any Person that at such time is a Restricted
Subsidiary; provided, however, that any such Restricted Subsidiary described in
clauses (b) or (c) above is primarily engaged in a Permitted Business.
"Additional Securities" means any 9 1/4% Senior Notes due 2008
issued under the terms of this Indenture subsequent to the Closing Date.
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"Affiliate" of any specified Person means any other Person,
directly or indirectly, controlling or controlled by or under direct or indirect
common control with such specified Person. For the purposes of this definition,
"control" when used with respect to any Person means the power to direct the
management and policies of such Person, directly or indirectly, whether through
the ownership of voting securities, by contract or otherwise; and the terms
"controlling" and "controlled" have meanings correlative to the foregoing. For
purposes of Sections 4.06 and 4.07 only, "Affiliate" shall also mean any
beneficial owner of shares representing 10% or more of the total voting power of
the Voting Stock (on a fully diluted basis) of the Company or the Issuer or of
rights or warrants to purchase such Voting Stock (whether or not currently
exercisable) and any Person who would be an Affiliate of any such beneficial
owner pursuant to the first sentence hereof.
"Asset Contribution Agreement" means the asset contribution
agreement dated as of December 1, 1997, between Millennium Petrochemicals Inc.,
Millennium Petrochemicals LP LLC and Equistar Chemicals, LP, as amended to the
date hereof.
"Asset Disposition" means any sale, lease, transfer or other
disposition (or series of related sales, leases, transfers or dispositions) by
the Company or any Restricted Subsidiary, including any disposition by means of
a merger, consolidation or similar transaction (each referred to for the
purposes of this definition as a "disposition"), of (a) any shares of Capital
Stock of a Restricted Subsidiary (other than directors' qualifying shares or
shares required by applicable law to be held by a Person other than the Company
or a Restricted Subsidiary), (b) all or substantially all the assets of any
division or line of business of the Company or any Restricted Subsidiary or (c)
any other assets of the Company or any Restricted Subsidiary outside of the
ordinary course of business of the Company or such Restricted Subsidiary (other
than, in the case of (a), (b) and (c) above, (i) a disposition by a Restricted
Subsidiary to the Company or by the Company or a Restricted Subsidiary to a
Restricted Subsidiary, (ii) for purposes of Section 4.06 only, a disposition
that constitutes a Restricted Payment subject to Section 4.04, (iii) a
disposition of assets with a Fair Market Value of less than $100,000), (iv) a
disposition of assets in connection with a Sale/Leaseback Transaction subject to
Section 4.15, (v) a sale, assignment or other transfer of accounts receivables
and related assets of the type specified in the definition of "Qualified
Receivables Transaction" to a Receivables Entity, (vi) a sale, assignment or
other transfer of accounts receivables and related assets of the type specified
in the definition of "Qualified Receivables Transaction" (or a fractional
undivided interest therein) by a Receivables Entity in a Qualified Receivables
Transaction, (vii) a disposition of obsolete or worn out equipment or assets
that are no longer useful in the conduct of the business of the Company and its
Restricted Subsidiaries, (viii) the disposition of all or substantially all of
the assets of the Issuer or the Company in a manner permitted pursuant to
Section 5.01 and (ix) an issuance of Capital Stock by a Restricted Subsidiary to
the Company or to another Restricted Subsidiary).
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"Average Life" means, as of the date of determination, with
respect to any Indebtedness or Preferred Stock, the quotient obtained by
dividing (a) the sum of the products of the numbers of years from the date of
determination to the dates of each successive scheduled principal payment of
such Indebtedness or scheduled redemption or similar payment with respect to
such Preferred Stock multiplied by the amount of such payment by (b) the sum of
all such payments.
"Bank Indebtedness" means any and all Indebtedness payable
under or in respect of the Credit Agreement and any refinancings (and successive
refinancings) with respect thereto, each as amended from time to time, including
principal, premium (if any), reimbursement obligations and guarantees in respect
thereof. It is understood and agreed that a refinancing (and successive
refinancings) in respect of the Credit Agreement may be Incurred from time to
time after termination of the Credit Agreement.
"Board of Directors" means the Board of Directors of the
Company or any committee thereof duly authorized to act on behalf of the Board
of Directors of the Company. "Board of Directors" of the Issuer has a
correlative meaning.
"Business Day" means each day which is not a Legal Holiday.
"Capital Stock" of any Person means any and all shares,
interests, rights to purchase, warrants, options, participations or other
equivalents (however designated) of corporate stock or other equity
participations, including Preferred Stock and partnership or membership
interests, whether general or limited of such Person, but excluding any debt
securities convertible into such equity.
"Capitalized Lease Obligations" means an obligation that is
required to be classified and accounted for as a capitalized lease for financial
reporting purposes in accordance with GAAP, and the amount of Indebtedness
represented by such obligation shall be the capitalized amount of such
obligation determined in accordance with GAAP; and the Stated Maturity thereof
shall be the date of the last payment of rent or any other amount due under such
lease prior to the first date upon which such lease may be prepaid by the lessee
without payment of a penalty.
"Change of Control" means the occurrence of any of the
following events:
(a) any "person" (as such term is used in Sections 13(d) and
14(d) of the Exchange Act), other than the Company or a Subsidiary of
the Company, 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 (a) such person shall be deemed to have "beneficial
ownership" of all shares that any such person has the right to acquire,
whether such right is exercisable immediately or only after the passage
of time), directly or indirectly, of more than 50% of the total voting
power
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of the Voting Stock of the Issuer or the Company (for the purpose of
this clause (a), such person shall be deemed to beneficially own any
Voting Stock of an entity held by any other entity (the "parent
entity"), if such person is the beneficial owner (as defined in this
clause (a)), directly or indirectly, of more than 50% of the voting
power of the Voting Stock of such parent entity); or
(b) during any period of two consecutive years, individuals
who at the beginning of such period constituted the board of directors
of the Issuer or the Company, as the case may be (together with any new
directors whose election by such board of directors of the Issuer or
the Company, as the case may be, or whose nomination for election by
the shareholders of the Issuer or the Company, as the case may be, was
approved by a vote of 66-2/3% of the directors of the Issuer or the
Company, as the case may be, then still in office who were either
directors at the beginning of such period 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 Issuer
or the Company, as the case may be, then in office; or
(c) the adoption of a plan relating to the liquidation or
dissolution of the Issuer or the Company; or
(d) the merger or consolidation of the Issuer or the Company
with or into another Person or the merger of another Person with or
into the Issuer or the Company, or the sale of all or substantially all
the assets of the Issuer or the Company to another Person, unless, in
the case of any such merger or consolidation, the securities of the
Issuer or the Company, as the case may be, that are outstanding
immediately prior to such transaction and which represent 100% of the
aggregate voting power of the Voting Stock of the Issuer or the
Company, as the case may be, constitute or are changed into or
exchanged for securities that constitute, in addition to any other
consideration, securities of the surviving Person that represent
immediately after such transaction at least a majority of the aggregate
voting power of the Voting Stock of the surviving Person or transferee.
For purposes of this clause (d), (i) the sale by the Company or the
Issuer of the equity interests in Millennium Petrochemicals Inc., the
equity interests in the limited liability companies which directly or
indirectly own the Company's equity interests in Equistar, and/or the
Company's equity interests in Equistar will be deemed not to constitute
a sale of all or substantially all of the assets of the Issuer or the
Company if any such sale consists of Net Tangible Assets constituting
331/3% or less of the Consolidated Net Tangible Assets of the Company
as of the date of the most recent publicly available consolidated
balance sheet of the Company and its Subsidiaries and (ii) it shall not
be a Change of Control if the Issuer or the Company merges into the
other or into a Restricted Subsidiary, or consolidates with or into the
other or a Restricted Subsidiary, or sells all or
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substantially all of its assets to the other or a Restricted Subsidiary
for internal restructuring purposes or in combination with another
transaction which does not constitute a Change of Control.
"Closing Date" means the date of this Indenture.
"Code" means the Internal Revenue Code of 1986, as amended.
"Commodity Agreement" means, with respect to any Person, any
agreement for the protection against fluctuations in commodity prices or other
similar agreement or arrangement to which such Person is a party or of which it
is a beneficiary.
"Consolidated Coverage Ratio" as of any date of determination
means the ratio of (a) the aggregate amount of EBITDA for the period of the most
recent four consecutive fiscal quarters for which financial statements are
publicly available to (b) Consolidated Interest Expense for such four fiscal
quarters; provided, however, that (i) if the Company or any Restricted
Subsidiary has Incurred any Indebtedness since the beginning of such period that
remains outstanding on such date of determination or if the transaction giving
rise to the need to calculate the Consolidated Coverage Ratio is an Incurrence
of Indebtedness, EBITDA and Consolidated Interest Expense for such period shall
be calculated after giving effect on a pro forma basis to such Indebtedness as
if such Indebtedness had been Incurred on the first day of such period and the
discharge of any other Indebtedness repaid, repurchased, defeased or otherwise
discharged with the proceeds of such new Indebtedness as if such discharge had
occurred on the first day of such period, (ii) if the Company or any Restricted
Subsidiary has repaid, repurchased, defeased or otherwise discharged any
Indebtedness since the beginning of such period or if any Indebtedness is to be
repaid, repurchased, defeased or otherwise discharged (in each case other than
Indebtedness Incurred under any revolving credit facility unless such
Indebtedness has been permanently repaid and has not been replaced) on the date
of the transaction giving rise to the need to calculate the Consolidated
Coverage Ratio, EBITDA and Consolidated Interest Expense for such period shall
be calculated on a pro forma basis as if such discharge had occurred on the
first day of such period and as if the Company or such Restricted Subsidiary has
not earned the interest income actually earned during such period in respect of
cash or Temporary Cash Investments used to repay, repurchase, defease or
otherwise discharge such Indebtedness, (iii) if since the beginning of such
period the Company or any Restricted Subsidiary shall have made any Asset
Disposition, the EBITDA for such period shall be reduced by an amount equal to
the EBITDA (if positive) directly attributable to the assets that are the
subject of such Asset Disposition for such period or increased by an amount
equal to the EBITDA (if negative) directly attributable thereto for such period
and Consolidated Interest Expense for such period shall be reduced by an amount
equal to the Consolidated Interest Expense directly attributable to any
Indebtedness of the Company or any Restricted Subsidiary repaid, repurchased,
defeased or otherwise discharged with respect to the Company and its
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continuing Restricted Subsidiaries in connection with such Asset Disposition for
such period (or, if the Capital Stock of any Restricted Subsidiary is sold, the
Consolidated Interest Expense for such period directly attributable to the
Indebtedness of such Restricted Subsidiary to the extent the Company and its
continuing Restricted Subsidiaries are no longer liable for such Indebtedness
after such sale), (iv) if since the beginning of such period the Company or any
Restricted Subsidiary (by merger or otherwise) shall have made an Investment in
any Restricted Subsidiary (or any Person that becomes a Restricted Subsidiary)
or an acquisition of assets, including any acquisition of assets occurring in
connection with a transaction causing a calculation to be made hereunder, which
constitutes all or substantially all of an operating unit of a business, EBITDA
and Consolidated Interest Expense for such period shall be calculated after
giving pro forma effect thereto (including the Incurrence of any Indebtedness)
as if such Investment or acquisition occurred on the first day of such period
and (v) if since the beginning of such period any Person (that subsequently
became a Restricted Subsidiary or was merged with or into the Company or any
Restricted Subsidiary since the beginning of such period) shall have made any
Asset Disposition or any Investment or acquisition of assets that would have
required an adjustment pursuant to clause (iii) or (iv) above if made by the
Company or a Restricted Subsidiary during such period, EBITDA and Consolidated
Interest Expense for such period shall be calculated after giving pro forma
effect thereto as if such Asset Disposition, Investment or acquisition of assets
occurred on the first day of such period. For purposes of this definition,
whenever pro forma effect is to be given to an acquisition of assets or other
Investment, the amount of income or earnings relating thereto and the amount of
Consolidated Interest Expense associated with any Indebtedness Incurred in
connection therewith, the pro forma calculations shall be determined in good
faith by a responsible financial or accounting Officer of the Company and shall
comply with the requirements of Rule 11-02 of Regulation S-X promulgated by the
SEC. If any Indebtedness bears a floating rate of interest and is being given
pro forma effect, the interest expense on such Indebtedness shall be calculated
as if the rate in effect on the date of determination had been the applicable
rate for the entire period (taking into account any Interest Rate Agreement
applicable to such Indebtedness if such Interest Rate Agreement has a remaining
term as at the date of determination in excess of 12 months).
"Consolidated Current Liabilities" as of the date of
determination means the aggregate amount of liabilities of the Company and its
consolidated Restricted Subsidiaries which may properly be classified as current
liabilities (including taxes accrued as estimated), on a consolidated basis,
after eliminating (a) all intercompany items between the Company and any
Restricted Subsidiary and (b) all current maturities of long-term Indebtedness,
all as determined in accordance with GAAP consistently applied.
"Consolidated Interest Expense" means, for any period, the
total interest expense of the Company and its consolidated Restricted
Subsidiaries, plus, to the extent Incurred by the Company and its consolidated
Subsidiaries in such period but not
7
included in such interest expense, without duplication (a) interest expense
attributable to Capitalized Lease Obligations, (b) amortization of debt discount
and debt issuance costs, (c) capitalized interest, (d) noncash interest expense,
(e) commissions, discounts and other fees and charges attributable to letters of
credit and bankers' acceptance financing, (f) interest accruing on any
Indebtedness of any other Person to the extent such Indebtedness is Guaranteed
by the Company or any Restricted Subsidiary (other than any interest in respect
of Indebtedness of Equistar in an aggregate principal amount of $750,000,000
that is Guaranteed on a limited basis by the Issuer on the Closing Date (or any
Guarantee on no less favorable terms that replaces such Guarantee) for so long
as Equistar is not a Subsidiary of the Company); (g) net costs associated with
Interest Rate Agreements (including amortization of fees), (h) dividends in
respect of all Disqualified Stock of the Company and all Preferred Stock of any
of the Restricted Subsidiaries of the Company, to the extent held by Persons
other than the Company or a Wholly Owned Subsidiary, (i) interest Incurred in
connection with investments in discontinued operations, and (j) the cash
contributions to any employee stock ownership plan or similar trust to the
extent such contributions are used by such plan or trust to pay interest or fees
to any Person (other than the Company) in connection with Indebtedness Incurred
by such plan or trust. For purposes of the foregoing, Consolidated Interest
Expense will be determined after giving effect to any net payments made or
received by the Company and its Restricted Subsidiaries with respect to Interest
Rate Agreements.
"Consolidated Net Income" means, for any period, the net
income (loss) of the Company and its consolidated Subsidiaries for such period;
provided, however, that there shall not be included in such Consolidated Net
Income:
(a) any net income (loss) of any Person (other than the
Company) if such Person is not a Restricted Subsidiary, except that (i)
subject to the limitations contained in clauses (d) and (g) below, the
Company's equity in the net income of any such Person for such period
shall be included in such Consolidated Net Income up to the aggregate
amount of cash actually distributed by such Person during such period
to the Company or a Restricted Subsidiary as a dividend or other
distribution (subject, in the case of a dividend or other distribution
made to a Restricted Subsidiary, to the limitations contained in clause
(c) below) and (ii) (A) the Company's equity in a net loss of any such
Person for such period and (B) the aggregate amount of cash actually
distributed by such Person during such period to the Company or a
Restricted Subsidiary as a dividend or other distribution (subject, in
the case of a dividend or other distribution made to a Restricted
Subsidiary, to the limitations contained in clause (c) below) shall be
included in determining such Consolidated Net Income;
(b) any net income (or loss) of any Person acquired by the
Company or a Subsidiary of the Company in a pooling of interests
transaction for any period prior to the date of such acquisition;
8
(c) any net income (or loss) of any Restricted Subsidiary if
such Restricted Subsidiary is subject to restrictions, directly or
indirectly, on the payment of dividends or the making of distributions
by such Restricted Subsidiary, directly or indirectly, to the Company,
except that (i) subject to the limitations contained in clause (d)
below, the Company's equity in the net income of any such Restricted
Subsidiary for such period shall be included in such Consolidated Net
Income up to the aggregate amount of cash actually distributed by such
Restricted Subsidiary during such period to the Company or another
Restricted Subsidiary as a dividend or other distribution (subject, in
the case of a dividend or other distribution made to another Restricted
Subsidiary, to the limitation contained in this clause) and (ii) the
Company's equity in a net loss of any such Restricted Subsidiary for
such period shall be included in determining such Consolidated Net
Income;
(d) any gain (loss) realized upon the sale or other
disposition of any asset of the Company or its consolidated
Subsidiaries (including pursuant to any Sale/Leaseback Transaction)
that is not sold or otherwise disposed of in the ordinary course of
business and any gain (loss) realized upon the sale or other
disposition of any Capital Stock of any Person;
(e) any extraordinary gain or loss;
(f) the cumulative effect of a change in accounting
principles; and
(g) the Company's equity in the net income (or loss) of
Equistar, net of tax, for so long as Equistar is not a Restricted
Subsidiary of the Company.
Notwithstanding the foregoing, for the purposes of Section 4.04 only, there
shall be excluded from Consolidated Net Income any dividends, repayments of
loans or advances or other transfers of assets from Unrestricted Subsidiaries to
the Company or a Restricted Subsidiary to the extent such dividends, repayments
or transfers increase the amount of Restricted Payments permitted under such
Section pursuant to clause (a) (iv)(3)(D) thereof.
"Consolidated Net Tangible Assets" of the Issuer means, at any
date of determination, the total amount of assets (less applicable reserves and
other properly deductible items) after deducting therefrom (i) all current
liabilities (excluding any thereof which are by their terms extendible or
renewable at the option of the obligor thereon to a time more than 12 months
after the time as of which the amount thereof is being computed and excluding
current maturities of long term debt), and (ii) the value (net of any applicable
reserves) of all goodwill, trade names, trademarks, purchased technology,
patents, unamortized debt discount and other like intangible assets, all as set
forth on the most recent balance sheet of the Issuer and its consolidated
Subsidiaries, computed in accordance with GAAP, and prior to the Fall-Away Date
shall exclude the
9
"net tangible assets" of all of its Subsidiaries which are not Restricted
Subsidiaries. "Consolidated Net Tangible Assets" of the Company shall include
the Company and its consolidated Subsidiaries, and prior to the Fall-Away Date
shall exclude the "net tangible assets" of all of its Subsidiaries which are not
Restricted Subsidiaries and shall have a correlative meaning. For purposes of
the definition of "Change of Control" and Section 5.01, "Net Tangible Assets"
means, at any date of determination, the "net tangible assets" of any Persons
being sold, plus the book value of the investment in Equistar to the extent it
is being sold, each as set forth on the most recent balance sheet of such
Persons, computed in accordance with GAAP. As used in the definition of each of
Consolidated Net Tangible Assets and Net Tangible Assets, the term "net tangible
assets" of any Person means, at any date of determination, the total amount of
assets (less applicable reserves and other properly deductible items) after
deducting therefrom (i) all current liabilities (excluding any thereof which are
by their terms extendible or renewable at the option of the obligor thereon to a
time more than 12 months after the time as of which the amount thereof is being
computed and excluding current maturities of long term debt), and (ii) the value
(net of any applicable reserves) of all goodwill, trade names, trademarks,
purchased technology, patents, unamortized debt discount and other like
intangible assets, all as set forth on the most recent balance sheet of such
Person computed in accordance with GAAP.
"Corporate Trust Office" means the principal office of the
Trustee at which at any time its corporate trust business shall be administered,
which office at the date hereof is located at ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ 21 West,
New York, New York 10286, Attention: Corporate Trust Administration, or such
other address as the Trustee may designate from time to time by notice to the
Holders, the Issuer and the Company, or the principal corporate trust office of
any successor Trustee (or such other address as a successor Trustee may
designate from time to time by notice to the Holders, the Issuer and the
Company).
"Credit Agreement" means the credit agreement dated as of June
18, 2001, among the Issuer, Millennium Inorganic Chemicals Limited, the other
subsidiaries of the Company party thereto from time to time, the Company, the
lenders party thereto, the issuing banks party thereto, Bank of America, N.A.,
as syndication agent, and The Chase Manhattan Bank, as administrative agent and
collateral agent, as amended, restated, supplemented, waived, replaced, renewed,
extended, increased, substituted (whether or not upon termination, and whether
with the original lenders or otherwise), refinanced, restructured or otherwise
modified from time to time (except to the extent that any such amendment,
restatement, supplement, waiver, replacement, renewal, extension, increase,
substitution, resubstitution, refinancing, restructuring or other modification
thereto would be prohibited by the terms of this Indenture, unless otherwise
agreed to by the Holders of at least a majority in aggregate principal amount of
Securities at the time outstanding).
10
"Currency Agreement" means with respect to any Person any
foreign exchange contract, currency swap agreements or other similar agreement
or arrangement to which such Person is a party or of which it is a beneficiary.
"Default" means any event which is, or after notice or passage
of time or both would be, an Event of Default.
"Disqualified Stock" means, with respect to any Person, 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 or exercisable) or upon the
happening of any event (a) matures or is mandatorily redeemable pursuant to a
sinking fund obligation or otherwise, (b) is convertible or exchangeable for
Indebtedness or Disqualified Stock (excluding Capital Stock convertible or
exchangeable solely at the option of the Company or a Restricted Subsidiary;
provided, however, that any such conversion or exchange shall be deemed an
Incurrence of Indebtedness or Disqualified Stock, as applicable) or (c) is
redeemable at the option of the holder thereof, in whole or in part, in the case
of each of clauses (a), (b) and (c), on or prior to the date which is 91 days
after the Stated Maturity of the Securities; 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 repurchase or redeem
such Capital Stock upon the occurrence of an "asset sale" or "change of control"
occurring prior to the date which is 91 days after the Stated Maturity of the
Securities shall not constitute Disqualified Stock if the "asset sale" or
"change of control" provisions applicable to such Capital Stock are not more
favorable to the holders of such Capital Stock than the provisions of Sections
4.06 and 4.08.
"Domestic Subsidiary" means any Restricted Subsidiary of the
Company other than a Foreign Subsidiary.
"EBITDA" for any period means the Consolidated Net Income for
such period, plus, without duplication, the following to the extent deducted in
calculating such Consolidated Net Income: (a) income tax expense of the Company
and its consolidated Restricted Subsidiaries, (b) Consolidated Interest Expense,
(c) depreciation expense of the Company and its consolidated Restricted
Subsidiaries, (d) amortization expense of the Company and its consolidated
Restricted Subsidiaries (excluding amortization expense attributable to a
prepaid cash item that was paid in a prior period) and (e) all other noncash
charges (including, without limitation, noncash charges resulting from any
unrealized foreign currency transaction gains or losses in respect of
Indebtedness denominated in currencies other than the U.S. dollar and noncash
charges related to discontinued operations) of the Company and its consolidated
Restricted Subsidiaries (excluding any such noncash charge to the extent it
represents an accrual of or reserve for cash expenditures in any future period)
less all noncash items of income of the Company and its Restricted Subsidiaries,
in each case for such period; minus, without duplication, any cash or noncash
items of income (loss) attributable to the Company's investment in
11
Equistar for such period for so long as Equistar is not a Restricted Subsidiary
of the Company, to the extent included in Consolidated Net Income.
Notwithstanding the foregoing, the provision for taxes based on the income or
profits of, and the depreciation and amortization and noncash charges of, a
Restricted Subsidiary of the Company shall be added to Consolidated Net Income
to compute EBITDA only to the extent (and in the same proportion) that the net
income of such Restricted Subsidiary was included in calculating Consolidated
Net Income and only if a corresponding amount would be permitted at the date of
determination to be dividended to the Company by such Restricted Subsidiary
without prior approval (that has not been obtained), pursuant to the terms of
its charter and all agreements, instruments, judgments, decrees, orders,
statutes, rules and governmental regulations applicable to such Restricted
Subsidiary or its stockholders.
"Equistar" means Equistar Chemicals, LP, a Delaware limited
partnership.
"Equistar Partnership Agreement" means the Amended and
Restated Limited Partnership Agreement of Equistar Chemicals, LP dated as of May
15, 1998, as in effect on the Closing Date, entered into by and among Lyondell
Petrochemical G.P. Inc., Lyondell Petrochemical L.P. Inc, Millennium
Petrochemicals GP LLC, Millennium Petrochemicals LP LLC, PDG Chemical Inc.,
Occidental Petrochem Partner 1, Inc. and Occidental Petrochem Partner 2, Inc.
"Equity Offering" means a public or private sale for cash of
Capital Stock (other than Disqualified Stock or Preferred Stock) of the Company.
"Exchange Act" means the Securities Exchange Act of 1934.
"Fair Market Value" means, with respect to any asset or
property, the price which could be negotiated in an arm's-length, free market
transaction, for cash, between a willing seller and a willing and able buyer,
neither of whom is under undue pressure or compulsion to complete the
transaction. The Fair Market Value of property or assets other than cash which
involves (a) an aggregate amount in excess of $10,000,000, shall be set forth in
a resolution approved by at least a majority of the Board of Directors of the
Company and (b) an aggregate amount in excess of $25,000,000, shall have been
determined in writing by a nationally recognized appraisal or investment banking
firm.
"Foreign Subsidiary" means any Restricted Subsidiary of the
Company that is not organized under the laws of the United States of America or
any State thereof or the District of Columbia.
"Funded Debt" means Indebtedness that by its terms (i) matures
more than one year from the date of original issuance or creation or (ii)
matures within one year
12
from such date, but is renewable or extendible at the option of the obligor to a
date more than one year from such date.
"GAAP" means generally accepted accounting principles in the
United States of America as in effect as of the Closing Date, including those
set forth in (a) the opinions and pronouncements of the Accounting Principles
Board of the American Institute of Certified Public Accountants, (b) statements
and pronouncements of the Financial Accounting Standards Board, (c) such other
statements by such other entities as approved by a significant segment of the
accounting profession and (d) the 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 in staff accounting bulletins and
similar written statements from the accounting staff of the SEC. All ratios and
computations based on GAAP contained in this Indenture shall be computed in
conformity with GAAP.
"Guarantee" means any obligation, contingent or otherwise, of
any Person directly or indirectly guaranteeing any Indebtedness of any other
Person and any obligation, direct or indirect, contingent or otherwise, of such
Person (a) to purchase or pay (or advance or supply funds for the purchase or
payment of) such Indebtedness of such other Person (whether arising by virtue of
partnership arrangements, or by agreement to keep-well, to purchase assets,
goods, securities or services, to take-or-pay, or to maintain financial
statement conditions or otherwise) or (b) entered into for purposes 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. The term "Guarantee"
used as a verb has a corresponding meaning. The term "Guarantor" shall mean any
Person Guaranteeing any obligation.
"Hedging Agreement" means any Currency Agreement, any Interest
Rate Agreement and any Commodity Agreement.
"Hedging Obligations" of any Person means the obligations of
such Person pursuant to any Hedging Agreement.
"Holder" means the Person in whose name a Security is
registered on the Registrar's books.
"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 Subsidiary (whether by
merger, consolidation, acquisition or otherwise) shall be deemed to be Incurred
by such Person at the time it becomes a
13
Subsidiary. The term "Incurrence" when used as a noun shall have a correlative
meaning. The accretion of principal of a non-interest bearing or other discount
security shall not be deemed the Incurrence of Indebtedness.
"Indebtedness" means, with respect to any Person on any date
of determination, without duplication:
(a) the principal of and premium (if any) in respect of
indebtedness of such Person for borrowed money;
(b) the principal of and premium (if any) in respect of
obligations of such Person evidenced by bonds, debentures, notes or
other similar instruments;
(c) all obligations of such Person in respect of letters of
credit or other similar instruments (including reimbursement
obligations with respect thereto) (it being understood that obligations
with respect to letters of credit securing obligations (other than
obligations described in clause (a), (b) or (e) of this definition of
"Indebtedness") entered into in the ordinary course of business of such
Person to the extent such letters of credit are not drawn upon and
Guarantees thereof shall not be considered "Indebtedness" unless and
until they are drawn upon and such amounts are outstanding for 5 days);
(d) all obligations of such Person to pay the deferred and
unpaid purchase price of property or services (except Trade Payables),
which purchase price is due more than one year after the date of
placing such property in service or taking delivery and title thereto
or the completion of such services;
(e) all Capitalized Lease Obligations of such Person;
(f) the amount of all obligations of such Person with respect
to the redemption, repayment or other repurchase of any Disqualified
Stock or, with respect to any Subsidiary of such Person, any Preferred
Stock (but excluding, in each case, any accrued dividends);
(g) all Indebtedness of other Persons secured by a Lien on any
asset of such Person, whether or not such Indebtedness is assumed by
such Person; provided, however, that the amount of Indebtedness of such
Person shall be the lesser of (i) the Fair Market Value of such asset
at such date of determination and (ii) the amount of such Indebtedness
of such other Persons;
(h) Hedging Obligations of such Person other than pursuant to
Hedging Agreements entered into for bona fide hedging purposes in the
ordinary course of business; provided, however, that such Hedging
Agreements do not increase the
14
Indebtedness of such Person outstanding at any time other than as a
result of fluctuations in interest rates, exchange rates, commodity
rates or by reason of fees, indemnities and compensation payable
thereunder;
(i) prior to the Fall-Away Date only (and not thereafter), the
amount advanced with respect to accounts receivable of such Person
sold, assigned or otherwise transferred by such Person in a receivables
financing; and
(j) all obligations of the type referred to in clauses (a)
through (I) 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.
The amount of Indebtedness of any Person at any date shall be (i) the
outstanding balance at such date of all unconditional obligations as described
above and (ii) after the occurrence of the contingency giving rise to an
obligation, the maximum liability of such contingent obligation at such date.
"Indenture" means this Indenture as amended or supplemented
from time to time.
"Interest Rate Agreement" means with respect to any Person any
interest rate protection agreement, interest rate future agreement, interest
rate option agreement, interest rate swap agreement, interest rate cap
agreement, interest rate collar agreement, interest rate hedge agreement or
other similar agreement or arrangement to which such Person is party or of which
it is a beneficiary.
"Investment" in any Person means any direct or indirect
advance, loan (other than advances to customers in the ordinary course of
business that are recorded as accounts receivable on the balance sheet of the
lender) or other extension of credit (including by way of guarantee or similar
arrangement) or capital contribution to (by means of any transfer of cash or
other property to others or any payment for property or services for the account
or use of others), or any purchase or acquisition of Capital Stock, Indebtedness
or other similar instruments issued by such Person. For purposes of the
definition of "Unrestricted Subsidiary" and Section 4.04, (a) "Investment" shall
include the portion (proportionate to the Company's 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 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 an amount (if positive)
equal to (i) the Company's "Investment" in such Subsidiary at the time of such
redesignation less (ii) the portion (proportionate to the Company's equity
interest in such Subsidiary) of the Fair Market Value of the net assets of such
Subsidiary
15
at the time of such redesignation; and (b) any property transferred to or from
an Unrestricted Subsidiary shall be valued at its Fair Market Value at the time
of such transfer.
"Issue Date", with respect to any Initial Securities, means
the date on which the Initial Securities are originally issued.
"Issuer" means the party named as such in this Indenture until
a successor replaces it and, thereafter, means the successor and, for purposes
of any provision contained herein and required by the TIA, each other obligor on
the indenture securities.
"Lien" means, with respect to any property or assets, any
mortgage or deed of trust, pledge, hypothecation, assignment, deposit
arrangement, security interest, lien, charge, easement (other than any easement
not materially impairing usefulness or marketability), encumbrance, preference,
priority or other security agreement or preferential arrangement of any kind or
nature whatsoever on or with respect to such property or assets (including,
without limitation, any conditional sale or other title retention agreement
having substantially the same economic effect as any of the foregoing).
"liquidated damages" means any liquidated damages payable
under a Registration Agreement.
"Net Available Cash" from an Asset Disposition means cash
payments received (including any cash payments received by way of deferred
payment of principal pursuant to a note or installment receivable or otherwise
and proceeds from the sale or other disposition of any securities received as
consideration, but only as and when received, but excluding any other
consideration received in the form of assumption by the acquiring Person of
Indebtedness or other obligations relating to the properties or assets that are
the subject of such Asset Disposition or received in any other noncash form)
therefrom, in each case net of (a) all legal, title and recording tax expenses,
commissions and other fees and expenses (including investment banking and
financial advisory fees) incurred, and all Federal, state, provincial, foreign
and local taxes required to be paid or accrued as a liability under GAAP, as a
consequence of such Asset Disposition, (b) all payments made on any Indebtedness
which is secured by any assets subject to such Asset Disposition, in accordance
with the terms of any Lien upon or other security agreement of any kind with
respect to such assets, or which must by its terms, or in order to obtain a
necessary consent to such Asset Disposition, or by applicable law be repaid out
of the proceeds from such Asset Disposition, (c) all distributions and other
payments required to be made to minority interest holders in Subsidiaries or
joint ventures as a result of such Asset Disposition and (d) appropriate amounts
to be provided by the seller as a reserve, in accordance with GAAP, against any
liabilities associated with the property or other assets
16
disposed of in such Asset Disposition and retained by the Company or any
Restricted Subsidiary after such Asset Disposition.
"Net Cash Proceeds", with respect to any issuance or sale of
Capital Stock, means the cash proceeds of such issuance or sale net of
attorneys' fees, accountants' fees, underwriters' or placement agents' fees,
discounts or commissions and brokerage and sales commissions or fees, consultant
and other fees (including investment banking and financial advisory fees)
actually incurred in connection with such issuance or sale and net of taxes paid
or payable as a result thereof.
"Note Guarantee" means the Company's Guarantee of the
obligations with respect to the Securities issued by the Issuer pursuant to the
terms of this Indenture.
"Officer" means the Chairman of the Board, the Chief Executive
Officer, the Chief Financial Officer, the President, any Vice President, the
Treasurer or the Secretary or an Assistant Secretary of the Issuer. "Officer" of
the Company has a correlative meaning.
"Officers' Certificate" means a certificate signed by two
Officers.
"Opinion of Counsel" means a written opinion from legal
counsel who is acceptable to the Trustee. The counsel may be an employee of or
counsel to the Issuer or the Company.
"Permitted Business" means any business engaged in by the
Company or any Restricted Subsidiary on the Closing Date and any Related
Business.
"Permitted Investment" means an Investment by the Company or
any Restricted Subsidiary in (a) the Company, a Restricted Subsidiary or a
Person that will, upon the making of such Investment, become a Restricted
Subsidiary; provided, however, that the primary business of such Restricted
Subsidiary is a Permitted Business; (b) another Person if as a result of such
Investment such other Person is merged or consolidated with or into, or
transfers or conveys all or substantially all its assets to, the Company or a
Restricted Subsidiary; provided, however, that such Person's primary business is
a Permitted Business; (c) Temporary Cash Investments; (d) receivables owing to
the Company or any Restricted Subsidiary if created or acquired in the ordinary
course of business and payable or dischargeable in accordance with customary
trade terms; provided, however, that such trade terms may include such
concessionary trade terms as the Company or any such Restricted Subsidiary deems
reasonable under the circumstances; (e) payroll, travel and similar advances to
cover matters that are expected at the time of such advances ultimately to be
treated as expenses for accounting purposes and that are made in the ordinary
course of business; (f) loans or advances to employees, directors and officers
made in the ordinary course of business consistent with past
17
practices of the Company or such Restricted Subsidiary and not exceeding
$10,000,000 in the aggregate outstanding at any one time; (g) stock, obligations
or securities received in settlement of debts created in the ordinary course of
business and owing to the Company or any Restricted Subsidiary or in
satisfaction of judgments or pursuant to any plan of reorganization or similar
arrangement upon the bankruptcy or insolvency of a debtor; (h) any Person to the
extent such Investment represents the noncash portion of the consideration
received for an Asset Disposition that was made pursuant to and in compliance
with Section 4.06; (i) a Receivables Entity or any Investment by a Receivables
Entity in any other Person in connection with a Qualified Receivables
Transaction, including Investments of funds held in accounts permitted or
required by the arrangements governing such Qualified Receivables Transaction or
any related Indebtedness; provided that any Investment in a Receivables Entity
is in the form of a Purchase Money Note, contribution of additional receivables
or an equity interest; (j) Hedging Obligations Incurred in compliance with
Section 4.03; (k) any Person consisting of Guarantees Incurred in accordance
with Section 4.03; (l) any Person provided that the payment for such Investment
consists solely of Capital Stock (other than Disqualified Stock or Preferred
Stock) of the Company or any Restricted Subsidiary; (m) Investments in prepaid
expenses, negotiable instruments held for collection or lease, workers'
compensation, performance and other similar deposits provided to third parties
in the ordinary course of business; (n) any Person to the extent such Investment
represents the noncash portion of the consideration received for an Asset
Disposition that was made pursuant to and in compliance with Section 4.06; and
(o) Guarantees of Indebtedness of Equistar in an aggregate principal amount not
to exceed $750,000,000 on terms no less favorable (other than an extension
thereof) to the Company than those contained in the Issuer's limited Guarantee
of Indebtedness of Equistar existing on the Closing Date.
"Person" means any individual, corporation, partnership,
limited liability company, joint venture, association, joint-stock company,
trust, unincorporated organization, government or any agency or political
subdivision thereof or any other entity.
"Preferred Stock", as applied to the Capital Stock of any
Person, means Capital Stock of any class or classes (however designated) that is
preferred as to the payment of dividends, or as to the distribution of assets
upon any voluntary or involuntary liquidation or dissolution of such Person,
over shares of Capital Stock of any other class of such Person.
"principal" of a Security means the principal of the Security
plus the premium, if any, payable on the Security which is due or overdue or is
to become due at the relevant time.
"Purchase Money Indebtedness" means Indebtedness (a)
consisting of the deferred purchase price of an asset, conditional sale
obligations, obligations under any
18
title retention agreement and other purchase money obligations, in each case
where the maturity of such Indebtedness does not exceed the anticipated useful
life of the asset being financed, and (b) Incurred to finance the acquisition by
the Company or a Restricted Subsidiary of such asset, including additions and
improvements; provided, however, that such Indebtedness is incurred no later
than 180 days after the acquisition by the Company or such Restricted Subsidiary
of such asset.
"Purchase Money Note" means a promissory note of a Receivables
Entity evidencing a line of credit, which may be irrevocable, from the Company
or any Subsidiary of the Company to a Receivables Entity in connection with a
Qualified Receivables Transaction, which note (a) shall be repaid from cash
available to the Receivables Entity, other than (i) amounts required to be
established as reserves, (ii) amounts paid to investors in respect of interest
or yield, (iii) principal, fees and other amounts owing to such investors and
(iv) amounts paid in connection with the purchase of newly generated receivables
and (b) may be subordinated to the payments described in clause (a).
"Qualified Receivables Transaction" means any transaction or
series of transactions that may be entered into by the Company or any Subsidiary
of the Company pursuant to which the Company or any of its Subsidiaries may
sell, convey or otherwise transfer to (a) a Receivables Entity (in the case of a
transfer by the Company or any of its Subsidiaries) or (b) any other Person (in
the case of a transfer by a Receivables Entity), or may grant a security
interest in, any accounts receivable (whether now existing or arising in the
future) of the Company or any of its Subsidiaries, and any assets related
thereto including, without limitation, all collateral securing such accounts
receivable, all contracts and all Guarantees or other obligations in respect of
such accounts receivable, proceeds of such accounts receivable and other assets
which are customarily transferred or in respect of which security interests are
customarily granted in connection with asset securitization transactions
involving accounts receivable; provided that (i) the Board of Directors of the
Company shall have determined in good faith that such Qualified Receivables
Transaction is economically fair and reasonable to the Company and the
Receivables Entity and (ii) the financing terms, covenants, termination events
and other provisions thereof shall be market terms (as determined in good faith
by the Board of Directors of the Company). The grant of a security interest in
any accounts receivable of the Company or any of its Restricted Subsidiaries to
secure Bank Indebtedness shall not be deemed a Qualified Receivables
Transaction.
"Receivables Entity" means a Wholly Owned Subsidiary of the
Company (or another Person formed for the purposes of engaging in a Qualified
Receivables Transaction with the Company or one of its Subsidiaries in which the
Company or any Subsidiary of the Company makes an Investment and to which the
Company or any Subsidiary of the Company transfers accounts receivable and
related assets) which engages in no activities other than in connection with the
purchase, sale or financing of
19
accounts receivable of the Company or one of its Subsidiaries, all proceeds
thereof and all rights (contractual or other), collateral and other assets
relating thereto, and any business or activities incidental or related to such
business, and which is designated by the Board of Directors (as provided below)
as a Receivables Entity and (a) no portion of the Indebtedness or any other
obligations (contingent or otherwise) of which (i) is Guaranteed by the Company
or any Subsidiary of the Company (excluding Guarantees of obligations (other
than the principal of, and interest on, Indebtedness) pursuant to Standard
Securitization Undertakings), (ii) is recourse to or obligates the Company or
any Subsidiary of the Company in any way other than pursuant to Standard
Securitization Undertakings or (iii) subjects any property or asset of the
Company or any Subsidiary of the Company, directly or indirectly, contingently
or otherwise, to the satisfaction thereof, other than pursuant to Standard
Securitization Undertakings; (b) with which neither the Company nor any
Subsidiary of the Company has any material contract, agreement, arrangement or
understanding other than on terms which the Company reasonably believes to be no
less favorable to the Company or such Subsidiary than those that might be
obtained at the time from Persons that are not Affiliates of the Company and (c)
to which neither the Company nor any Subsidiary of the Company has any
obligation to maintain or preserve such entity's financial condition or cause
such entity to achieve certain levels of operating results. Any such designation
by the Board of Directors of the Company shall be evidenced to the Trustee by
filing with the Trustee a certified copy of the resolution of the Board of
Directors of the Company giving effect to such designation and an Officers'
Certificate certifying that such designation complied with the foregoing
conditions.
"Refinance" means, in respect of any Indebtedness, to
refinance, extend, renew, refund, repay, prepay, redeem, defease or retire, or
to issue other Indebtedness in exchange or replacement for, such Indebtedness.
"Refinanced" and "Refinancing" shall have correlative meanings.
"Refinancing Indebtedness" means Indebtedness that is Incurred
to refund, refinance, replace, renew, repay, amend or extend (including pursuant
to any defeasance or discharge mechanism) any Indebtedness of the Company or any
Restricted Subsidiary existing on the Closing Date or Incurred in compliance
with this Indenture (including Indebtedness of the Company that Refinances
Refinancing Indebtedness); provided, however, that (a) the Refinancing
Indebtedness has a Stated Maturity no earlier than the Stated Maturity of the
Indebtedness being Refinanced, (b) the Refinancing Indebtedness has an Average
Life at the time such Refinancing Indebtedness is Incurred that is equal to or
greater than the Average Life of the Indebtedness being refinanced, (c) such
Refinancing Indebtedness is Incurred in an aggregate principal amount (or if
issued with original issue discount, an aggregate issue price) that is equal to
or less than the aggregate principal amount (or if issued with original issue
discount, the aggregate accreted value) then outstanding of the Indebtedness
being Refinanced and (d) if the Indebtedness being Refinanced is subordinated in
right of payment to the Securities, such Refinancing
20
Indebtedness is subordinated in right of payment to the Securities at least to
the same extent as the Indebtedness being Refinanced; provided further, however,
that Refinancing Indebtedness shall not include (i) Indebtedness of a Restricted
Subsidiary that Refinances Indebtedness of the Company or (ii) Indebtedness of
the Company or a Restricted Subsidiary that Refinances Indebtedness of an
Unrestricted Subsidiary.
"Related Business" means any business related, ancillary or
complementary to the businesses of the Company and the Restricted Subsidiaries
on the Closing Date.
"Restricted Property" means (i) any land, land improvements,
buildings and fixtures (to the extent they constitute real property interests,
including any leasehold interest therein) constituting a principal corporate
office or a manufacturing, distribution or warehouse facility (other than such
as are determined in good faith by the Board of Directors of the Company to be
immaterial to the total business conducted by the Company and the Restricted
Subsidiaries as a whole) and (ii) any shares of Capital Stock or Indebtedness of
a Restricted Subsidiary.
"Restricted Subsidiary" means any Subsidiary of the Company
other than an Unrestricted Subsidiary, except (I) for purposes of the definition
of "Consolidated Net Tangible Assets" of the Issuer, Restricted Subsidiary means
any Subsidiary of the Issuer other than an Unrestricted Subsidiary and (ii) for
purposes of Section 4.03(e) (other than the term Consolidated Net Tangible
Assets of the Issuer, and clauses (v)(2) and (v)(3) thereof), Section
4.14(b)(iii), Section 4.15(b)(iii) and for all purposes following the Fall- Away
Date, "Restricted Subsidiary" means any Subsidiary of the Issuer which owns
Restricted Property and is organized under the laws of a jurisdiction in the
United States.
"SEC" means the Securities and Exchange Commission.
"Securities" means the Securities issued under this Indenture.
"Securities Act" means the Securities Act of 1933, as amended.
"Senior Indebtedness" of the Issuer or the Company means the
principal of, premium (if any) and accrued and unpaid interest on (including
interest accruing on or after the filing of any petition in bankruptcy or for
reorganization of the Issuer or the Company, regardless of whether or not a
claim for post-filing interest is allowed in such proceedings) and fees and
other amounts owing in respect of, Bank Indebtedness and all other Indebtedness
of the Issuer or the Company, as applicable, whether outstanding on the Closing
Date or thereafter Incurred, unless in the instrument creating or evidencing the
same or pursuant to which the same is outstanding it is provided that such
obligations are subordinated in right of payment to the Securities or the
Company's Note Guarantee, as applicable; provided, however, that Senior
Indebtedness of the Issuer or the Company
21
shall not include (a) any obligation of the Issuer to the Company or any other
Subsidiary of the Company or Equistar or any obligation of the Company to any
Subsidiary of the Company or Equistar, (b) any liability for federal, state,
local or other taxes owed or owing by the Issuer or the Company, as applicable,
(c) any accounts payable or other liability to trade creditors arising in the
ordinary course of business (including Guarantees thereof or instruments
evidencing such liabilities), (d) any Indebtedness or obligation of the Issuer
or the Company, as applicable (and any accrued and unpaid interest in respect
thereof) that by its terms is subordinate or junior in any respect to any other
Indebtedness or obligation of the Issuer or the Company, as applicable,
including any Subordinated Obligations of the Issuer or the Company, as
applicable, (e) any obligations with respect to any Capital Stock or (f) any
Indebtedness Incurred in violation of this Indenture.
"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.
"Standard Securitization Undertakings" means representations,
warranties, covenants, repurchase obligations and indemnities entered into by
the Company or any Subsidiary of the Company which are customary in an accounts
receivable securitization transaction.
"Stated Maturity" means, with respect to any security, the
date specified in such security as the fixed date on which the final payment of
principal of such security is due and payable, including pursuant to any
mandatory redemption provision (but excluding any provision providing for the
repurchase of such security at the option of the holder thereof upon the
happening of any contingency beyond the control of the issuer unless such
contingency has occurred).
"Subordinated Obligation" means any Indebtedness of the Issuer
(whether outstanding on the Closing Date or thereafter Incurred) that is
subordinate or junior in right of payment to the Securities pursuant to a
written agreement. "Subordinated Obligation" of the Company has a correlative
meaning.
"Subsidiary" of any Person means any corporation, association,
partnership, limited liability company or other business entity of which more
than 50% of the total voting power of shares of Capital Stock or other interests
(including partnership interests) entitled to vote in the election of directors,
managers or trustees thereof is at the time owned or controlled, directly or
indirectly, by (a) such Person, (b) such Person and one or more Subsidiaries of
such Person or (c) one or more Subsidiaries of such Person.
"Temporary Cash Investments" means any of the following: (a)
any investment in direct obligations of the United States of America or any
agency thereof or obligations Guaranteed by the United States of America or any
agency thereof,
22
(b) investments in time deposit accounts, certificates of deposit and money
market deposits maturing within 180 days of the date of acquisition thereof
issued by a bank or trust company that 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 having capital, surplus and undivided profits
aggregating in excess of $250,000,000 (or the foreign currency equivalent
thereof) and whose long-term debt is rated "A" (or such similar equivalent
rating) or higher by at least one nationally recognized statistical rating
organization (as defined in Rule 436 under the Securities Act), (c) repurchase
obligations with a term of not more than 30 days for underlying securities of
the types described in clause (a) above entered into with a bank meeting the
qualifications described in clause (b) above, (d) investments in commercial
paper, maturing not more than 90 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 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 higher) according to ▇▇▇▇▇'▇ Investors
Service, Inc. or "A-1" (or higher) according to Standard and Poor's Ratings
Service, a division of The ▇▇▇▇▇▇-▇▇▇▇ Companies, Inc. ("S&P"), and (e)
investments in securities with maturities of six months or less from the date of
acquisition issued or fully guaranteed by any state, commonwealth or territory
of the United States of America, or by any political subdivision or taxing
authority thereof, and rated at least "A" by S&P or "A" by ▇▇▇▇▇'▇ Investors
Service, Inc.
"TIA" means the Trust Indenture Act of 1939 (15 U.S.C.
'SS''SS'77aaa- 77bbbb) as in effect on the Closing Date.
"Trade Payables" means, with respect to any Person, any
accounts payable or any indebtedness or monetary obligation to trade creditors
created, assumed or Guaranteed by such Person arising in the ordinary course of
business in connection with the acquisition of goods or services.
"Treasury Rate" means the yield to maturity at the time of
computation of United States Treasury securities with a constant maturity (as
compiled by, and published in, the most recent Federal Reserve Statistical
Release H.15(519) which has become publicly available at least two Business Days
prior to the date fixed for redemption of the Securities (or, if such
Statistical Release is no longer published, any publicly available source of
similar market data)) most nearly equal to the period from the redemption date
to the maturity date of the Securities; provided, however, that if the period
from the redemption date to the maturity date of the Securities is not equal to
the constant maturity of a United States Treasury security for which a weekly
average yield is given, the Treasury Rate shall be obtained by linear
interpolation (calculated to the nearest one- twelfth of a year) from the weekly
average yields of United States Treasury securities for which such yields are
given, except that if the period from the redemption date to the maturity date
of the Securities is less than one year, the weekly average yield on actually
23
traded United States Treasury securities adjusted to a constant maturity of one
year shall be used.
"Trustee" means the party named as such in this Indenture
unless and until a successor replaces it and, thereafter, means the successor.
"Trust Officer" means, when used with respect to the Trustee,
any officer within the corporate trust department of the Trustee, including any
vice president, assistant vice president, assistant secretary, assistant
treasurer, trust officer or any other officer of the Trustee who customarily
performs functions similar to those performed by the Persons who at the time
shall be such officers, respectively, or to whom any corporate trust matter is
referred because of such person's knowledge of and familiarity with the
particular subject and who shall have direct responsibility for the
administration of this Indenture.
"Uniform Commercial Code" means the New York Uniform
Commercial Code as in effect from time to time.
"Unrestricted Subsidiary" means (a) any Subsidiary of the
Company that at the time of determination shall be designated an Unrestricted
Subsidiary by the Board of Directors of the Company in the manner provided below
and (b) any Subsidiary of an Unrestricted Subsidiary. The Board of Directors of
the Company may designate any Subsidiary of the Company (including any
Subsidiary of the Company acquired or formed after the date of the Indenture,
but excluding the Issuer) to be an Unrestricted Subsidiary unless such
Subsidiary or any of its Subsidiaries owns any Capital Stock or Indebtedness of,
or owns or holds any Lien on any property of, the Company or any other
Subsidiary of the Company that is not a Subsidiary of the Subsidiary to be so
designated; provided, however, that either (i) the Subsidiary to be so
designated has total consolidated assets of $1,000 or less or (ii) if such
Subsidiary has consolidated assets greater than $1,000, then such designation
would be permitted under Section 4.04. The Board of Directors of the Company may
designate any Unrestricted Subsidiary to be a Restricted Subsidiary; provided,
however, that immediately after giving effect to such designation (a) the
Company could Incur $1.00 of additional Indebtedness under Section 4.03(a) and
(b) no Default shall have occurred and be continuing. Any such designation of a
Subsidiary as a Restricted Subsidiary or Unrestricted Subsidiary by the Board of
Directors of the Company 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 and an Officers' Certificate
certifying that such designation complied with the foregoing provisions.
"U.S. Government Obligations" means direct obligations (or
certificates representing an ownership interest in such obligations) of the
United States of America (including any agency or instrumentality thereof) for
the payment of which the full faith
24
and credit of the United States of America is pledged and which are not callable
or redeemable at the issuer's option.
"Value" means, with respect to a Sale/Leaseback Transaction,
at the time of determination, the amount equal to the greater of (i) the net
proceeds of the sale or transfer of the property leased pursuant to such
Sale/Leaseback Transaction and (ii) the Fair Market Value of such property at
the time of entering into such Sale/Leaseback Transaction.
"Voting Stock" of a Person means all classes of Capital Stock
or other interests (including partnership interests) 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" means a Restricted Subsidiary of the
Company all the Capital Stock of which (other than directors' qualifying shares)
is owned by the Company or another Wholly Owned Subsidiary.
SECTION 1.02. Other Definitions.
Defined in
Term Section
---- ---------------
"Additional Amounts"............................................................. 4.11(b)
"Affiliate Transaction".......................................................... 4.07(a)
"Appendix"....................................................................... Preamble
"Bankruptcy Law"................................................................. 6.01
"beneficially own"............................................................... 1.01
"Change of Control Offer"........................................................ 4.08(b)
"covenant defeasance option"..................................................... 8.01(b)
"Custodian"...................................................................... 6.01
"Definitive Securities".......................................................... Appendix A
"Event of Default"............................................................... 6.01
"Exchange Securities"............................................................ Preamble
"Fall-Away Date"................................................................. 4.19
"Global Securities".............................................................. Appendix A
"Guaranteed Obligations"......................................................... 10.01
"incorporated provision"......................................................... 11.01
"Initial Securities"............................................................. Preamble
"legal defeasance option"........................................................ 8.01(b)
"Legal Holiday".................................................................. 11.08
"Notice of Default".............................................................. 6.01
"Offer".......................................................................... 4.06(b)
25
Defined in
Term Section
---- ---------------
"Offer Amount"................................................................... 4.06(c)(ii)
"Offer Period"................................................................... 4.06(c)(ii)
"Original Securities"............................................................ Preamble
"Paying Agent"................................................................... 2.04
"Private Exchange"............................................................... Appendix A
"Private Exchange Securities".................................................... Appendix A
"protected purchaser"............................................................ 2.08
"Purchase Date".................................................................. 4.06(c)(i)
"Registration Agreement"......................................................... Appendix A
"Registered Exchange Offer"...................................................... Appendix A
"Registrar"...................................................................... 2.04
"Relevant Taxing Jurisdiction"................................................... 4.11(a)
"Restricted Payment"............................................................. 4.04(a)
"Sale/Leaseback Transaction"..................................................... 4.15(a)
"Secured Debt"................................................................... 4.14(a)
"Securities Custodian"........................................................... Appendix A
"Successor Company".............................................................. 5.01(a)
"Successor Guarantor"............................................................ 5.01(b)
"Taxes".......................................................................... 4.11(a)
SECTION 1.03. Incorporation by Reference of Trust Indenture
Act. This Indenture is subject to the mandatory provisions of the TIA, which are
incorporated by reference in and made a part of this Indenture. The following
TIA terms have the following meanings:
"Commission" means the SEC.
"indenture securities" means the Securities and the Note
Guarantee.
"indenture security holder" means a Holder.
"indenture to be qualified" means this Indenture.
"indenture trustee" or "institutional trustee" means the
Trustee.
"obligor" on the indenture securities means the Issuer, the
Company and any other obligor on the indenture securities.
All other TIA terms used in this Indenture that are defined by
the TIA, defined by TIA reference to another statute or defined by SEC rule have
the meanings assigned to them by such definitions.
26
SECTION 1.04. Rules of Construction. Unless the context
otherwise requires:
(a) a term has the meaning assigned to it;
(b) an accounting term not otherwise defined has the meaning
assigned to it in accordance with GAAP;
(c) "or" is not exclusive;
(d) "including" means including without limitation;
(e) words in the singular include the plural and words in the
plural include the singular;
(f) the principal amount of any non-interest bearing or other
discount security at any date shall be the principal amount thereof
that would be shown on a balance sheet of the issuer dated such date
prepared in accordance with GAAP; and
(g) the principal amount of any Preferred Stock shall be (i)
the maximum liquidation value of such Preferred Stock or (ii) the
maximum mandatory redemption or mandatory repurchase price with respect
to such Preferred Stock, whichever is greater.
ARTICLE 2
The Securities
SECTION 2.01. Amount of Securities; Issuable in Series. The
aggregate principal amount of Securities which may be authenticated and
delivered under this Indenture shall not be limited. The Securities may be
issued in one or more series. All Securities of any one series shall be
substantially identical except as to denomination.
With respect to any Additional Securities issued after the
Closing Date (except for Securities authenticated and delivered upon
registration of transfer of, or in exchange for, or in lieu of, other Securities
pursuant to Section 2.07, 2.08, 2.09, 2.10 or 3.06 or the Appendix), there shall
be (a) established in or pursuant to a resolution of each of the Board of
Directors of the Issuer and the Company and (b)(i) set forth or determined
27
in the manner provided in an Officers' Certificate or (ii) established in one or
more indentures supplemental hereto, prior to the issuance of such Additional
Securities:
(1) whether such Additional Securities shall be issued as part
of a new or existing series of Securities and the title of such
Additional Securities (which shall distinguish the Additional
Securities of the series from Securities of any other series);
(2) the aggregate principal amount of such Additional
Securities which may be authenticated and delivered under this
Indenture, which may be in an unlimited aggregate principal amount;
(3) the issue price and issuance date of such Additional
Securities, including the date from which interest on such Additional
Securities shall accrue;
(4) if applicable, that such Additional Securities shall be
issuable in whole or in part in the form of one or more Global
Securities and, in such case, the respective depositaries for such
Global Securities, the form of any legend or legends which shall be
borne by such Global Securities in addition to or in lieu of those set
forth in Exhibit A hereto and any circumstances in addition to or in
lieu of those set forth in Section 2.3 of the Appendix in which any
such Global Security may be exchanged in whole or in part for
Additional Securities registered, or any transfer of such Global
Security in whole or in part may be registered, in the name or names of
Persons other than the depositary for such Global Security or a nominee
thereof; and
(5) if applicable, that such Additional Securities shall not
be issued in the form of Initial Securities as set forth in Exhibit A,
but shall be issued in the form of Exchange Securities as set forth in
Exhibit B.
If any of the terms of any Additional Securities are
established by action taken pursuant to resolutions of the Board of Directors of
the Issuer and the Company, a copy of an appropriate record of such action shall
be certified by the Secretary or any Assistant Secretary of the Issuer and the
Company and delivered to the Trustee at or prior to the delivery of the
Officers' Certificate or the indenture supplemental hereto setting forth the
terms of the Additional Securities.
SECTION 2.02. Form and Dating. Provisions relating to the
Original Securities, the Additional Securities, the Private Exchange Securities
and the Exchange Securities are set forth in the Appendix, which is hereby
incorporated in and expressly made a part of this Indenture. The (a) Original
Securities and the Trustee's certificate of authentication, (b) Private Exchange
Securities and the Trustee's certificate of authentication and (c) any
Additional Securities (if issued as Transfer Restricted
28
Securities) and the Trustee's certificate of authentication shall each be
substantially in the form of Exhibit A hereto, which is hereby incorporated in
and expressly made a part of this Indenture. The Exchange Securities and any
Additional Securities issued other than as Transfer Restricted Securities and
the Trustee's certificate of authentication shall be substantially in the form
of Exhibit B hereto, which is hereby incorporated in and expressly made a part
of this Indenture. The Securities may have notations, legends or endorsements
(including the Note Guarantee) required by law, stock exchange rule, agreements
to which the Issuer or the Company is subject, if any, or usage (provided that
any such notation, legend or endorsement is in a form acceptable to the Issuer).
Each Security shall be dated the date of its authentication. The Securities
shall be issuable only in registered form without interest coupons and only in
denominations of $1,000 and integral multiples thereof.
SECTION 2.03. Execution and Authentication. Two Officers shall
sign the Securities for the Issuer by manual or facsimile signature.
If an Officer whose signature is on a Security no longer holds
that office at the time the Trustee authenticates the Security, the Security
shall be valid nevertheless.
A Security shall not be valid until an authorized signatory of
the Trustee manually signs the certificate of authentication on the Security.
The signature shall be conclusive evidence that the Security has been
authenticated under this Indenture.
The Trustee shall authenticate and make available for delivery
Securities as set forth in the Appendix.
The Trustee may appoint an authenticating agent reasonably
acceptable to the Issuer to authenticate the Securities. Any such appointment
shall be evidenced by an instrument signed by a Trust Officer, a copy of which
shall be furnished to the Issuer. Unless limited by the terms of such
appointment, an authenticating agent may authenticate Securities whenever the
Trustee may do so. Each reference in this Indenture to authentication by the
Trustee includes authentication by such agent. An authenticating agent has the
same rights as any Registrar, Paying Agent or agent for service of notices and
demands.
SECTION 2.04. Registrar and Paying Agent. (a) The Issuer shall
maintain an office or agency where Securities may be presented for registration
of transfer or for exchange (the "Registrar") and an office or agency where
Securities may be presented for payment (the "Paying Agent"). The Registrar
shall keep a register of the Securities and of their transfer and exchange. The
Issuer may have one or more co-registrars and one or more additional paying
agents. The term "Paying Agent" includes any additional paying agent, and the
term "Registrar" includes any co-registrars.
29
The Issuer initially appoints the Trustee as (i) Registrar and Paying Agent in
connection with the Securities and (ii) the Securities Custodian with respect to
the Global Securities.
(b) The Issuer shall enter into an appropriate agency
agreement with any Registrar or Paying Agent not a party to this Indenture,
which shall incorporate the terms of the TIA. The agreement shall implement the
provisions of this Indenture that relate to such agent. The Issuer shall notify
the Trustee of the name and address of any such agent. If the Issuer fails to
maintain a Registrar or Paying Agent, the Trustee shall act as such and shall be
entitled to appropriate compensation therefor pursuant to Section 7.07. The
Issuer may change the Paying Agent or Registrar without prior notice to the
Holders of the Securities. The Issuer, the Company or any of its domestically
organized Wholly Owned Subsidiaries may act as Paying Agent or Registrar.
(c) The Issuer may remove any Registrar or Paying Agent upon
written notice to such Registrar or Paying Agent and to the Trustee; provided,
however, that no such removal shall become effective until (i) acceptance of an
appointment by a successor as evidenced by an appropriate agreement entered into
by the Issuer and such successor Registrar or Paying Agent, as the case may be,
and delivered to the Trustee or (ii) notification to the Trustee that the
Trustee shall serve as Registrar or Paying Agent until the appointment of a
successor in accordance with clause (i) above. The Registrar or Paying Agent may
resign at any time upon written notice to the Issuer and the Trustee.
SECTION 2.05. Paying Agent to Hold Money in Trust. Prior to
each due date of the principal of and interest and liquidated damages (if any)
on any Security, the Issuer shall deposit with the Paying Agent (or if the
Issuer, the Company or a Wholly Owned Subsidiary is acting as Paying Agent,
segregate and hold in trust for the benefit of the Persons entitled thereto) a
sum sufficient to pay such principal, interest and liquidated damages (if any)
when so becoming due. The Issuer shall require each Paying Agent (other than the
Trustee) to agree in writing that the Paying Agent shall hold in trust for the
benefit of Holders or the Trustee all money held by the Paying Agent for the
payment of principal of and interest and liquidated damages (if any) on the
Securities, and shall notify the Trustee of any default by the Issuer in making
any such payment. If the Issuer, the Company or a Subsidiary of the Company acts
as Paying Agent, it shall segregate the money held by it as Paying Agent and
hold it as a separate trust fund. The Issuer at any time may require a Paying
Agent to pay all money held by it to the Trustee and to account for any funds
disbursed by the Paying Agent. Upon complying with this Section, the Paying
Agent shall have no further liability for the money delivered to the Trustee.
SECTION 2.06. Holder Lists. The Trustee shall preserve in as
current a form as is reasonably practicable the most recent list available to it
of the names and addresses of Holders. If the Trustee is not the Registrar, the
Issuer shall furnish, or cause the Registrar to furnish, to the Trustee, in
writing at least
30
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.
SECTION 2.07. Transfer and Exchange. The Securities shall be
issued in registered form and shall be transferable only upon the surrender of a
Security for registration of transfer and in compliance with the Appendix. When
a Security is presented to the Registrar with a request to register a transfer,
the Registrar shall register the transfer as requested if its requirements
therefor are met. When Securities are presented to the Registrar with a request
to exchange them for an equal principal amount of Securities of other
denominations, the Registrar shall make the exchange as requested if the same
requirements are met. To permit registration of transfers and exchanges, the
Issuer shall execute and the Trustee shall authenticate Securities at the
Registrar's request. The Issuer may require payment of a sum sufficient to pay
all taxes, assessments or other governmental charges in connection with any
transfer or exchange pursuant to this Section. The Issuer shall not be required
to make and the Registrar need not register transfers or exchanges of Securities
selected for redemption (except, in the case of Securities to be redeemed in
part, the portion thereof not to be redeemed) or any Securities for a period of
15 days before a selection of Securities to be redeemed.
Prior to the due presentation for registration of transfer of
any Security, the Issuer, the Company, the Trustee, the Paying Agent, and the
Registrar may deem and treat the Person in whose name a Security is registered
as the absolute owner of such Security for the purpose of receiving payment of
principal of and (subject to paragraph 2 of the Securities) interest, if any, on
such Security and for all other purposes whatsoever, whether or not such
Security is overdue, and none of the Issuer, the Company, the Trustee, the
Paying Agent, or the Registrar shall be affected by notice to the contrary.
Any Holder of a Global Security shall, by acceptance of such
Global Security, agree that transfers of beneficial interest in such Global
Security may be effected only through a book-entry system maintained by (a) the
Holder of such Global Security (or its agent) or (b) any Holder of a beneficial
interest in such Global Security, and that ownership of a beneficial interest in
such Global Security shall be required to be reflected in a book entry.
All Securities issued upon any transfer or exchange pursuant
to the terms of this Indenture shall evidence the same debt and shall be
entitled to the same benefits under this Indenture as the Securities surrendered
upon such transfer or exchange.
SECTION 2.08. Replacement Securities. If a mutilated Security
is surrendered to the Registrar or if the Holder of a Security claims that the
Security has been lost, destroyed or wrongfully taken, the Issuer shall issue
and the Trustee shall authenticate a replacement Security if the requirements of
Section 8-405 of the Uniform Commercial Code are met, such that the Holder (a)
satisfies the Issuer or the Trustee
31
within a reasonable time after such Holder has notice of such loss, destruction
or wrongful taking and the Registrar does not register a transfer prior to
receiving such notification, (b) makes such request to the Issuer or the Trustee
prior to the Security being acquired by a protected purchaser as defined in
Section 8-303 of the Uniform Commercial Code (a "protected purchaser") and (c)
satisfies any other reasonable requirements of the Trustee. If required by the
Trustee or the Issuer, such Holder shall furnish an indemnity bond sufficient in
the judgment of the Trustee to protect the Issuer, the Trustee, the Paying Agent
and the Registrar from any loss that any of them may suffer if a Security is
replaced. The Issuer and the Trustee may charge the Holder for their expenses in
replacing a Security. In the event any such mutilated, lost, destroyed or
wrongfully taken Security has become or is about to become due and payable, the
Issuer in its discretion may pay such Security instead of issuing a new Security
in replacement thereof.
Every replacement Security is an additional obligation of the
Issuer.
The provisions of this Section 2.08 are exclusive and shall
preclude (to the extent lawful) all other rights and remedies with respect to
the replacement or payment of mutilated, lost, destroyed or wrongfully taken
Securities.
SECTION 2.09. Outstanding Securities. Securities outstanding
at any time are all Securities authenticated by the Trustee except for those
canceled by it, those delivered to it for cancelation and those described in
this Section as not outstanding. Subject to Section 11.06, a Security does not
cease to be outstanding because the Issuer or an Affiliate of the Issuer holds
the Security.
If a Security is replaced pursuant to Section 2.08, it ceases
to be outstanding unless the Trustee and the Issuer receive proof satisfactory
to them that the replaced Security is held by a protected purchaser.
If the Paying Agent segregates and holds in trust, in
accordance with this Indenture, on a redemption date or maturity date money
sufficient to pay all principal, interest and liquidated damages, if any,
payable on that date with respect to the Securities (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. In the event that
Definitive Securities are to be issued under the terms of this Indenture, until
such Definitive Securities are ready for delivery, the Issuer may prepare and
the Trustee shall authenticate temporary Securities. Temporary Securities shall
be substantially in the form of Definitive Securities but may have variations
that the Issuer considers appropriate for temporary Securities. Without
unreasonable delay, the Issuer shall prepare and the
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Trustee shall authenticate Definitive Securities and deliver them in exchange
for temporary Securities upon surrender of such temporary Securities at the
office or agency of the Issuer, without charge to the Holder.
SECTION 2.11. Cancelation. The Issuer at any time may deliver
Securities to the Trustee for cancelation. The Registrar and the Paying Agent
shall forward to the Trustee any Securities surrendered to them for registration
of transfer, exchange or payment. The Trustee and no one else shall cancel all
Securities surrendered for registration of transfer, exchange, payment or
cancelation and shall dispose of canceled Securities in accordance with its
customary procedures or deliver canceled Securities to the Issuer pursuant to
written direction by an Officer. The Issuer may not issue new Securities to
replace Securities it has redeemed, paid or delivered to the Trustee for
cancelation. The Trustee shall not authenticate Securities in place of canceled
Securities other than pursuant to the terms of this Indenture.
SECTION 2.12. Defaulted Interest. If the Issuer defaults in a
payment of interest on the Securities, the Issuer shall pay the defaulted
interest (plus interest on such defaulted interest to the extent lawful) in any
lawful manner. The Issuer may pay the defaulted interest to the Persons who are
Holders on a subsequent special record date. The Issuer shall fix or cause to be
fixed any such special record date and payment date to the reasonable
satisfaction of the Trustee and shall promptly mail or cause to be mailed to
each Holder a notice that states the special record date, the payment date and
the amount of defaulted interest to be paid.
SECTION 2.13. CUSIP and ISIN Numbers. The Issuer in issuing
the Securities may use "CUSIP" and ISIN numbers (if then generally in use) and,
if so, the Trustee shall use "CUSIP" and ISIN numbers in notices of redemption
as a convenience to Holders; provided, however, that any such notice may state
that no representation is made as to the correctness of such numbers either as
printed on the Securities or as contained in any notice of a redemption and that
reliance may be placed only on the other identification numbers printed on the
Securities, and any such redemption shall not be affected by any defect in or
omission of such numbers.
ARTICLE 3
Redemption
SECTION 3.01. Notices to Trustee. If the Issuer elects to
redeem Securities pursuant to paragraph 5 or 6 of the Securities, it shall
notify the Trustee in writing of the redemption date and the principal amount of
Securities to be redeemed.
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The Issuer shall give each notice to the Trustee provided for
in this Section at least 45 but no more than 60 days before the redemption date
unless the Trustee consents to a shorter period. Such notice shall be
accompanied by an Officers' Certificate and an Opinion of Counsel from the
Issuer to the effect that such redemption will comply with the conditions
herein. Any such notice may be canceled at any time prior to notice of such
redemption being mailed to any Holder and shall thereby be void and of no
effect.
SECTION 3.02. Selection of Securities To Be Redeemed. If fewer
than all the Securities are to be redeemed, the Trustee shall select the
Securities to be redeemed, in compliance with the requirements of the principal
national securities exchanges, if any, on which the Securities are listed, on a
pro rata basis, by lot or by such other method that the Trustee in its sole
discretion shall deem to be fair and reasonable. The Trustee shall make the
selection from outstanding Securities not previously called for redemption. The
Trustee may select for redemption portions of the principal of Securities that
have denominations larger than $1,000. Securities and portions of them the
Trustee selects shall be in amounts of $1,000 or a whole multiple of $1,000.
Provisions of this Indenture that apply to Securities called for redemption also
apply to portions of Securities called for redemption. The Trustee shall notify
the Issuer promptly of the Securities or portions of Securities to be redeemed.
SECTION 3.03. Notice of Redemption. (a) At least 30 days but
not more than 60 days before a date for redemption of Securities, the Issuer
shall mail a notice of redemption by first-class mail to each Holder of
Securities to be redeemed at such Holder's registered address.
The notice shall identify the Securities to be redeemed and
shall state:
(i) the redemption date;
(ii) the redemption price and the amount of accrued interest
to the redemption date;
(iii) the name and address of the Paying Agent;
(iv) that Securities called for redemption must be surrendered
to the Paying Agent to collect the redemption price;
(v) if fewer than all the outstanding Securities are to be
redeemed, the certificate numbers and principal amounts of the
particular Securities to be redeemed;
(vi) that, unless the Issuer defaults in making such
redemption payment or the Paying Agent is prohibited from making such
payment pursuant to the terms
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of this Indenture, interest on Securities (or portion thereof) called
for redemption ceases to accrue on and after the redemption date;
(vii) the CUSIP or ISIN number, if any, printed on the
Securities being redeemed; and
(viii) that no representation is made as to the correctness or
accuracy of the CUSIP or ISIN number, if any, listed in such notice or
printed on the Securities.
(b) At the Issuer's request delivered at least 15 days prior
to the date of the mailing of such notice (unless a shorter period shall be
acceptable to the Trustee), the Trustee shall give the notice of redemption in
the Issuer's name and at the Issuer's expense. In such event, the Issuer shall
provide the Trustee with the information required by this Section.
SECTION 3.04. Effect of Notice of Redemption. Once notice of
redemption is mailed, Securities called for redemption become due and payable on
the redemption date and at the redemption price stated in the notice. Upon
surrender to the Paying Agent, such Securities shall be paid at the redemption
price stated in the notice, plus accrued interest and liquidated damages, if
any, to the redemption date; provided, however, that if the redemption date is
after a regular record date and on or prior to the interest payment date, the
accrued interest and liquidated damages, if any, shall be payable to the Holder
of the redeemed Securities registered on the relevant record date. Failure to
give notice or any defect in the notice to any Holder shall not affect the
validity of the notice to any other Holder.
SECTION 3.05. Deposit of Redemption Price. Prior to 10:00
a.m., New York City time, on the redemption date, the Issuer shall deposit with
the Paying Agent (or, if the Issuer, the Company or a Wholly Owned Subsidiary is
the Paying Agent, shall segregate and hold in trust) money sufficient to pay the
redemption price of and accrued interest and liquidated damages, if any, on all
Securities or portions thereof to be redeemed on that date other than Securities
or portions of Securities called for redemption that have been delivered by the
Issuer to the Trustee for cancelation. On and after the redemption date,
interest shall cease to accrue on Securities or portions thereof called for
redemption so long as the Issuer has deposited with the Paying Agent funds
sufficient to pay the principal of, plus accrued and unpaid interest and
liquidated damages, if any, on, the Securities to be redeemed, unless the Paying
Agent is prohibited from making such payment pursuant to the terms of this
Indenture.
SECTION 3.06. Securities Redeemed in Part. Upon surrender of a
Security that is redeemed in part, the Issuer shall execute and the Trustee
shall authenticate for the Holder (at the Issuer's expense) a new Security equal
in principal amount to the unredeemed portion of the Security surrendered.
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ARTICLE 4
Covenants
SECTION 4.01. Payment of Securities. The Issuer shall promptly
pay the principal of and interest and liquidated damages, if any, on the
Securities on the dates and in the manner provided in the Securities and in this
Indenture. Principal, interest and liquidated damages, if any, shall be
considered paid on the date due if on such date the Trustee or the Paying Agent
holds in accordance with this Indenture money sufficient to pay all principal
and interest then due and the Trustee or the Paying Agent, as the case may be,
is not prohibited from paying such money to the Holders on that date pursuant to
the terms of this Indenture.
The Issuer shall pay interest on overdue principal at the rate
specified therefor in the Securities, and it shall pay interest on overdue
installments of interest at the same rate to the extent lawful.
SECTION 4.02. SEC Reports. The Company and the Issuer shall
file with the SEC, and provide the Trustee and Holders and prospective Holders
(upon request) within 15 days after the Company files them with the SEC, copies
of the Company's annual report and the information, documents and other reports
that are specified in Section 13 and 15(d) of the Exchange Act. The Company and
the Issuer also shall comply with the other provisions of Section 314(a) of the
TIA. Delivery of such reports, information and documents to the Trustee is for
informational purposes only and the Trustee's receipt of such shall not
constitute constructive notice of any information contained therein or
determinable from information contained therein, including the Company's or the
Issuer's compliance with any of its covenants hereunder (as to which the Trustee
is entitled to rely exclusively on Officers' Certificates).
SECTION 4.03. Limitation on Indebtedness. (a) The Company
shall not, and shall not permit any Restricted Subsidiary to, Incur, directly or
indirectly, any Indebtedness; provided, however, that the Issuer or the Company
may Incur Indebtedness if on the date of such Incurrence and after giving effect
thereto, the Consolidated Coverage Ratio would be greater than 2.00 to 1 if such
Indebtedness is Incurred on or prior to June 15, 2003 and 2.25 to 1 if such
Indebtedness is Incurred thereafter.
(b) Notwithstanding Section 4.03(a), the Company and its
Restricted Subsidiaries may Incur the following Indebtedness:
(i) Bank Indebtedness (and Guarantees thereof) in an aggregate
principal amount not to exceed the greater of: (1) $300,000,000 less
the aggregate amount of all repayments of principal of such
Indebtedness pursuant to Section 4.06, and
36
(2) the sum of 85% of the book value of accounts receivable and 50% of
the book value of inventory of the Company and its Restricted
Subsidiaries, calculated on a consolidated basis and in accordance
with GAAP as of the date of the most recent publicly available
consolidated balance sheet of the Company;
(ii) Indebtedness of the Company owed to and held by any
Restricted Subsidiary or Indebtedness of a Restricted Subsidiary owed
to and held by the Company or any Restricted Subsidiary; provided,
however, that (1) any subsequent issuance or transfer of any Capital
Stock or any other event that results in any such Restricted Subsidiary
ceasing to be a Restricted Subsidiary or any subsequent transfer of any
such Indebtedness (except to the Company or a Restricted Subsidiary)
shall be deemed, in each case, to constitute the Incurrence of such
Indebtedness by the issuer thereof and (2) if the Issuer is the obligor
on such Indebtedness, such Indebtedness is expressly subordinated to
the prior payment in full in cash of all obligations with respect to
the Securities and (3) if the Company is the obligor on such
Indebtedness, such Indebtedness is expressly subordinated to the prior
payment in full in cash of all obligations of the Company with respect
to its Note Guarantee;
(iii) Indebtedness (1) represented by the Securities (not
including any Additional Securities) and the Note Guarantee, (2)
outstanding on the Closing Date (other than the Indebtedness described
in clauses (i) and (ii) above), (3) consisting of Refinancing
Indebtedness Incurred in respect of any Indebtedness described in this
clause (iii) (including Indebtedness that is Refinancing Indebtedness)
or Section 4.03(a) and (4) consisting of Guarantees of any Indebtedness
permitted under clauses (i) and (ii) of this paragraph (b);
(iv) (1) Indebtedness of a Restricted Subsidiary Incurred and
outstanding on or prior to the date on which such Restricted Subsidiary
was acquired by the Company (other than Indebtedness Incurred in
contemplation of, in connection with, as consideration in, or to
provide all or any portion of the funds or credit support utilized to
consummate, the transaction or series of related transactions pursuant
to which such Restricted Subsidiary became a Subsidiary of or was
otherwise acquired by the Company); provided, however, that on the date
that such Restricted Subsidiary is acquired by the Company, the Company
would have been able to Incur $1.00 of additional Indebtedness pursuant
to Section 4.03(a) after giving effect to the Incurrence of such
Indebtedness pursuant to this clause (iv) and (2) Refinancing
Indebtedness Incurred by a Restricted Subsidiary in respect of
Indebtedness Incurred by such Restricted Subsidiary pursuant to this
clause (iv);
(v) Indebtedness in respect of workers' compensation claims,
self-insurance obligations, completion guarantees, performance bonds,
bankers'
37
acceptances, letters of credit and performance, indemnity, surety or
appeal bonds and similar items provided or Incurred by the Company and
the Restricted Subsidiaries in the ordinary course of their business;
(vi) Purchase Money Indebtedness and Capitalized Lease
Obligations in an aggregate principal amount not in excess of
$50,000,000 at any time outstanding;
(vii) Indebtedness Incurred by a Receivables Entity in a
Qualified Receivables Transaction with respect to accounts receivable
of a Domestic Subsidiary that is not recourse to the Company or any
other Restricted Subsidiary of the Company (except for Standard
Securitization Undertakings) in an aggregate principal amount not to
exceed $100,000,000 at any time outstanding;
(viii) Indebtedness arising from agreements of the Company or
a Restricted Subsidiary providing for indemnification, contribution,
earnout, adjustment of purchase price or similar obligations, in each
case, incurred or assumed in connection with the disposition of any
business, assets or Capital Stock of a Restricted Subsidiary;
(ix) Indebtedness arising from the honoring by a bank or other
financial institution of a check, draft or similar instrument (except
in the case of daylight overdrafts) drawn against insufficient funds in
the ordinary course of business, provided, however, that such
Indebtedness is extinguished within 5 business days of Incurrence;
(x) Indebtedness of any Foreign Subsidiary (including any
Indebtedness Incurred by a Receivables Entity in a Qualified
Receivables Transaction with respect to accounts receivable of a
Foreign Subsidiary that is not recourse to the Company or any other
Restricted Subsidiary of the Company (except for Standard
Securitization Undertakings)) in an aggregate principal amount on the
date of Incurrence that, when added to all other Indebtedness Incurred
pursuant to this clause (x) and then outstanding, shall not exceed
$100,000,000; provided that immediately after giving effect to such
Incurrence of Indebtedness, the Company would be able to Incur at least
$1.00 of additional Indebtedness pursuant to Section 4.03(a);
(xi) Guarantees by the Company, the Issuer or a Restricted
Subsidiary of Indebtedness permitted to be Incurred by Restricted
Subsidiaries (other than Guarantees by a Restricted Subsidiary of
Indebtedness of the Issuer) pursuant to this Section 4.03; or
(xii) Indebtedness (other than Indebtedness permitted to be
Incurred pursuant to Section 4.03(a) or any other clause of this
Section 4.03(b)) in an
38
aggregate principal amount on the date of Incurrence that, when added
to all other Indebtedness Incurred pursuant to this clause (xii) and
then outstanding, shall not exceed $50,000,000.
(c) Notwithstanding the foregoing, the Company and its
Restricted Subsidiaries shall not Incur any Indebtedness pursuant to Section
4.03(b) above if the proceeds thereof are used, directly or indirectly, to
repay, prepay, redeem, defease, retire, refund or refinance any Subordinated
Obligations of the Company or the Issuer unless such Indebtedness shall be
subordinated to the Securities or the Note Guarantee, as applicable, to at least
the same extent as such Subordinated Obligations.
(d) Notwithstanding any other provision of this Section 4.03,
the maximum amount of Indebtedness that the Company or any Restricted Subsidiary
may Incur pursuant to this Section 4.03 shall not be deemed to be exceeded
solely as a result of fluctuations in the exchange rates of currencies. For
purposes of determining the outstanding principal amount of any particular
Indebtedness Incurred pursuant to this Section 4.03, (i) Indebtedness Incurred
pursuant to the Credit Agreement on or prior to the Closing Date shall be
treated as Incurred pursuant to Section 4.03(b)(i), (ii) Indebtedness permitted
by this Section 4.03 need not be permitted solely by reference to one provision
permitting such Indebtedness but may be permitted in part by one such provision
and in part by one or more other provisions of this Section permitting such
Indebtedness and (iii) in the event that Indebtedness meets the criteria of more
than one of the types of Indebtedness described in this Section 4.03, the
Issuer, in its sole discretion, shall classify such Indebtedness and only be
required to include the amount of such Indebtedness in one of such clauses.
(e) Notwithstanding any other paragraph of this Section 4.03,
the Company shall not permit any Restricted Subsidiary to Incur any Funded Debt,
except for (i) Funded Debt Incurred pursuant to Section 4.03(b)(iii)(2) or (3),
(ii) Funded Debt Incurred pursuant to Section 4.03(b)(iv) (without giving effect
to the proviso thereto after the Fall- Away Date), (iii) Funded Debt consisting
of Purchase Money Indebtedness and Refinancing Indebtedness Incurred in respect
of such Purchase Money Indebtedness Incurred pursuant to Section 4.03(b)(vi)
(without giving effect to the cap therein after the Fall-Away Date), (iv) Funded
Debt consisting of Indebtedness Incurred pursuant to Section 4.03(b)(ii) or
(vii) and (v) Funded Debt in an aggregate principal amount which, together with
(without duplication) (1) the aggregate principal amount of all other Funded
Debt of the Restricted Subsidiaries (other than Funded Debt permitted to be
Incurred under clauses (i) through (iv) of this clause (e) above), (2) the
aggregate principal amount of all Secured Debt of the Company and the Restricted
Subsidiaries (other than Indebtedness permitted to be secured under Section
4.14(a)(i) through (ix)), and (3) the aggregate Value of Sale/Leaseback
Transactions of the Company and its Restricted Subsidiaries (other than
Sale/Leaseback Transactions permitted under Section 4.15(a)) does not at such
time exceed 15% of Consolidated Net Tangible Assets of the Issuer.
39
SECTION 4.04. Limitation on Restricted Payments. (a) The
Company shall not, and shall not permit any Restricted Subsidiary, directly or
indirectly, to (i) declare or pay any dividend or make any distribution on or in
respect of its Capital Stock or make any similar payment (including any payment
in connection with any merger or consolidation involving the Company or any
Subsidiary of the Company) to the direct or indirect holders of its Capital
Stock except (x) dividends or distributions payable solely in Capital Stock of
the Company or its Restricted Subsidiaries (other than Disqualified Stock or
Preferred Stock) and (y) dividends or distributions payable to the Company or a
Restricted Subsidiary (and, if such Restricted Subsidiary has shareholders other
than the Company or other Restricted Subsidiaries, to its other shareholders on
a pro rata basis), (ii) purchase, repurchase, redeem, retire or otherwise
acquire for value any Capital Stock of the Company or any Restricted Subsidiary
held by Persons other than the Company or a Restricted Subsidiary,
(iii) purchase, repurchase, redeem, retire, defease or otherwise acquire for
value, prior to scheduled maturity, scheduled repayment or scheduled sinking
fund payment any Subordinated Obligations (other than the purchase, repurchase,
redemption, retirement, defeasance or other acquisition for value of
Subordinated Obligations acquired in anticipation of satisfying a sinking fund
obligation, principal installment or final maturity, in each case due within one
year of the date of acquisition or Subordinated Obligations held by the Company
or any Restricted Subsidiary) or (iv) make any Investment (other than a
Permitted Investment) in any Person (any such dividend, distribution, payment,
purchase, redemption, repurchase, defeasance, retirement or other acquisition or
Investment being herein referred to as a "Restricted Payment") if at the time
the Company or such Restricted Subsidiary makes such Restricted Payment:
(1) a Default shall have occurred and be continuing (or would
result therefrom);
(2) the Company could not Incur at least $1.00 of additional
Indebtedness under Section 4.03(a); or
(3) the aggregate amount of such Restricted Payment and all
other Restricted Payments (the amount so expended, if other than in
cash, to be determined in good faith by the Board of Directors of the
Company, whose determination shall be conclusive and evidenced by a
resolution of the Board of Directors of the Company) declared or made
subsequent to the Closing Date would exceed the sum, without
duplication, of:
(A) 50% of the Consolidated Net Income accrued during
the period (treated as one accounting period) from the
beginning of the fiscal quarter immediately following the
fiscal quarter during which the Closing Date occurs to the end
of the most recent fiscal quarter for which consolidated
financial statements of the Company are publicly available
prior to the
40
date of such Restricted Payment (or, in case such
Consolidated Net Income shall be a deficit, minus 100% of
such deficit);
(B) the aggregate Net Cash Proceeds received by the
Company from the issue or sale of its Capital Stock (other
than Disqualified Stock) subsequent to the Closing Date (other
than an issuance or sale to (x) a Subsidiary of the Company or
(y) an employee stock ownership plan or other trust
established by the Company or any of its Subsidiaries);
(C) the amount by which Indebtedness of the Company
or its Restricted Subsidiaries is reduced on the Company's
balance sheet upon the conversion or exchange (other than by a
Subsidiary of the Company) subsequent to the Closing Date of
any Indebtedness of the Company or its Restricted Subsidiaries
issued after the Closing Date which is convertible or
exchangeable for Capital Stock (other than Disqualified Stock)
of the Company (less the amount of any cash or the Fair Market
Value of other property distributed by the Company or any
Restricted Subsidiary upon such conversion or exchange);
(D) the amount equal to the net reduction in
Investments in Unrestricted Subsidiaries resulting from (x)
payments of dividends, repayments of the principal of loans or
advances or other transfers of assets to the Company or any
Restricted Subsidiary from Unrestricted Subsidiaries or (y)
the redesignation of Unrestricted Subsidiaries as Restricted
Subsidiaries (valued in each case as provided in the
definition of "Investment") not to exceed, in the case of any
Unrestricted Subsidiary, the amount of Investments previously
made by the Company or any Restricted Subsidiary in such
Unrestricted Subsidiary, which amount was included in the
calculation of the amount of Restricted Payments;
(E) an amount equal to 50% of the cash distributions
received by the Company or any of its Restricted Subsidiaries
from Equistar during the period (treated as one accounting
period) from the beginning of the fiscal quarter during which
the Closing Date occurs to the end of the most recent fiscal
quarter for which consolidated financial statements of the
Company are publicly available prior to the date of such
Restricted Payment; and
(F) $40,000,000.
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(b) The provisions of Section 4.04(a) shall not prohibit any
Permitted Investment or:
(i) any purchase, repurchase, redemption, retirement or other
acquisition for value of Capital Stock of the Company made by exchange
for, or out of the proceeds of the sale within 30 days of, Capital
Stock of the Company (other than Disqualified Stock and other than
Capital Stock issued or sold to a Subsidiary of the Company or an
employee stock ownership plan or other trust established by the Company
or any of its Subsidiaries); provided, however, that (1) such purchase,
repurchase, redemption, retirement or other acquisition for value shall
be excluded in the calculation of the amount of Restricted Payments and
(2) the Net Cash Proceeds from such sale applied in the manner set
forth in this clause (i) shall be excluded from the calculation of
amounts under Section 4.04(a)(3)(B);
(ii) any prepayment, repayment, purchase, repurchase,
redemption, retirement, defeasance or other acquisition for value of
Subordinated Obligations of the Company or the Issuer made by exchange
for, or out of the proceeds of the sale within 30 days of, Indebtedness
of the Company or the Issuer that is permitted to be Incurred pursuant
to Section 4.03(b); provided, however, that such prepayment, repayment,
purchase, repurchase, redemption, retirement, defeasance or other
acquisition for value shall be excluded in the calculation of the
amount of Restricted Payments;
(iii) any prepayment, repayment, purchase, repurchase,
redemption, retirement, defeasance or other acquisition for value of
Subordinated Obligations of the Company or the Issuer from Net
Available Cash to the extent permitted by Section 4.06; provided,
however, that such prepayment, repayment, purchase, repurchase,
redemption, retirement, defeasance or other acquisition for value shall
be excluded in the calculation of the amount of Restricted Payments;
(iv) dividends paid within 90 days after the date of
declaration thereof if at such date of declaration such dividends would
have complied with Section 4.04(a); provided, however, that such
dividends shall be included in the calculation of the amount of
Restricted Payments;
(v) any purchase, repurchase, redemption, retirement or other
acquisition for value of shares of, or options to purchase shares of,
common stock of the Company or any of its Subsidiaries from employees,
former employees, directors or former directors of the Company or any
of its Subsidiaries (or permitted transferees of such employees, former
employees, directors or former directors), pursuant to the terms of the
agreements (including employment agreements) or plans (or amendments
thereto) approved by the Board of Directors of the Company under which
such individuals purchase or sell or are granted the option
42
to purchase or sell, shares of such common stock; provided, however,
that the aggregate amount of such purchases, repurchases, redemptions,
retirements and other acquisition for value permitted under this clause
(v) shall not exceed $5,000,000 in any calendar year; provided further,
however, that such amount permitted under this clause (v) in any
calendar year may be increased by up to $5,000,000 of cash proceeds
received by the Company or any of its Restricted Subsidiaries in such
calendar year from the sale of Capital Stock of the Company (other than
Disqualified Stock) to employees or directors of the Company or its
Subsidiaries (or trusts for the benefit of such persons), provided that
such cash proceeds so applied will be excluded from the calculation of
amounts under Section 4.04(a)(3)(B); provided further, however, that
such purchases, repurchases, redemptions, retirements and other
acquisitions for value shall be included in the calculation of the
amount of Restricted Payments;
(vi) the declaration and payment of dividends to holders of
any class or series of Disqualified Stock of the Company issued in
accordance with the terms of this Indenture; provided that the payment
of such dividends will be excluded from the calculation of Restricted
Payments;
(vii) repurchases of Capital Stock (or warrants or options
convertible into or exchangeable for such Capital Stock) deemed to
occur upon the exercise of warrants or stock options if such Capital
Stock (or warrants or options convertible into or exchangeable for such
Capital Stock) represents a portion of the exercise price thereof,
provided, however, that such repurchases will be excluded from the
calculation of the amount of Restricted Payments;
(viii) Investments in Equistar that the Company is required to
make pursuant to the Equistar Partnership Agreement on terms no less
favorable to the Company than those in effect on the Closing Date in an
amount not to exceed $30,000,000 in any calendar year and $100,000,000
over any five calendar year period; provided, however, that in the
event that Investments in Equistar by the Company or any of its
Restricted Subsidiaries are required without the consent of the Company
in accordance with the Equistar Partnership Agreement as in effect on
the Closing Date (or on terms no less favorable to the Company than as
in effect on the Closing Date) to achieve or maintain compliance with
any HSE Law (as defined in the Asset Contribution Agreement as in
effect on the Closing Date) and such Investments, if made, would exceed
the annual cap set forth in this clause (viii) above in the calender
year in which they are required to be made, then such annual cap (but
not the five year cap set forth in this clause (viii) above) may be
exceeded; provided that if such Investment, taken together with all
other Investments made at any time pursuant to this clause (viii),
exceeds $30,000,000, at the time of making such Investment the Company
would be able to Incur at least $1.00 of additional Indebtedness
pursuant to Section 4.03(a); provided,
43
further, that such Investments will be included in the calculation of
Restricted Payments; and
(ix) other Restricted Payments in an aggregate amount not to
exceed $20,000,000; provided, however, that such Restricted Payments
shall be excluded from the calculation of Restricted Payments.
SECTION 4.05. Limitation on Restrictions on Distributions from
Restricted Subsidiaries. The Company shall not, and shall not permit any
Restricted Subsidiary to, create or otherwise cause or permit to exist or become
effective any consensual encumbrance or restriction on the ability of any
Restricted Subsidiary to (a) pay dividends or make any other distributions on
its Capital Stock or pay any Indebtedness or other obligations owed to the
Company or the Issuer, (b) make any loans or advances to the Company or the
Issuer or (c) transfer any of its property or assets to the Company or the
Issuer.
The preceding provisions will not prohibit:
(i) any encumbrance or restriction pursuant to applicable law
or an agreement in effect at or entered into on the Closing Date
(including, without limitation, this Indenture and the Credit
Agreement);
(ii) any encumbrance or restriction with respect to a
Restricted Subsidiary existing prior to the date on which such
Restricted Subsidiary was acquired by the Company (other than any
encumbrance or restriction with respect to any obligation or
Indebtedness Incurred as consideration in, in contemplation of, or to
provide all or any portion of the funds or credit support utilized to
consummate the transaction or series of related transactions pursuant
to which such Restricted Subsidiary became a Restricted Subsidiary or
was otherwise acquired by the Company) and outstanding on such date;
(iii) any encumbrance or restriction pursuant to an agreement
effecting a Refinancing of Indebtedness Incurred pursuant to an
agreement referred to in clause (i) or (ii) of this Section 4.05 or
this clause (iii) or contained in any amendment to an agreement
referred to in clause (i) or (ii) of this Section 4.05 or this clause
(iii); provided, however, that the encumbrances and restrictions
contained in any such Refinancing agreement or amendment are no less
favorable in any material respect to the Holders than the encumbrances
and restrictions contained in such predecessor agreements;
(iv) in the case of clause (c), any encumbrance or restriction
(1) that restricts in a customary manner the subletting, assignment or
transfer of any property or asset that is subject to a lease, license
or similar contract or
44
(2) contained in any mortgage, pledge or security agreements securing
Indebtedness of a Restricted Subsidiary to the extent such encumbrance
or restriction restricts the transfer of the property subject to such
security agreements and (3) pursuant to customary provisions
restricting dispositions of real property interests set forth in any
reciprocal easement agreements of the Company or any Restricted
Subsidiary;
(v) with respect to a Restricted Subsidiary, any restriction
imposed pursuant to an agreement entered into for the sale or
disposition of assets of, or all or substantially all the Capital Stock
of, such Restricted Subsidiary pending the closing of such sale or
disposition;
(vi) any encumbrance or restriction existing under or by
reason of Indebtedness or other contractual requirements of a
Receivables Entity in connection with a Qualified Receivables
Transaction; provided that such restrictions apply only to such
Receivables Entity;
(vii) in the case of clause (c), Purchase Money Indebtedness,
Capital Lease Obligations, industrial revenue or similar bonds, or
operating leases or similar transactions Incurred in compliance with
this Indenture that impose encumbrances or restrictions on the property
so acquired or covered thereby;
(viii) encumbrances or restrictions arising or existing by
reason of applicable law or any applicable rule, regulation or order of
any foreign or domestic government agency or court;
(ix) encumbrances existing under this Indenture and the
Securities;
(x) any encumbrance or restriction on cash or other deposits
or net worth imposed by customers under contracts entered into in the
ordinary course of business;
(xi) encumbrances or restrictions existing under or by reason
of provisions with respect to the disposition or distribution of assets
or property in joint venture agreements and other similar agreements
entered into in the ordinary course of business, so long as such
encumbrances or restrictions are not applicable to any Person (or its
property or assets) other than such joint venture or a Subsidiary
thereof;
(xii) in the case of clause (c), any Lien Incurred in
compliance with Section 4.14; and
45
(xiii) customary restrictions imposed on the transfer of
intellectual property in the ordinary course of business.
SECTION 4.06. Limitation on Sales of Assets and Subsidiary
Stock. (a) The Company shall not, and shall not permit any Restricted Subsidiary
to, make any Asset Disposition unless (i) the Company or such Restricted
Subsidiary receives consideration (including by way of relief from, or by any
other Person assuming sole responsibility for, any liabilities, contingent or
otherwise) at the time of such Asset Disposition at least equal to the Fair
Market Value (determined either at the date of such Asset Disposition or at the
date of the agreement providing for such Asset Disposition) of the shares and
assets subject to such Asset Disposition, (ii) at least 75% of the consideration
thereof received by the Company or such Restricted Subsidiary is in the
form of cash, and (iii) an amount equal to 100% of the Net Available Cash from
such Asset Disposition is applied by the Company (or such Restricted Subsidiary,
as the case may be) (1) first, to the extent the Company elects (or is required
by the terms of any Indebtedness), to prepay, repay, purchase, repurchase,
redeem, retire, defease or otherwise acquire for value Bank Indebtedness of the
Company or the Issuer or Indebtedness (other than obligations in respect of
Preferred Stock) of a Wholly Owned Subsidiary other than the Issuer (in each
case other than Indebtedness owed to the Company or an Affiliate of the Company
and other than obligations in respect of Disqualified Stock) within 360 days
after the later of the date of such Asset Disposition or the receipt of such Net
Available Cash; (2) second, to the extent of the balance of Net Available Cash
after application in accordance with clause (1), to the extent the Company or
such Restricted Subsidiary elects, to reinvest in Additional Assets (including
by means of an Investment in Additional Assets by a Restricted Subsidiary with
Net Available Cash received by the Company or another Restricted Subsidiary)
within 360 days from the later of such Asset Disposition or the receipt of such
Net Available Cash; (3) third, to the extent of the balance of such Net
Available Cash after application in accordance with clauses (1) and (2), to make
an Offer (as defined in Section 4.06(b)) to purchase Securities pursuant to and
subject to the conditions of Section 4.06(b); provided, however, that if the
Issuer elects (or is required by the terms of any other Senior Indebtedness),
such Offer may be made ratably to purchase the Securities and other Senior
Indebtedness of the Company or the Issuer, and (4) fourth, to the extent of the
balance of such Net Available Cash after application in accordance with clauses
(1), (2) and (3), for any general corporate purpose permitted by the terms of
this Indenture; provided, however, that in connection with any prepayment,
repayment, purchase, repurchase, redemption, retirement, defeasance or other
acquisition for value of Indebtedness pursuant to clause (1), (2) or (4) above,
the Company or such Restricted Subsidiary shall retire such Indebtedness and
shall cause the related loan commitment (if any) to be permanently reduced in an
amount equal to the principal amount so prepaid, repaid, purchased, repurchased,
redeemed, retired, defeased or otherwise acquired for value. Notwithstanding the
foregoing provisions of this Section 4.06, the Company and the Restricted
Subsidiaries shall not be required to apply
46
any Net Available Cash in accordance with this Section 4.06(a) except to the
extent that the aggregate Net Available Cash from all Asset Dispositions that is
not applied in accordance with this Section 4.06(a) exceeds $5,000,000.
For the purposes of this Section 4.06, the following are
deemed to be cash: (A) the assumption of Indebtedness of the (i) Issuer (other
than obligations in respect of Disqualified Stock of the Issuer) or (ii) the
Company or any Restricted Subsidiary other than the Issuer (other than
obligations in respect of Disqualified Stock and Preferred Stock of the Company)
and the release of the Issuer, the Company or such Restricted Subsidiary from
all liability on such Indebtedness in connection with such Asset Disposition (it
being understood that the assumption of the Issuer's Guarantee of Indebtedness
of Equistar in effect on the Closing Date shall be valued as $0 for the purposes
of complying with Section 4.06(a)(ii)) and (B) securities received by the
Company or any Restricted Subsidiary from the transferee that are converted,
sold or exchanged within 30 days of receipt by the Company or such Restricted
Subsidiary into cash to the extent of the cash received.
(b) In the event of an Asset Disposition that requires the
purchase of Securities pursuant to Section 4.06(a)(iii)(3), the Issuer shall be
required (i) to purchase Securities tendered pursuant to an offer by the Issuer
for the Securities (the "Offer") at a purchase price of 100% of their principal
amount plus accrued and unpaid interest and liquidated damages thereon, if any,
to the date of purchase (subject to the right of Holders of record on the
relevant record date to receive interest due on the relevant interest payment
date) in accordance with the procedures (including prorating in the event of
oversubscription) set forth in Section 4.06(c) and (ii) to purchase other Senior
Indebtedness of the Issuer or the Company on the terms and to the extent
contemplated thereby (provided that in no event shall the Issuer offer to
purchase such other Senior Indebtedness of the Issuer or the Company at a
purchase price in excess of 100% of its principal amount (without premium), plus
accrued and unpaid interest thereon. If the aggregate purchase price of
Securities (and other Senior Indebtedness) tendered pursuant to the Offer is
less than the Net Available Cash allotted to the purchase of the Securities (and
other Senior Indebtedness), the Issuer shall apply the remaining Net Available
Cash in accordance with Section 4.06(a)(iii)(4). The Issuer shall not be
required to make an Offer for Securities (and other Senior Indebtedness)
pursuant to this Section 4.06 if the Net Available Cash available therefor
(after application of the proceeds as provided in clauses (1) and (2) of Section
4.06(a)(iii)) is less than $5,000,000 for any particular Asset Disposition
(which lesser amount shall be carried forward for purposes of determining
whether an Offer is required with respect to the Net Available Cash from any
subsequent Asset Disposition).
(c) (i) Promptly, and in any event within 10 days after the
Issuer becomes obligated to make an Offer, the Issuer shall be obligated to
deliver to the Trustee and send, by first-class mail to each Holder, a written
notice stating that the Holder may elect
47
to have his Securities purchased by the Issuer either in whole or in part
(subject to prorating as hereinafter described in the event the Offer is
oversubscribed) in integral multiples of $1,000 of principal amount, at the
applicable purchase price. The notice shall specify a purchase date not less
than 30 days nor more than 60 days after the date of such notice (the "Purchase
Date") and shall contain such information concerning the business of the Issuer
and the Company which the Issuer and the Company in good faith believe will
enable such Holders to make an informed decision (which at a minimum shall
include (1) the most recently filed Annual Report on Form 10-K (including
audited consolidated financial statements) of the Company, the most recent
subsequently filed Quarterly Report on Form 10-Q and any Current Report on Form
8-K of the Company filed subsequent to such Quarterly Report, other than Current
Reports describing Asset Dispositions otherwise described in the offering
materials (or corresponding successor reports), (2) a description of material
developments in the Company's and the Issuer's business subsequent to the date
of the latest of such reports, and (3) if material, appropriate pro forma
financial information) and all instructions and materials necessary to tender
Securities pursuant to the Offer, together with the address referred to in
clause (iii).
(ii) Not later than the date upon which written notice of an
Offer is delivered to the Trustee as provided above, the Issuer shall deliver to
the Trustee an Officers' Certificate as to (1) the amount of the Offer (the
"Offer Amount"), (2) the allocation of the Net Available Cash from the Asset
Dispositions pursuant to which such Offer is being made and (3) the compliance
of such allocation with the provisions of Section 4.06(a). On such date, the
Issuer shall also irrevocably deposit with the Trustee or with a paying agent
(or, if the Issuer is acting as its own paying agent, segregate and hold in
trust) an amount equal to the Offer Amount to be invested pursuant to the
written direction of the Issuer in Temporary Cash Investments and to be held
until required to be liquidated so that the proceeds thereof shall be available
for payment in accordance with the provisions of this Section. Upon the
expiration of the period for which the Offer remains open (the "Offer Period"),
the Issuer shall deliver to the Trustee for cancelation the Securities or
portions thereof that have been properly tendered to and are to be accepted by
the Issuer. The Trustee (or the Paying Agent, if not the Trustee) shall, on the
date of purchase, mail or deliver payment to each tendering Holder in the amount
of the purchase price. In the event that the Offer Amount delivered by the
Issuer to the Trustee is greater than the purchase price of the Securities and
other Senior Indebtedness tendered, the Trustee shall deliver the excess to the
Issuer promptly after the expiration of the Offer Period for application in
accordance with this Section 4.06.
(iii) Holders electing to have a Security purchased shall be
required to surrender the Security, with an appropriate form duly completed, to
the Issuer at the address specified in the notice at least three Business Days
prior to the Purchase Date. Holders shall be entitled to withdraw their election
if the Trustee or the Issuer receives not later than one Business Day prior to
the Purchase Date, a telegram, telex, facsimile
48
transmission or letter setting forth the name of the Holder, the principal
amount of the Security which was delivered by the Holder for purchase and a
statement that such Holder is withdrawing his election to have such Security
purchased. If at the expiration of the Offer Period the aggregate principal
amount of Securities and any other Senior Indebtedness included in the Offer
surrendered by holders thereof exceeds the Offer Amount, the Issuer shall select
the Securities and other Senior Indebtedness to be purchased on a pro rata basis
(with such adjustments as may be deemed appropriate by the Issuer so that only
Securities and other Senior Indebtedness in denominations of $1,000, or integral
multiples thereof, shall be purchased). Holders whose Securities are purchased
only in part will be issued new Securities equal in principal amount to the
unpurchased portion of the Securities surrendered.
(iv) At the time the Issuer delivers Securities to the Trustee
which are to be accepted for purchase, the Issuer shall also deliver an
Officers' Certificate stating that such Securities are to be accepted by the
Issuer pursuant to and in accordance with the terms of this Section. A Security
shall be deemed to have been accepted for purchase at the time the Trustee,
directly or through an agent, mails or delivers payment therefor to the
surrendering Holder.
(v) The Issuer shall comply, to the extent applicable, with
the requirements of Section 14(e) of the Exchange Act and any other securities
laws or regulations in connection with the repurchase of Securities pursuant to
this Section. To the extent that the provisions of any securities laws or
regulations conflict with provisions of this Section, the Issuer shall comply
with the applicable securities laws and regulations and shall not be deemed to
have breached its obligations under this Section by virtue thereof.
SECTION 4.07. Limitation on Transactions with Affiliates. (a)
The Company shall not, and shall not permit any Restricted Subsidiary to,
directly or indirectly, enter into or conduct any transaction or series of
related transactions (including, the purchase, sale, lease or exchange of any
property or the rendering of any service) with any Affiliate of the Company (an
"Affiliate Transaction") unless such Affiliate Transaction is on terms (i) that
are not materially less favorable to the Company or such Restricted Subsidiary,
as the case may be, than those that could be obtained at the time of such
transaction in arm's-length dealings with a Person who is not such an Affiliate,
(ii) that, in the event that such Affiliate Transaction involves an aggregate
amount in excess of $10,000,000, (1) are set forth in writing and (2) have been
approved by a majority of the members of the Board of Directors of the Company
having no personal stake in such Affiliate Transaction and (iii) that, in the
event that such Affiliate Transaction involves an amount in excess of
$25,000,000, have been determined by a nationally recognized appraisal or
investment banking firm to be fair, from a financial standpoint, to the Company
and its Restricted Subsidiaries.
49
(b) The provisions of Section 4.07(a) shall not prohibit or
apply to (i) any Restricted Payment permitted to be paid pursuant to Section
4.04, (ii) any issuance of securities, or other payments, awards or grants in
cash, securities or otherwise pursuant to, or the funding of, employment
arrangements, stock options, stock ownership and other incentive compensation
plans approved by the Board of Directors of the Company, (iii) the payment of
reasonable fees to, and indemnity provided on behalf of, directors, officer and
employees of the Company and its Subsidiaries, (iv) any transaction between the
Company and a Restricted Subsidiary or between Restricted Subsidiaries, (v)
transactions by the Company or any Restricted Subsidiary with Equistar or any
Subsidiary thereof pursuant to any agreement as in effect as of the Closing Date
or any amendment thereto or any similar agreement entered into after the Closing
Date; provided, however, that any future amendment to such existing agreement or
any such similar agreement shall not be permitted by this clause (v) to the
extent that the terms of any such amendment or similar agreement are materially
less favorable to the Company, any of its Restricted Subsidiaries or the Holders
of the Securities in any material respect, (vi) any transaction by the Company
or any Restricted Subsidiary with Equistar or any Subsidiary thereof that, taken
as a whole with any other transactions by the Company or any Restricted
Subsidiary with Equistar or any of its Subsidiaries that is entered into prior
to or substantially concurrently with such transaction, is on terms that are not
materially less favorable to the Company or such Restricted Subsidiary than
those that could be obtained at the time of such transactions in arm's-length
dealings with a Person which is not an Affiliate of the Company, or (vii) any
transaction effected as part of a Qualified Receivables Transaction.
SECTION 4.08. Change of Control. (a) Upon a Change of Control,
each Holder shall have the right to require the Issuer to purchase all or any
part (equal to $1,000 or an integral multiple thereof) of such Holder's
Securities at a purchase price in cash equal to 101% of the principal amount
thereof plus accrued and unpaid interest and liquidated damages, if any, to the
date of purchase (subject to the right of Holders of record on the relevant
record date to receive interest and liquidated damages, if any, due on the
relevant interest payment date), in accordance with the terms contemplated in
Section 4.08(b). In the event that at the time of such Change of Control the
terms of the Bank Indebtedness restrict or prohibit the repurchase of Securities
pursuant to this Section 4.08, then prior to the mailing of the notice to
Holders provided for in Section 4.08(b) below but in any event within 30 days
following any Change of Control, the Issuer shall (i) repay in full all Bank
Indebtedness or, if doing so will allow the purchase of Securities, offer to
repay in full all Bank Indebtedness and repay the Bank Indebtedness of each
lender who has accepted such offer or (ii) obtain the requisite consent under
the agreements governing the Bank Indebtedness to permit the repurchase of the
Securities as provided for in Section 4.08(b).
50
(b) Within 30 days following any Change of Control, the Issuer
shall mail a notice to each Holder with a copy to the Trustee (the "Change of
Control Offer") stating:
(i) that a Change of Control has occurred and that such Holder
has the right to require the Issuer to purchase all or a portion of
such Holder's Securities at a purchase price in cash equal to 101% of
the principal amount thereof, plus accrued and unpaid interest and
liquidated damages, if any, to the date of purchase (subject to the
right of Holders of record on the relevant record date to receive
interest and liquidated damages, if any, on the relevant interest
payment date);
(ii) the circumstances and relevant facts and financial
information regarding such Change of Control;
(iii) the purchase date (which shall be no earlier than 30
days nor later than 60 days from the date such notice is mailed); and
(iv) the instructions determined by the Issuer, consistent
with this Indenture, that a Holder must follow in order to have its
Securities purchased.
(c) Holders electing to have a Security purchased shall be
required to surrender the Security, with an appropriate form duly completed, to
the Issuer at the address specified in the notice at least three Business Days
prior to the purchase date. Holders shall be entitled to withdraw their election
if the Trustee or the Issuer 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 Security which was
delivered for purchase by the Holder and a statement that such Holder is
withdrawing his election to have such Security purchased. Holders whose
Securities are purchased only in part shall be issued new Securities equal in
principal amount to the unpurchased portion of the Securities surrendered.
(d) On the purchase date, all Securities purchased by the
Issuer under this Section shall be delivered to the Trustee for cancelation, and
the Issuer shall pay the purchase price plus accrued and unpaid interest and
liquidated damages, if any, to the Holders entitled thereto.
(e) Notwithstanding the foregoing provisions of this Section,
the Issuer shall not 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 Section
4.08(b) applicable to a Change of Control Offer made by the Issuer and purchases
all Securities validly tendered and not withdrawn under such Change of Control
Offer.
51
(f) At the time the Issuer delivers Securities to the Trustee
which are to be accepted for purchase, the Issuer shall also deliver an
Officers' Certificate stating that such Securities are to be accepted by the
Issuer pursuant to and in accordance with the terms of this Section 4.08. A
Security shall be deemed to have been accepted for purchase at the time the
Trustee, directly or through an agent, mails or delivers payment therefor to the
surrendering Holder.
(g) Prior to any Change of Control Offer, the Issuer shall
deliver to the Trustee an Officers' Certificate stating that all conditions
precedent contained herein to the right of the Issuer to make such offer have
been complied with.
(h) The Issuer shall comply, to the extent applicable, with
the requirements of Section 14(e) of the Exchange Act and any other securities
laws or regulations in connection with the repurchase of Securities pursuant to
this Indenture. To the extent that the provisions of any securities laws or
regulations conflict with provisions of this Indenture, the Issuer shall comply
with the applicable securities laws and regulations and shall not be deemed to
have breached its obligations under this Indenture by virtue thereof.
SECTION 4.09. Compliance Certificate. The Issuer shall deliver
to the Trustee within 120 days after the end of each fiscal year of the Issuer
an Officers' Certificate stating that in the course of the performance by the
signers of their duties as Officers of the Issuer they would normally have
knowledge of any Default and whether or not the signers know of any Default that
occurred during that fiscal year. If they do, the certificate shall describe the
Default, its status and what action the Issuer is taking or proposes to take
with respect thereto. The Company and the Issuer also shall comply with Section
314(a)(4) of the TIA.
SECTION 4.10. Further Instruments and Acts. Upon request of
the Trustee, the Issuer shall execute and deliver such further instruments and
do such further acts as may be reasonably necessary or proper to carry out more
effectively the purpose of this Indenture.
SECTION 4.11. Additional Amounts. (a) All payments made under
or with respect to the Securities and the Note Guarantee shall be made free and
clear of and without withholding or deduction for or on account of any present
or future tax, duty, levy, impost, assessment or other governmental charge
(including penalties, interest and other liabilities related thereto)
(hereinafter "Taxes") imposed or levied by or on behalf of the government of the
United Kingdom or any political subdivision or any authority or agency therein
or thereof having power to tax, or within any other jurisdiction in which we are
organized or are otherwise resident for tax purposes or any jurisdiction from or
through which payment is made (in each case, other than the United States or any
political subdivision or taxing authority thereof) (each a "Relevant Taxing
Jurisdiction"),
52
unless the Issuer or the Company is required to withhold or deduct Taxes by law
or by the interpretation or administration thereof.
(b) If the Issuer or the Company is so required to withhold or
deduct any amount for or on account of Taxes imposed by a Relevant Taxing
Jurisdiction from any payment made under or with respect to the Securities or
the Note Guarantee, the Issuer or the Company shall pay such additional amounts
("Additional Amounts") as may be necessary so that the net amount received by
the Holders (including Additional Amounts) after such withholding or deduction
will not be less than the amount the Holders would have received if such Taxes
had not been withheld or deducted; provided, however, that the foregoing
obligation to pay Additional Amounts does not apply to (i) any Taxes that would
not have been so imposed but for the existence of any present or former
connection between the relevant Holder (or between a fiduciary, settlor,
beneficiary, member or shareholder of, or possessor of power over the relevant
Holder, if the relevant Holder is an estate, nominee, trust or corporation) and
the Relevant Taxing Jurisdiction (other than the mere receipt of such payment or
the ownership or holding outside of the Relevant Taxing Jurisdiction of such
Securities); or (ii) any estate, inheritance, gift, sales, excise, transfer,
personal property tax or similar tax, assessment or governmental charge; nor
shall the Issuer or the Company be required to pay Additional Amounts (1) if the
payment could have been made without such deduction or withholding if the
beneficiary of the payment had presented the Security for payment within 30 days
after the date on which such payment or such Securities became due and payable
or the date on which payment thereof is duly provided for, whichever is later
(except to the extent that the Holder would have been entitled to Additional
Amounts had the Securities been presented on the last day of such 30 day
period), or (2) with respect to any payment of principal of (or premium, if any,
on) or interest on such Securities to any Holder who is a fiduciary or
partnership or any person other than the sole beneficial owner of such payment,
to the extent that a beneficiary or settlor with respect to such fiduciary, a
member of such a partnership or the beneficial owner of such payment would not
have been entitled to the Additional Amounts had such beneficiary, settlor,
member or beneficial owner been the actual Holder of such Securities.
(c) Upon request, the Issuer or the Company shall provide the
Trustee with official receipts or other documentation satisfactory to the
Trustee evidencing the payment of the Taxes with respect to which Additional
Amounts are paid.
(d) Whenever in this Indenture there is mentioned, in any
context: (I) the payment of principal; (ii) purchase prices in connection with a
purchase of Securities; (iii) interest; or (iv) any other amount payable on or
with respect to any of the Securities, such reference shall be deemed to include
payment of Additional Amounts provided for in this Section 4.11 to the extent
that, in such context, Additional Amounts are, were or would be payable in
respect thereof.
53
(e) The Issuer or the Company shall pay any present or future
stamp, court or documentary taxes or any other excise or property taxes, charges
or similar levies that arise in any jurisdiction from the execution, delivery,
enforcement or registration of the Securities, the Note Guarantee, this
Indenture or any other document or instrument in relation thereof, or the
receipt of any payments with respect to the Securities or the Note Guarantee,
excluding such taxes, charges or similar levies imposed by any jurisdiction
outside of the United Kingdom, the jurisdiction of incorporation of any
successor of the Company or any jurisdiction in which a paying agent is located,
and we will agree to indemnify the Holders for any such taxes paid by such
Holders.
(f) The obligations described under this Section 4.11 shall
survive any termination, defeasance or discharge of this Indenture and shall
apply mutatis mutandis to any jurisdiction in which any successor Person to the
Company is organized or any political subdivision or taxing authority or agency
thereof or therein (other than the United States or any political subdivision or
taxing authority thereof).
SECTION 4.12. Limitation on Lines of Business. The Company
shall not, and shall not permit any Restricted Subsidiary to, engage in any
business, other than a Permitted Business; provided, however, that the Company
or any of its Restricted Subsidiaries may acquire any Person or business which
is primarily engaged in a Permitted Business notwithstanding that such Person or
business also engages in a business which is not a Permitted Business.
SECTION 4.13. Limitation on the Sale or Issuance of Capital
Stock of Restricted Subsidiaries. The Company shall not sell or otherwise
dispose of any shares of Capital Stock of a Restricted Subsidiary (other than
shares of Capital Stock constituting up to 5% of the outstanding shares of
Capital Stock of La Porte Methanol Company), and shall not permit any Restricted
Subsidiary, directly or indirectly, to issue or sell or otherwise dispose of any
shares of its Capital Stock except: (a) to the Company or a Restricted
Subsidiary; (b) if, immediately after giving effect to such issuance, sale or
other disposition, neither the Company nor any of its Subsidiaries own any
Capital Stock of such Restricted Subsidiary; (c) if, immediately after giving
effect to such issuance, sale or other disposition, such Restricted Subsidiary
would no longer constitute a Restricted Subsidiary and any Investment in such
Person remaining after giving effect thereto would have been permitted to be
made under Section 4.04 if made on the date of such issuance, sale or other
disposition (and such Investment shall be deemed to be an Investment for the
purposes of such covenant) or (d) if, immediately after giving effect to such
issuance, sale or other disposition, such Restricted Subsidiary would continue
to constitute a Restricted Subsidiary. The proceeds of any sale of such Capital
Stock permitted hereby (other than pursuant to clause (a)) shall be treated as
Net Available Cash from an Asset Disposition and must be applied in accordance
with Section 4.06.
54
SECTION 4.14. Limitation on Liens. (a) The Company shall not,
and shall not permit any Restricted Subsidiary to Incur Indebtedness secured by
a Lien upon any Restricted Property ("Secured Debt") without effectively and
concurrently providing that the Securities (and, if the Company or the Issuer
shall so determine, any other Indebtedness that is not subordinate in right of
payment to the Securities) shall be secured equally and ratably with (or prior
to) such Indebtedness so long as such Indebtedness shall be so secured. This
restriction will not apply to:
(i) Liens existing on the date of this Indenture (other than
Liens securing the Bank Indebtedness);
(ii) Liens affecting property of a Person existing at the time
it becomes a Restricted Subsidiary or at the time it is merged into or
consolidated with the Company or a Restricted Subsidiary or at the time
of a sale, lease or other disposition of the properties of such Person
as an entirety or substantially as an entirety to the Company or a
Restricted Subsidiary;
(iii) Liens securing Indebtedness Incurred pursuant to Section
4.03(b)(vi) or (e)(iii);
(iv) Liens securing Indebtedness of the Company or any
Restricted Subsidiary owing to the Company or to a Restricted
Subsidiary;
(v) Liens required by any contract or statute in order to
permit the Company or its Restricted Subsidiaries to perform any
contract or subcontract made by it with or at the request of the United
States, any State of the United States, another country or any
department, agency or instrumentality of the foregoing;
(vi) Liens to secure bids, tenders, contracts (other than
contracts for the repayment of borrowed money), leases, statutory
obligations, surety and appeal bonds, performance or return-of-money
bonds, progress payments, customs duties and other obligations of like
nature arising in the ordinary course of business;
(vii) Liens on accounts receivable and related assets of the
type specified in the definition of "Qualified Receivables Transaction"
Incurred in connection with a Qualified Receivables Transaction;
(viii) Liens securing Indebtedness of any Foreign Subsidiary
Incurred pursuant to Section 4.03(b)(x); and
(ix) Any extension, renewal, refinancing, refunding or
replacement (or successive extensions, renewals, refinances, refunds or
replacements) of any Lien
55
or Indebtedness secured by any Lien, in whole or in part, that is
referred to in the foregoing clauses (i) through (viii); provided,
however, that the principal amount of Indebtedness so secured pursuant
to this clause (ix) shall not exceed the principal amount of
Indebtedness so secured (plus the aggregate amount of premiums, other
payments, costs, and expenses required to be paid or Incurred in
connection with such extension, renewal, refinancing, refunding or
replacement) at the time of such extension, renewal, refinancing,
refunding or replacement, and that such extension, renewal,
refinancing, refunding or replacement shall be limited to all or the
part of the property (including improvements, alterations and repairs
on such property) subject to the encumbrance so extended, renewed,
refinanced, refunded or replaced (plus improvements, alterations and
repairs on such property).
(b) In addition, the Company and any Restricted Subsidiary
may, without securing the Securities, Incur Secured Debt in an aggregate
principal amount which, together with (without duplication) (i) the aggregate
principal amount of all other Secured Debt of the Company and the Restricted
Subsidiaries (other than Indebtedness permitted to be secured under Section
4.14(a)), (ii) the aggregate Value of Sale/Leaseback Transactions of the Company
and the Restricted Subsidiaries (other than Sale/Leaseback Transactions
permitted under Section 4.15(a)), and (iii) the aggregate principal amount of
all Funded Debt of the Restricted Subsidiaries (other than Funded Debt permitted
to be Incurred under Section 4.03(e)(i) though (iv)), does not at any one time
exceed 15% of Consolidated Net Tangible Assets of the Issuer.
SECTION 4.15. Limitation on Sale/Leaseback Transactions. (a)
The Company shall not, and shall not permit any Restricted Subsidiary to, enter
into any arrangement with any Person (other than the Company or a Restricted
Subsidiary), providing for the leasing to the Company or a Restricted Subsidiary
for a period of more than three years of any Restricted Property which has been
or is to be sold or transferred by the Company or such Restricted Subsidiary to
such Person or to any other Person (other than the Company or a Restricted
Subsidiary), to which funds have been or are to be advanced by such Person on
the security of the leased property (each such arrangement, a "Sale/Leaseback
Transaction") unless:
(i) the Company or such Restricted Subsidiary applies or
commits to apply an amount equal to the Value of such Sale/Leaseback
Transaction to the repayment, redemption or retirement (other than any
mandatory repayment, redemption or retirement or by way of payment at
maturity) within 185 days of the effective date of such Sale/Leaseback
Transaction of Indebtedness of the Company or any Restricted Subsidiary
which by its terms (1) matures at (or is extendible or renewable, at
the sole option of the obligor without the consent of the obligee, to)
a date more than 12 months after the date of creation of such
56
Indebtedness, and (2) is not subordinated to the Securities or the Note
Guarantee; or
(ii) the Company or such Restricted Subsidiary applies the net
proceeds of the sale to investment in another Restricted Property
within 185 days prior or subsequent to such sale.
(b) In addition, the Company and any Restricted Subsidiary may
enter into a Sale/Leaseback Transaction with a Value which, together with
(without duplication) (i) the aggregate Value of all other Sale/Leaseback
Transactions of the Company and the Restricted Subsidiaries (other than
Sale/Leaseback Transactions permitted under Section 4.15(a)), (ii) the aggregate
principal amount of all Secured Debt of the Company and the Restricted
Subsidiaries (other than Indebtedness permitted to be secured under Section
4.14(a)(i) through (ix)), and (iii) the aggregate principal amount of all Funded
Debt of the Restricted Subsidiaries (other than Funded Debt permitted to be
Incurred under Section 4.03(e)(i) through (iv)), does not at the time of
entering into exceed 15% of Consolidated Net Tangible Assets of the Issuer.
SECTION 4.16. Corporate Existence. Subject to Section 5.01,
the Company shall do or cause to be done all things necessary to preserve and
keep in full force and effect the corporate existence and related rights and
franchises (charter and statutory) of the Company and its Restricted
Subsidiaries; provided, however, that the Company and its Restricted
Subsidiaries shall not be required to preserve any such right or franchise or
the corporate existence of any such Restricted Subsidiary (other than the
Issuer) if the Board of Directors of the Company shall determine that the
preservation thereof is no longer necessary or desirable in the conduct of the
business of the Company and its Restricted Subsidiaries taken as a whole and
that the loss thereof would not reasonably be expected to have a material
adverse effect on the ability of the Issuer or the Company to perform its
obligations under the Securities or this Indenture.
SECTION 4.17. Payment of Taxes and Other Claims. The Company
shall pay or discharge or cause to be paid or discharged, on or before the date
the same shall become due and payable, (a) all taxes, assessments and
governmental charges levied or imposed upon the Company or any of its Restricted
Subsidiaries shown to be due on any return of the Company or any of its
Restricted Subsidiaries or otherwise assessed or upon the income, profits or
property of the Company or any of its Restricted Subsidiaries if failure to pay
or discharge the same could reasonably be expected to have a material adverse
effect on the ability of the Issuer or the Company to perform its
57
obligations under the Securities or this Indenture and (b) all lawful claims for
labor, materials and supplies, which, if unpaid, would by law become a Lien upon
the property of the Company or any of its Restricted Subsidiaries, except for
any Lien permitted to be Incurred under Section 4.14, if failure to pay or
discharge the same could reasonably be expected to have a material adverse
effect on the ability of the Issuer or the Company to perform its obligations
under the Securities or this Indenture; provided, however, that the Company or
any of the Restricted Subsidiaries shall not be required to pay or discharge or
cause to be paid or discharged any such tax, assessment, charge or claim whose
amount, applicability or validity is being contested in good faith by
appropriate proceedings properly instituted and diligently conducted and in
respect of which appropriate reserves (in the good faith judgment of management
of the Company) are being maintained in accordance with GAAP.
SECTION 4.18. Maintenance of Properties. The Company shall
cause all material properties owned by the Company or any of its Restricted
Subsidiaries or used or held for use in the conduct of their respective
businesses to be maintained and kept in good condition, repair and working order
(ordinary wear and tear excepted) and supplied with all necessary equipment and
will cause to be made all necessary repairs, renewals, replacements, betterments
and improvements thereof, all as in the reasonable judgment of the Company may
be consistent with sound business practice and necessary so that the business
carried on in connection therewith may be properly conducted at all times;
provided, however, that nothing in this Section 4.18 shall prevent the Company
from discontinuing the maintenance of any of such properties if such
discontinuance is, in the reasonable judgment of the Company, desirable in the
conduct of the business of the Company and its Restricted Subsidiaries, taken as
a whole, and not reasonably expected to have a material adverse effect on the
ability of the Issuer or the Company to perform its obligations under the
Securities or this Indenture.
SECTION 4.19. Fall-Away of Covenants. After the date (such
date, the "Fall-Away Date") on which (a) the Securities have received ratings
from both Standard & Poor's Ratings Group, Inc. and ▇▇▇▇▇'▇ Investors Service,
Inc. of not lower than BBB- and Baa3, respectively, (b) no Default or Event of
Default has occurred and is continuing under this Indenture and (c) the Issuer
has delivered an Officers' Certificate to the Trustee certifying that the
conditions set forth in clauses (a) and (b) above are satisfied, the Company and
the Restricted Subsidiaries will no longer be subject to the following
provisions of this Indenture (notwithstanding that the Securities may later
cease to have such ratings): Sections 4.03 (other than paragraph (e) thereof and
the clauses of paragraph (b) thereof referred to in paragraph (e) thereof),
4.04, 4.05, 4.06, 4.07, 4.12, 4.13 and 5.01 (only as to clauses (a)(iii) and
(b)(iii) in respect of each of the Company and the Issuer).
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ARTICLE 5
Successor Company
SECTION 5.01. (a) When Issuer May Merge or Transfer Assets.
The Issuer shall not consolidate with or merge with or into, or convey, transfer
or lease all or substantially all its assets to, any Person, unless:
(i) the resulting, surviving or transferee Person (the
"Successor Company") shall be a corporation organized and existing
under the laws of the United States of America, any State thereof or
the District of Columbia and the Successor Company (if not the Issuer)
shall expressly assume, by a supplemental indenture hereto, executed
and delivered to the Trustee, in form satisfactory to the Trustee, all
the obligations of the Issuer under the Securities and this Indenture;
(ii) immediately after giving effect to such transaction (and
treating any Indebtedness which becomes an obligation of the Successor
Company, the Company or any Restricted Subsidiary as a result of such
transaction as having been Incurred by the Successor Company, the
Company or such Restricted Subsidiary at the time of such transaction),
no Default shall have occurred and be continuing;
(iii) immediately after giving effect to such transaction, the
Successor Company would be able to Incur an additional $1.00 of
Indebtedness pursuant to Section 4.03(a); and
(iv) the Issuer shall have delivered to the Trustee an
Officers' Certificate and an Opinion of Counsel, each stating that such
consolidation, merger or transfer and such supplemental indenture (if
any) comply with this Indenture.
The Successor Company shall succeed to, and be substituted
for, and may exercise every right and power of, the Issuer under this Indenture,
and the predecessor Issuer shall be released from all of its obligations
hereunder, except in the case of a lease of all or substantially all its assets
in which case the Issuer shall not be released from the obligation to pay the
principal of and interest on the Securities.
(b) The Company shall not consolidate with or merge with or
into, or convey, transfer or lease all or substantially all of its assets to any
Person unless:
(i) the resulting, surviving or transferee Person (the
"Successor Guarantor") will be a corporation organized and existing
under the laws of the United States of America, any State thereof or
the District of Columbia, and such Person (if not the Company) shall
expressly assume, by a supplemental indenture,
59
executed and delivered to the Trustee, in form satisfactory to the
Trustee, all the obligations of the Company under the Note Guarantee,
the Securities and this Indenture;
(ii) immediately after giving effect to such transaction (and
treating any Indebtedness which becomes an obligation of the Successor
Guarantor or any Restricted Subsidiary as a result of such transaction
as having been Incurred by the Successor Guarantor or such Restricted
Subsidiary at the time of such transaction), no Default shall have
occurred and be continuing;
(iii) immediately after giving effect to such transaction, the
Successor Guarantor would be able to Incur an additional $1.00 of
Indebtedness pursuant to Section 4.03(a); and
(iv) the Issuer shall have delivered to the Trustee an
Officers' Certificate and an Opinion of Counsel, each stating that such
consolidation, merger or transfer and such supplemental indenture (if
any) comply with this Indenture.
The Successor Guarantor shall succeed to, and be substituted
for, and may exercise every right and power of, the Company under this
Indenture, and the predecessor Company shall be released from all of its
obligations thereunder, except in the case of a lease of all or substantially
all its assets in which case it will not be released from the obligation to pay
the principal of and interest on the Securities.
(c) Notwithstanding anything in this Indenture, (i) any
Restricted Subsidiary may consolidate with, merge into or convey, lease, sell,
assign, transfer or otherwise dispose of all or part of its properties and
assets to the Company or a Restricted Subsidiary; (ii) the Issuer or the Company
may merge with an Affiliate incorporated solely for the purpose of
reincorporating the Issuer or the Company in another jurisdiction to realize tax
or other benefits; and (iii) for purposes of this Section 5.01, the sale by the
Company or the Issuer of the equity interests in Millennium Petrochemicals Inc.,
the equity interests in the limited liability companies which directly or
indirectly own the Company's equity interests in Equistar, and/or the Company's
equity interests in Equistar will be deemed not to constitute the conveyance,
transfer or lease of all or substantially all the assets of the Issuer or the
Company if any such sale consists of Net Tangible Assets constituting 331/3% or
less of the Consolidated Net Tangible Assets of the Company as of the date of
the most recent publicly available consolidated balance sheet of the Company and
its Subsidiaries.
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ARTICLE 6
Defaults and Remedies
SECTION 6.01. Events of Default. An "Event of Default" occurs
if:
(a) a default occurs in any payment of interest or any
Additional Amounts on any Security when the same becomes due and
payable or in any payment of liquidated damages, and such default
continues for a period of 30 days;
(b) (i) a default occurs in the payment of the principal of
any Security when the same becomes due and payable at its Stated
Maturity, upon required redemption or repurchase, upon declaration or
otherwise or (ii) there is a failure to redeem or purchase Securities
when required pursuant to this Indenture or the Securities;
(c) the Company or the Issuer fails to comply with Section
5.01;
(d) the Company or any Restricted Subsidiary fails to comply
with Section 4.02, 4.03, 4.04, 4.05, 4.06, 4.07, 4.08, 4.12, 4.13,
4.14, 4.15, 4.16, 4.17 or 4.18 (in each case, other than a failure to
purchase Securities, which will constitute an Event of Default under
Section 6.01(b), and such failure continues for 30 days after the
receipt of the notice specified below;
(e) the Company or any Restricted Subsidiary fails to comply
with any of its agreements in the Securities or this Indenture (other
than those referred to in (a), (b), (c), or (d) above) and such failure
continues for 60 days after the receipt of the notice specified below;
(f) the Company or any Restricted Subsidiary fails to pay any
Indebtedness within any applicable grace period after final maturity or
the acceleration of any such Indebtedness by the holders thereof
because of a default if the total amount of such Indebtedness unpaid or
accelerated exceeds $30,000,000 or its foreign currency equivalent;
(g) the Company or any Significant Subsidiary pursuant to or
within the meaning of any Bankruptcy Law:
(i) commences a voluntary case;
(ii) consents to the entry of an order for relief
against it in an involuntary case;
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(iii) consents to the appointment of a Custodian of
it or for any substantial part of its property; or
(iv) makes a general assignment for the benefit of
its creditors; or takes any comparable action under any
foreign laws relating to insolvency;
(h) a court of competent jurisdiction enters an order or
decree under any Bankruptcy Law that:
(i) is for relief against the Company or any
Significant Subsidiary in an involuntary case;
(ii) appoints a Custodian of the Company or any
Significant Subsidiary or for any substantial part of its
property; or
(iii) orders the winding up or liquidation of the
Company or any Significant Subsidiary;
or any similar relief is granted under any foreign laws and the order
or decree remains unstayed and in effect for a period of 75 consecutive
days;
(i) the rendering of any judgment or decree for the payment of
money (other than judgments which are covered by enforceable insurance
policies issued by reputable and creditworthy insurance companies for
which coverage has been acknowledged in writing) in excess of
$30,000,000 or its foreign currency equivalent against the Company or a
Restricted Subsidiary if such judgment or decree remains outstanding
for a period of 60 days following such judgment and is not paid,
discharged, waived or stayed and an enforcement proceeding thereon is
commenced by any creditor; or
(j) the Note Guarantee ceases to be in full force and effect
(except as contemplated by this Indenture) or the Company or any Person
acting on behalf of the Company denies or disaffirms the Company's
obligations under this Indenture or Note Guarantee and such Default
continues for 10 days after the receipt of the notice specified below.
The foregoing shall constitute Events of Default whatever the
reason for any such Event of Default and whether it is voluntary or involuntary
or is effected by operation of law or pursuant to any judgment, decree or order
of any court or any order, rule or regulation of any administrative or
governmental body.
The term "Bankruptcy Law" means ▇▇▇▇▇ ▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇ Code,
or any similar Federal or state law for the relief of debtors. The term
"Custodian" means any
62
receiver, trustee, assignee, liquidator, custodian or similar official under any
Bankruptcy Law.
A Default under clause (d), (e) or (j) above is not an Event
of Default until the Trustee notifies the Issuer or the Holders of at least 25%
in principal amount of the outstanding Securities notify the Issuer and the
Trustee of the Default and the Issuer or the Company, as applicable, does not
cure such Default within the time specified in clauses (d), (e) or (j) hereof
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 shall deliver to the Trustee, within 30 days after
the occurrence thereof, written notice in the form of an Officers' Certificate
of any event which is, or with the giving of notice or the lapse of time or both
would become, an Event of Default, its status and what action the Issuer is
taking or proposes to take with respect thereto.
SECTION 6.02. Acceleration. If an Event of Default (other than
an Event of Default specified in Section 6.01(g) or (h) with respect to the
Company or the Issuer) occurs and is continuing, the Trustee by notice to the
Issuer, or the Holders of at least 25% in principal amount of the outstanding
Securities by notice to the Issuer and the Trustee, may declare the principal of
and accrued but unpaid interest on all the Securities to be due and payable.
Upon such a declaration, such principal and interest shall be due and payable
immediately. If an Event of Default specified in Section 6.01(g) or (h) with
respect to the Company or the Issuer occurs, the principal of and interest on
all the Securities shall ipso facto become and be immediately due and payable
without any declaration or other act on the part of the Trustee or any Holders.
The Holders of a majority in principal amount of the Securities 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. No such rescission shall affect any
subsequent Default or impair any right consequent thereto.
SECTION 6.03. Other Remedies. If an Event of Default occurs
and is continuing, the Trustee may pursue any available remedy to collect the
payment of principal of or interest on the Securities or to enforce the
performance of any provision of the Securities or this Indenture.
The Trustee may maintain a proceeding even if it does not
possess any of the Securities or does not produce any of them in the proceeding.
A delay or omission by the Trustee or any Holder in exercising any right or
remedy accruing upon an Event of Default shall not impair the right or remedy or
constitute a waiver of or acquiescence in the Event of Default. No remedy is
exclusive of any other remedy. All available remedies are cumulative to the
extent permitted by applicable law.
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SECTION 6.04. Waiver of Past Defaults. The Holders of a
majority in principal amount of the outstanding Securities by notice to the
Trustee may waive an existing Default and its consequences except (a) a Default
in the payment of the principal of or interest on a Security, (b) a Default
arising from the failure to redeem or purchase any Security when required
pursuant to the terms of this Indenture or (c) a Default in respect of a
provision that under Section 9.02 cannot be amended without the consent of each
Holder affected. When a Default is waived, it is deemed cured, but no such
waiver shall extend to any subsequent or other Default or impair any consequent
right.
SECTION 6.05. Control by Majority. The Holders of a majority
in principal amount of the outstanding Securities may direct the time, method
and place of conducting any proceeding for any remedy available to the Trustee
or of exercising any trust or power conferred on the Trustee. 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 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 satisfactory to it in its sole discretion against all losses
and expenses caused by taking or not taking such action.
SECTION 6.06. Limitation on Suits. (a) Except to enforce the
right to receive payment of principal, premium (if any) or interest when due, no
Holder may pursue any remedy with respect to this Indenture or the Securities
unless:
(i) the Holder gives to the Trustee written notice stating
that an Event of Default is continuing;
(ii) the Holders of at least 25% in principal amount of the
outstanding Securities make a written request to the Trustee to pursue
the remedy;
(iii) such Holder or Holders offer to the Trustee reasonable
security or indemnity reasonably satisfactory to the Trustee against
any loss, liability or expense;
(iv) the Trustee does not comply with the request within 60
days after receipt of the request and the offer of security or
indemnity; and
(v) the Holders of a majority in principal amount of the
outstanding Securities do not give the Trustee a direction inconsistent
with the request during such 60-day period.
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(b) A Holder may not use this Indenture to prejudice the
rights of another Holder or to obtain a preference or priority over another
Holder.
SECTION 6.07. Rights of Holders to Receive Payment.
Notwithstanding any other provision of this Indenture, the right of any Holder
to receive payment of principal of and liquidated damages and interest on the
Securities held by such Holder, on or after the respective due dates expressed
or provided for in the Securities, or to bring suit for the enforcement of any
such payment on or after such respective dates, shall not be impaired or
affected without the consent of such Holder.
SECTION 6.08. Collection Suit by Trustee. If an Event of
Default specified in Section 6.01(a) or (b) occurs and is continuing, the
Trustee may recover judgment in its own name and as trustee of an express trust
against the Issuer or any other obligor on the Securities for the whole amount
then due and owing (together with interest on overdue principal and (to the
extent lawful) on any unpaid interest at the rate provided for in the
Securities) 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 allowed
in any judicial proceedings relative to the Company, the Issuer or any other
Subsidiary of the Company, their creditors or their property and, unless
prohibited by law or applicable regulations, may vote on behalf of the Holders
in any election of a trustee in bankruptcy or other Person performing similar
functions, and any Custodian in any such judicial proceeding is hereby
authorized by each Holder to make payments to the Trustee and, in the event that
the Trustee shall consent to the making of such payments directly to the
Holders, to pay to the Trustee any amount due it for the reasonable
compensation, expenses, disbursements and advances of the Trustee, its agents
and its counsel, and any other amounts due the Trustee under Section 7.07.
SECTION 6.10. Priorities. If the Trustee collects any money or
property pursuant to this Article 6, it shall pay out the money or property in
the following order:
FIRST: to the Trustee for amounts due under Section 7.07;
SECOND: to Holders for amounts due and unpaid on the
Securities for principal and interest, ratably, and any liquidated
damages without preference or priority of any kind, according to the
amounts due and payable on the Securities for principal, interest and
any liquidated damages, respectively; and;
THIRD: to the Issuer.
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The Trustee may fix a record date and payment date for any
payment to Holders pursuant to this Section. At least 15 days before such record
date, the Trustee shall mail to each Holder and the Issuer a notice that states
the record date, the payment date and amount to be paid.
SECTION 6.11. Undertaking for Costs. In any suit for the
enforcement of any right or remedy under this Indenture or in any suit against
the Trustee for any action taken or omitted by it as Trustee, a court in its
discretion may require the filing by any party litigant in the suit of an
undertaking to pay the costs of the suit, and the court in its discretion may
assess reasonable costs, including reasonable attorneys' fees, against any party
litigant in the suit, having due regard to the merits and good faith of the
claims or defenses made by the party litigant. This Section does not apply to a
suit by the Trustee, a suit by a Holder pursuant to Section 6.07 or a suit by
Holders of more than 10% in principal amount of the outstanding Securities.
SECTION 6.12. Waiver of Stay or Extension Laws. Neither the
Issuer nor the Company (to the extent it may lawfully do so) shall at any time
insist upon, or plead, or in any manner whatsoever claim or take the benefit or
advantage of, any stay or extension law wherever enacted, now or at any time
hereafter in force, which may affect the covenants or the performance of this
Indenture; and each of the Issuer and the Company (to the extent that it may
lawfully do so) hereby expressly waives all benefit or advantage of any such
law, and shall not hinder, delay or impede the execution of any power herein
granted to the Trustee, but shall suffer and permit the execution of every such
power as though no such law had been enacted.
ARTICLE 7
Trustee
SECTION 7.01. Duties of Trustee. (a) If an Event of Default
has occurred and is continuing, the Trustee shall exercise the rights and powers
vested in it by this Indenture and use the same degree of care and skill in
their exercise as a prudent person would exercise or use under the circumstances
in the conduct of such person's own affairs.
(b) Except during the continuance of an Event of Default:
(i) the Trustee undertakes to perform such duties and only
such duties as are specifically set forth in this Indenture and no
implied covenants or obligations shall be read into this Indenture
against the Trustee; and
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(ii) in the absence of bad faith on its part, the Trustee may
conclusively rely, as to the truth of the statements and the
correctness of the opinions expressed therein, upon certificates or
opinions furnished to the Trustee and conforming to the requirements of
this Indenture. However, the Trustee shall examine the certificates and
opinions to determine whether or not they conform to the requirements
of this Indenture (but need not confirm or investigate the accuracy of
mathematical calculations or other facts stated therein).
(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:
(i) this paragraph does not limit the effect of paragraph (b)
of this Section;
(ii) the Trustee shall not be liable for any error of judgment
made in good faith by a Trust Officer unless it is proved that the
Trustee was negligent in ascertaining the pertinent facts;
(iii) the Trustee shall not be liable with respect to any
action it takes or omits to take in good faith in accordance with a
direction received by it pursuant to Section 6.05; and
(iv) no provision of this Indenture shall require the Trustee
to expend or risk its own funds or otherwise incur financial liability
in the performance of any of its duties hereunder or in the exercise of
any of its rights or powers, if it shall have reasonable grounds to
believe that repayment of such funds or adequate indemnity against such
risk or liability is not reasonably assured to it.
(d) Every provision of this Indenture that in any way relates
to the Trustee is subject to paragraphs (a), (b) and (c) of this Section.
(e) The Trustee shall not be liable for interest on any money
received by it except as the Trustee may agree in writing with the Issuer.
(f) Money held in trust by the Trustee need not be segregated
from other funds except to the extent required by law.
(g) Every provision of this Indenture relating to the conduct
or affecting the liability of or affording protection to the Trustee shall be
subject to the provisions of this Section and to the provisions of the TIA.
SECTION 7.02. Rights of Trustee. (a) The Trustee may
conclusively rely and shall be protected in acting or refraining from acting on
any document believed
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by it to be genuine and to have been signed or presented by the proper person.
The Trustee need not investigate any fact or matter stated in the document.
(b) Before the Trustee acts or refrains from acting, it may
require an Officers' Certificate or an Opinion of Counsel. The Trustee shall not
be liable for any action it takes or omits to take in good faith in reliance on
the Officers' Certificate or Opinion of Counsel.
(c) The Trustee may act through agents and shall not be
responsible for the misconduct or negligence of any agent appointed with due
care.
(d) The Trustee shall not be liable for any action it takes or
omits to take in good faith which it believes to be authorized or within its
rights or powers; provided, however, that the Trustee's conduct does not
constitute wilful misconduct or negligence.
(e) The Trustee may consult with counsel of its selection, and
the advice or opinion of counsel with respect to legal matters relating to this
Indenture and the Securities shall be full and complete authorization and
protection from liability in respect of any action taken, omitted or suffered by
it hereunder in good faith and in accordance with the advice or opinion of such
counsel.
(f) The Trustee shall not be bound to make any investigation
into the facts or matters stated in any resolution, certificate, statement,
instrument, opinion, report, notice, request, consent, order, approval, bond,
debenture, note or other paper or document unless requested in writing to do so
by the Holders of not less than a majority in principal amount of the Securities
at the time outstanding, but the Trustee, in its discretion, may make such
further inquiry or investigation into such facts or matters as it may see fit,
and, if the Trustee shall determine to make such further inquiry or
investigation, it shall be entitled to examine the books, records and premises
of the Issuer, personally or by agent or attorney at the sole cost of the Issuer
and the Company and shall incur no liability or additional liability of any kind
by reason of such inquiry or investigation.
(g) The Trustee shall be under no obligation to exercise any
of the rights or powers vested in it by this Indenture at the request or
direction of any of the Holders pursuant to this Indenture, unless such Holders
shall have offered to the Trustee security or indemnity satisfactory to the
Trustee against the costs, expenses and liabilities which might be incurred by
it in compliance with such request or direction.
(h) The Trustee shall not be deemed to have notice of any
Default or Event of Default unless a Trust Officer of the Trustee has actual
knowledge thereof or unless written notice of any event which is in fact such a
default is received by the
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Trustee at the Corporate Trust Office of the Trustee, and such notice references
the Securities and this Indenture.
(i) The rights, privileges, protections, immunities and
benefits given to the Trustee, including, without limitation, its right to be
indemnified, are extended to, and shall be enforceable by, the Trustee in each
of its capacities hereunder, and each agent, custodian and other Person employed
to act hereunder.
(j) The Trustee may request that the Issuer or the Company
deliver an Officers' Certificate setting forth the names of individuals and/or
titles of officers authorized at such time to take specified actions pursuant to
this Indenture, which Officers' Certificate may be signed by any Person
authorized to sign an Officers' Certificate, including any Person specified as
so authorized in any such certificate previously delivered and not superseded.
SECTION 7.03. Individual Rights of Trustee. The Trustee in its
individual or any other capacity may become the owner or pledgee of Securities
and may otherwise deal with the Issuer or its Affiliates with the same rights it
would have if it were not Trustee. 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 of
this Indenture, the Note Guarantee or the Securities, it shall not be
accountable for the Issuer's use of the proceeds from the Securities, and it
shall not be responsible for any statement of the Issuer or the Company in this
Indenture or in any document issued in connection with the sale of the
Securities or in the Securities other than the Trustee's certificate of
authentication. The Trustee shall not be charged with knowledge of any Default
or Event of Default under Sections 6.01(c), (d), (e), (f), (i) or (j) or of the
identity of any Significant Subsidiary unless either (a) a Trust Officer shall
have actual knowledge thereof or (b) the Trustee shall have received notice
thereof in accordance with Section 11.02 hereof from the Issuer, the Company or
any Holder.
SECTION 7.05. Notice of Defaults. If a Default occurs and is
continuing and if it is known to the Trustee, the Trustee shall mail to each
Holder notice of the Default within the earlier of 90 days after it occurs or 30
days after it is known to a trust officer or written notice of it is received by
the Trustee. Except in the case of a Default in payment of principal of, premium
(if any) or interest on any Security (including required payments, if any,
pursuant to the redemption provisions of such Security), the Trustee may
withhold the notice if and so long as a committee of its Trust Officers in good
faith determines that withholding the notice is in the interests of Holders.
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SECTION 7.06. Reports by Trustee to Holders. Within 30 days
after each May 15 beginning with the May 15 following the date of this
Indenture, the Trustee shall mail to each Holder a brief report dated as of such
May 15 that complies with Section 313(a) of the TIA if and to the extent
required thereby. The Trustee shall also comply with Section 313(b) of the TIA.
A copy of each report at the time of its mailing to Holders
shall be filed with the SEC and each stock exchange (if any) on which the
Securities are listed. The Issuer agrees to notify promptly the Trustee whenever
the Securities become listed on any stock exchange and of any delisting thereof.
SECTION 7.07. Compensation and Indemnity. The Issuer shall pay
to the Trustee from time to time such compensation for its services hereunder as
the Issuer and the Trustee shall from time to time agree in writing. The
Trustee's compensation shall not be limited by any law on compensation of a
trustee of an express trust. The Issuer shall reimburse the Trustee upon request
for all reasonable out-of-pocket expenses incurred or made by it, including
costs of collection, in addition to the compensation for its services as the
Issuer and the Trustee shall, from time to time, agree in writing. Such expenses
shall include the reasonable compensation and expenses, disbursements and
advances of the Trustee's agents, counsel, accountants and experts. The Issuer
and the Company, jointly and severally, shall indemnify the Trustee or any
predecessor Trustee and their agents against any and all loss, liability or
expense (including reasonable attorneys' fees) incurred by or in connection with
the administration of this trust and the performance of its duties hereunder.
The Trustee shall notify the Issuer of any claim for which it may seek indemnity
promptly upon obtaining actual knowledge thereof; provided, however, that any
failure so to notify the Issuer shall not relieve the Issuer or the Company of
its indemnity obligations hereunder. The Issuer shall defend the claim and the
indemnified party shall provide reasonable cooperation at the Issuer's expense
in the defense. Such indemnified parties may have separate counsel and the
Issuer and the Company, as applicable shall pay the fees and expenses of such
counsel; provided, however, that the Issuer shall not be required to pay such
fees and expenses if it assumes such indemnified parties' defense and, in such
indemnified parties' reasonable judgment, there is no conflict of interest
between the Issuer and the Company, as applicable, and such parties in
connection with such defense. The Issuer need not reimburse any expense or
indemnify against any loss, liability or expense incurred by an indemnified
party through such party's own wilful misconduct, negligence or bad faith. The
Issuer need not pay for any settlement made without its written consent.
To secure the Issuer's payment obligations in this Section,
the Trustee shall have a lien prior to the Securities on all money or property
held or collected by the Trustee other than money or property held in trust to
pay principal of and interest and liquidated damages, if any, on particular
Securities.
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The Issuer's payment obligations pursuant to this Section
shall survive the satisfaction or discharge of this Indenture, any rejection or
termination of this Indenture under any bankruptcy law or the resignation or
removal of the Trustee. Without prejudice to any other rights available to the
Trustee under applicable law, when the Trustee incurs expenses after the
occurrence of a Default specified in Section 6.01(g) or (h) with respect to the
Issuer or the Company, the expenses are intended to constitute expenses of
administration under the Bankruptcy Law.
SECTION 7.08. Replacement of Trustee. (a) The Trustee may
resign at any time by so notifying the Issuer. The Holders of a majority in
principal amount of the Securities may remove the Trustee by so notifying the
Trustee and may appoint a successor Trustee. The Issuer shall remove the Trustee
if:
(i) the Trustee fails to comply with Section 7.10;
(ii) the Trustee is adjudged bankrupt or insolvent;
(iii) a receiver or other public officer takes charge of the
Trustee or its property; or
(iv) the Trustee otherwise becomes incapable of acting.
(b) If the Trustee resigns, is removed by the Issuer or by the
Holders of a majority in principal amount of the Securities and such Holders do
not reasonably promptly appoint a successor Trustee, or if a vacancy exists in
the office of Trustee for any reason (the Trustee in such event being referred
to herein as the retiring Trustee), the Issuer shall promptly appoint a
successor Trustee.
(c) A successor Trustee shall deliver a written acceptance of
its appointment to the retiring Trustee and to the Issuer. Thereupon the
resignation or removal of the retiring Trustee shall become effective, and the
successor Trustee shall have all the rights, powers and duties of the Trustee
under this Indenture. The successor Trustee shall mail a notice of its
succession to Holders. The retiring Trustee shall promptly transfer all property
held by it as Trustee to the successor Trustee, subject to the lien provided for
in Section 7.07.
(d) If a successor Trustee does not take office within 60 days
after the retiring Trustee resigns or is removed, the retiring Trustee, at the
Issuer's expense, or the Holders of 10% in principal amount of the Securities
may petition any court of competent jurisdiction for the appointment of a
successor Trustee.
(e) If the Trustee fails to comply with Section 7.10, unless
the Trustee's duty to resign is stayed as provided in Section 310(b) of the TIA,
any Holder who has
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been a bona fide holder of a Security for at least six months 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 pursuant to
this Section, the Issuer's obligations under Section 7.07 shall continue for the
benefit of the retiring Trustee.
SECTION 7.09. Successor Trustee by Merger. If the Trustee
consolidates with, merges or converts into, or transfers all or substantially
all its corporate trust business or assets to, another corporation or banking
association, the resulting, surviving or transferee corporation without any
further act shall be the successor Trustee.
In case at the time such successor or successors by merger,
conversion or consolidation to the Trustee shall succeed to the trusts created
by this Indenture any of the Securities shall have been authenticated but not
delivered, any such successor to the Trustee may adopt the certificate of
authentication of any predecessor trustee, and deliver such Securities so
authenticated; and in case at that time any of the Securities shall not have
been authenticated, any successor to the Trustee may authenticate such
Securities either in the name of any predecessor hereunder or in the name of the
successor to the Trustee; and in all such cases such certificates shall have the
full force which it is anywhere in the Securities or in this Indenture provided
that the certificate of the Trustee shall have.
SECTION 7.10. Eligibility; Disqualification. The Trustee shall
at all times satisfy the requirements of Section 310(a) of the TIA. The Trustee
shall have a combined capital and surplus of at least $50,000,000 as set forth
in its most recent published annual report of condition. The Trustee shall
comply with Section 310(b) of the TIA, subject to its right to apply for a stay
of its duty to resign under the penultimate paragraph of Section 310(b) of the
TIA; provided, however, that there shall be excluded from the operation of
Section 310(b)(1) of the TIA any indenture or indentures under which other
securities or certificates of interest or participation in other securities of
the Issuer are outstanding if the requirements for such exclusion set forth in
Section 310(b)(1) of the TIA are met.
SECTION 7.11. Preferential Collection of Claims Against
Issuer. The Trustee shall comply with Section 311(a) of the TIA, excluding any
creditor relationship listed in Section 311(b) of the TIA. A Trustee who has
resigned or been removed shall be subject to Section 311(a) of the TIA to the
extent indicated.
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ARTICLE 8
Discharge of Indenture; Defeasance
SECTION 8.01. Discharge of Liability on Securities;
Defeasance. (a) When (i) all outstanding Securities (other than Securities
replaced or paid pursuant to Section 2.08) have been canceled or delivered to
the Trustee for cancelation or (ii) all outstanding Securities have become due
and payable, whether at maturity or as a result of the mailing of a notice of
redemption pursuant to Article 3 hereof, and the Issuer irrevocably deposits
with the Trustee funds in an amount sufficient or U.S. Government Obligations,
the principal of and interest on which will be sufficient, or a combination
thereof sufficient, in the written opinion of a nationally recognized firm of
independent public accountants delivered to the Trustee (which delivery shall
only be required if U.S. Government Obligations have been so deposited), to pay
the principal of and interest and liquidated damages, if any, on the outstanding
Securities when due at maturity or upon redemption of, including interest
thereon to maturity or such redemption date (other than Securities replaced or
paid pursuant to Section 2.08) and liquidated damages, if any, and if in either
case the Issuer pays all other sums payable hereunder by the Issuer, then this
Indenture shall, subject to Section 8.01(c), cease to be of further effect. The
Trustee shall acknowledge satisfaction and discharge of this Indenture on demand
of the Issuer accompanied by an Officers' Certificate and an Opinion of Counsel
and at the cost and expense of the Issuer.
(b) Subject to Sections 8.01(c) and 8.02, the Company and the
Issuer at any time may terminate (i) all of their obligations under the
Securities and this Indenture ("legal defeasance option") or (ii) its
obligations under Sections 4.02, 4.03, 4.04, 4.05, 4.06, 4.07, 4.08, 4.12, 4.13,
4.14, 4.15, 4.17 and 4.18 and the operation of Section 5.01(a)(iii),
5.01(b)(iii), 6.01(d), 6.01(f), 6.01(g) (with respect to Significant
Subsidiaries of the Company only), 6.01(h) (with respect to Significant
Subsidiaries of the Company only) and 6.01(i) ("covenant defeasance option").
The Issuer may exercise its legal defeasance option notwithstanding its prior
exercise of its covenant defeasance option. In the event that the Company and
the Issuer terminate all of their obligations under the Securities and this
Indenture by exercising their legal defeasance option, the Company's obligations
under the Note Guarantee shall be terminated simultaneously with the termination
of such obligations.
If the Company and the Issuer exercise their legal defeasance
option, payment of the Securities may not be accelerated because of an Event of
Default. If the Company and the Issuer exercise their covenant defeasance
option, payment of the Securities may not be accelerated because of an Event of
Default specified in Section 6.01(d), 6.01(f), 6.01(g) (with respect to
Significant Subsidiaries only), 6.01(h) (with respect to Significant
Subsidiaries only) or 6.01(i) or because of the failure of the Company or the
Issuer to comply with Section 5.01(a)(iii) or with Section 5.01(b)(iii).
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Upon satisfaction of the conditions set forth herein and upon
request of the Issuer, the Trustee shall acknowledge in writing the discharge of
those obligations that the Issuer terminates.
(c) Notwithstanding clauses (a) and (b) above, the Issuer's
and the Company's obligations in Sections 2.04, 2.05, 2.06, 2.07, 2.08, 2.09,
7.07, 7.08 and in this Article 8 shall survive until the Securities have been
paid in full. Thereafter, the Issuer's and the Company's obligations in Sections
7.07, 8.05 and 8.06 shall survive.
SECTION 8.02. Conditions to Defeasance. (a) The Company and
the Issuer may exercise their legal defeasance option or its covenant defeasance
option only if:
(i) the Issuer irrevocably deposits in trust with the Trustee
money in an amount sufficient or U.S. Government Obligations, the
principal of and interest on which will be sufficient, or a combination
thereof sufficient, to pay the principal of, and premium (if any),
interest and liquidated damages (if any), on the Securities when due at
maturity or redemption, as the case may be, including interest thereon
to maturity or such redemption date;
(ii) the Issuer delivers to the Trustee a certificate from a
nationally recognized firm of independent accountants expressing their
opinion that the payments of principal and interest when due and
without reinvestment on the deposited U.S. Government Obligations plus
any deposited money without investment will provide cash at such times
and in such amounts as will be sufficient to pay principal, premium, if
any, interest and liquidated damages, if any, when due on all the
Securities to maturity or redemption, as the case may be;
(iii) 91 days pass after the deposit is made and during the
91-day period no Default specified in Section 6.01(g) or (h) with
respect to the Issuer or the Company occurs which is continuing at the
end of the period;
(iv) the deposit does not constitute a default under any other
agreement binding on the Issuer or the Company;
(v) the Issuer 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;
(vi) in the case of the legal defeasance option, the Issuer
shall have delivered to the Trustee an Opinion of Counsel stating that
(1) the Issuer has received from, or there has been published by, the
Internal Revenue Service a ruling, or (2) since the date of this
Indenture there has been a change in the
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applicable Federal income tax law, in either case to the effect that,
and based thereon such Opinion of Counsel shall confirm that, the
Holders will not recognize income, gain or loss for Federal income tax
purposes as a result of such deposit and defeasance and will be subject
to Federal income tax on the same amounts, in the same manner and at
the same times as would have been the case if such deposit and
defeasance had not occurred;
(vii) in the case of the covenant defeasance option, the
Issuer shall have delivered to the Trustee an Opinion of Counsel to the
effect that the Holders will not recognize income, gain or loss for
Federal income tax purposes as a result of such deposit and defeasance
and will be subject to Federal income tax on the same amounts, in the
same manner and at the same times as would have been the case if such
deposit and defeasance had not occurred; and
(viii) the Issuer delivers to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that all conditions
precedent to the defeasance and discharge of the Securities as
contemplated by this Article 8 have been complied with.
(b) Before or after a deposit, the Issuer may make
arrangements satisfactory to the Trustee for the redemption of Securities at a
future date in accordance with Article 3.
SECTION 8.03. Application of Trust Money. The Trustee shall
hold in trust money or U.S. Government Obligations deposited with it pursuant to
this Article 8. It shall apply the deposited money and the money from U.S.
Government Obligations through the Paying Agent and in accordance with this
Indenture to the payment of principal of and interest and liquidated damages, if
any, on the Securities.
SECTION 8.04. Repayment to Issuer. The Trustee and the Paying
Agent shall promptly turn over to the Issuer upon request any money or U.S.
Government Obligations held by it as provided in this Article which, in the
written opinion of nationally recognized firm of independent public accountants
delivered to the Trustee (which delivery shall only be required if U.S.
Government Obligations have been so deposited), are in excess of the amount
thereof which would then be required to be deposited to effect an equivalent
discharge or defeasance in accordance with this Article.
Subject to any applicable abandoned property law, the Trustee
and the Paying Agent shall pay to the Issuer upon written request any money held
by them for the payment of principal, interest or liquidated damages that
remains unclaimed for two years, and, thereafter, Holders entitled to the money
must look to the Issuer for payment as general creditors, and the Trustee and
the Paying Agent shall have no further liability with respect to such monies.
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SECTION 8.05. Indemnity for Government Obligations. The Issuer
shall pay and shall indemnify the Trustee against any tax, fee or other charge
imposed on or assessed against deposited U.S. Government Obligations or the
principal and interest received on such U.S. Government Obligations.
SECTION 8.06. Reinstatement. If the Trustee or Paying Agent is
unable to apply any money or U.S. Government Obligations in accordance with this
Article 8 by reason of any legal proceeding or by reason of any order or
judgment of any court or governmental authority enjoining, restraining or
otherwise prohibiting such application, the Issuer's and the Company's
obligations under this Indenture and the Securities shall be revived and
reinstated as though no deposit had occurred pursuant to this Article 8 until
such time as the Trustee or Paying Agent is permitted to apply all such money or
U.S. Government Obligations in accordance with this Article 8; provided,
however, that, if the Issuer has made any payment of principal of or interest or
liquidated damages on, any Securities because of the reinstatement of its
obligations, the Issuer shall be subrogated to the rights of the Holders of such
Securities to receive such payment from the money or U.S. Government Obligations
held by the Trustee or Paying Agent.
ARTICLE 9
Amendments
SECTION 9.01. (a) Without Consent of Holders. The Issuer, the
Company and the Trustee may amend this Indenture or the Securities without
notice to or consent of any Holder to, among other things:
(i) cure any ambiguity, omission, defect or inconsistency;
(ii) comply with Article 5;
(iii) 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;
(iv) add additional Guarantees with respect to the Securities;
(v) secure the Securities;
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(vi) add to the covenants of the Company and its Subsidiaries
for the benefit of the Holders or to surrender any right or power
herein conferred upon the Company or the Issuer;
(vii) to comply with any requirement of the SEC in connection
with qualifying, or maintaining the qualification of, this Indenture
under the TIA;
(viii) make any change that does not adversely affect the
rights of any Holder subject to the provisions of this Indenture;
(ix) provide for the issuance, subject to the conditions and
in compliance with the covenants related thereto set forth herein, of
the Exchange Securities, Private Exchange Securities or Additional
Securities, which shall have terms substantially identical in all
material respects to the Original Securities (except that the transfer
restrictions contained in the Original Securities shall be modified or
eliminated, as appropriate), and which may be treated, together with
any outstanding Original Securities, as a single issue of securities;
or
(x) to evidence and provide the acceptance of the appointment
of a successor Trustee under this Indenture.
After an amendment under this Section 9.01 becomes effective,
the Issuer shall mail to Holders a notice briefly describing such amendment. The
failure to give such notice to all Holders, or any defect in the notice, shall
not impair or affect the validity of an amendment under this Section 9.01.
SECTION 9.02. With Consent of Holders. (a) The Issuer, the
Company and the Trustee may amend this Indenture or the Securities without
notice to any Holder but with the written consent of the Holders of at least a
majority in principal amount of the Securities then outstanding (including,
without limitation, consents obtained in connection with a purchase of, or
tender offer or exchange offer for, the Securities). However, without the
consent of each Holder of an outstanding Security affected, an amendment may
not:
(i) reduce the amount of Securities whose Holders must consent
to an amendment;
(ii) reduce the stated rate of or extend the stated time for
payment of interest or any liquidated damages on any Security;
(iii) reduce the principal of or extend the Stated Maturity of
any Security;
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(iv) reduce the premium payable upon the redemption of any
Security or change the time at which any Security may be redeemed in
accordance with Article 3;
(v) make any Security payable in money other than that stated
in the Security;
(vi) make any change in Section 6.04 or 6.07 or the second
sentence of this Section 9.02; or
(vii) modify the Note Guarantee in any manner adverse to the
Holders.
It shall not be necessary for the consent of the Holders under
this Section 9.02 to approve the particular form of any proposed amendment, but
it shall be sufficient if such consent approves the substance thereof.
After an amendment under this Section 9.02 becomes effective,
the Issuer shall mail to Holders 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 9.02.
SECTION 9.03. Compliance with Trust Indenture Act. Every
amendment to this Indenture or the Securities shall comply with the TIA as then
in effect.
SECTION 9.04. Revocation and Effect of Consents and Waivers.
(a) A consent to an amendment or a waiver by a Holder of a Security shall bind
the Holder and every subsequent Holder of that Security or portion of the
Security that evidences the same debt as the consenting Holder's Security, even
if notation of the consent or waiver is not made on the Security. However, any
such Holder or subsequent Holder may revoke the consent or waiver as to such
Holder's Security or portion of the Security if the Trustee receives the notice
of revocation before the date on which the Trustee receives an Officers'
Certificate from the Issuer certifying that the requisite number of consents
have been received. After an amendment or waiver becomes effective, it shall
bind every Holder. An amendment or waiver becomes effective upon the (i) receipt
by the Issuer or the Trustee of the requisite number of consents, (ii)
satisfaction of conditions to effectiveness as set forth in this Indenture and
any indenture supplemental hereto containing such amendment or waiver and (iii)
execution of such amendment or waiver (or supplemental indenture) by the Issuer
and the Trustee.
(b) The Issuer may, but shall not be obligated to, fix a
record date for the purpose of determining the Holders entitled to give their
consent or take any other action described above or required or permitted to be
taken pursuant to this Indenture. If a record date is fixed, then
notwithstanding the immediately preceding paragraph, those
78
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 or the Trustee so determines, the Issuer in
exchange for the Security shall issue and the Trustee shall authenticate a new
Security that reflects the changed terms. Failure to make the appropriate
notation or to issue a new Security shall not affect the validity of such
amendment.
SECTION 9.06. Trustee to Sign Amendments. The Trustee shall
sign any amendment authorized pursuant to this Article 9 if 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 and an Opinion of Counsel
stating that such amendment is authorized or permitted by this Indenture and
that such amendment is the legal, valid and binding obligation of the Issuer and
the Company enforceable against them in accordance with its terms, subject to
customary exceptions, and complies with the provisions hereof (including Section
9.03).
ARTICLE 10
Note Guarantee
SECTION 10.01. (a) Note Guarantee. The Company hereby
irrevocably and unconditionally guarantees on an unsecured senior basis, as a
primary obligor and not merely as a surety, to each Holder and to the Trustee
and its successors and assigns (i) the full and punctual payment when due,
whether at Stated Maturity, by acceleration, by redemption or otherwise, of all
obligations of the Issuer under this Indenture (including obligations to the
Trustee) and the Securities, whether for payment of principal of, interest on or
liquidated damages, if any, in respect of the Securities and all other monetary
obligations of the Issuer under this Indenture and the Securities and (ii) the
full and punctual performance within applicable grace periods of all other
obligations of the Issuer whether for fees, expenses, indemnification or
otherwise under this Indenture and the Securities (all the foregoing being
hereinafter collectively called the "Guaranteed Obligations"). Subject to
Section 10.02 the Company further agrees that the Guaranteed
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Obligations may be extended or renewed, in whole or in part, without notice or
further assent from the Company, and that the Company shall remain bound under
this Article 10 notwithstanding any extension or renewal of any Guaranteed
Obligation.
(b) The Company waives presentation to, demand of payment from
and protest to the Issuer of any of the Guaranteed Obligations and also waives
notice of protest for nonpayment. The Company waives notice of any default under
the Securities or the Guaranteed Obligations. The obligations of the Company
hereunder shall not be affected by (i) 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 under this Indenture, the Securities or any other
agreement or otherwise; (ii) any extension or renewal of any thereof; (iii) any
rescission, waiver, amendment or modification of any of the terms or provisions
of this Indenture, the Securities or any other agreement; (iv) the release of
any security held by any Holder or the Trustee for the Guaranteed Obligations or
any of them; (v) the failure of any Holder or Trustee to exercise any right or
remedy against any other guarantor of the Guaranteed Obligations; or (vi) any
change in the ownership of the Company, except as provided in Section 10.02(b).
(c) The Company hereby waives any right to which it may be
entitled to have the assets of the Issuer first be used and depleted as payment
of the Issuer's or the Company's obligations hereunder prior to any amounts
being claimed from or paid by the Company hereunder. The Company hereby waives
any right to which it may be entitled to require that the Issuer be sued prior
to an action being initiated against the Company.
(d) The Company further agrees that its Note Guarantee herein
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 security held for payment of the
Guaranteed Obligations.
(e) Except as expressly set forth in Sections 8.01(b) and
10.02, the obligations of the Company hereunder 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
Guaranteed Obligations or otherwise. Without limiting the generality of the
foregoing, the obligations of the Company herein shall not be discharged or
impaired or otherwise affected by the failure of any Holder or the Trustee to
assert any claim or demand or to enforce any remedy under this Indenture, the
Securities or any other agreement, by any waiver or modification of any thereof,
by any default, failure or delay, wilful or otherwise, in the performance of the
obligations, or by any other act or thing or 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
the Company or would otherwise operate as a discharge of the Company as a matter
of law or equity.
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(f) The Company agrees that its Note Guarantee shall remain in
full force and effect until payment in full of all the Guaranteed Obligations.
The Company further agrees that its Note Guarantee herein shall continue to be
effective or be reinstated, as the case may be, if at any time payment, or any
part thereof, of principal of or interest or liquidated damages, if any, on any
Guaranteed Obligation is rescinded or must otherwise be restored by any Holder
or the Trustee upon the bankruptcy or reorganization of the Issuer or otherwise.
(g) 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
the Company by virtue hereof, upon the failure of the Issuer to pay the
principal of or interest or liquidated damages, if any, on any Guaranteed
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
Guaranteed Obligation, the Company 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 (i) the unpaid
principal amount of such Guaranteed Obligations, (ii) accrued and unpaid
interest on such Guaranteed Obligations (but only to the extent not prohibited
by law) and (iii) all other monetary obligations of the Issuer to the Holders
and the Trustee.
(h) The Company agrees that it shall not be entitled to any
right of subrogation in relation to the Holders in respect of any Guaranteed
Obligations guaranteed hereby until payment in full of all Guaranteed
Obligations. The Company further agrees that, as between it, on the one hand,
and the Holders and the Trustee, on the other hand, (i) the maturity of the
Guaranteed Obligations guaranteed hereby may be accelerated as provided in
Article 6 for the purposes of the Note Guarantee, notwithstanding any stay,
injunction or other prohibition preventing such acceleration in respect of the
Guaranteed Obligations guaranteed hereby, and (ii) in the event of any
declaration of acceleration of such Guaranteed Obligations as provided in
Article 6, such Guaranteed Obligations (whether or not due and payable) shall
forthwith become due and payable by the Company for the purposes of this Section
10.01.
(i) The Company also agrees to pay any and all costs and
expenses (including reasonable attorneys' fees and expenses) incurred by the
Trustee or any Holder in enforcing any rights under this Section 10.01.
(j) Upon request of the Trustee, the Company shall execute and
deliver such further instruments and do such further acts as may be reasonably
necessary or proper to carry out more effectively the purpose of this Indenture.
SECTION 10.02. Limitation on Liability. (a) Any other term or
provision of this Indenture to the contrary notwithstanding, (i) the maximum
aggregate amount of the Guaranteed Obligations guaranteed hereunder by the
Company shall not
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exceed the maximum amount that can be hereby guaranteed without rendering this
Indenture, as it relates to the Company, voidable under applicable law relating
to fraudulent conveyance or fraudulent transfer or similar laws affecting the
rights of creditors generally and (ii) no waiver, modification, indulgence or
circumstance shall, without the consent of the Company, increase the principal
amount of a Security or the interest rate thereon (and, if applicable, the
premium or Additional Amounts in respect thereof) except as provided in such
Security.
(b) The Note Guarantee as to the Company shall terminate and
be of no further force or effect and the Company shall be deemed to be released
from all obligations under this Article 10 (without any further action by the
Trustee or the Holders) upon (i) the merger or consolidation of the Company with
or into any Person other than a Subsidiary or Affiliate of the Company where the
Company is not the surviving entity of such consolidation or merger or (ii) the
sale, conveyance or transfer of all or substantially all of its assets;
provided, however, that such merger, consolidation sale, conveyance or transfer
shall comply with Section 5.01(b). At the request of the Issuer, the Trustee
shall execute and deliver an appropriate instrument evidencing such release (in
the form provided by the Issuer).
SECTION 10.03. Successors and Assigns. This Article 10 shall
be binding upon the Company and its successors and assigns and shall inure to
the benefit of the successors and assigns of the Trustee and the Holders and, in
the event of any transfer or assignment of rights by any Holder or the Trustee,
the rights and privileges conferred upon that party in this Indenture and in the
Securities shall automatically extend to and be vested in such transferee or
assignee, all subject to the terms and conditions of this Indenture.
SECTION 10.04. No Waiver. Neither a failure nor a delay on the
part of either the Trustee or the Holders in exercising any right, power or
privilege under this Article 10 shall operate as a waiver thereof, nor shall a
single or partial exercise thereof preclude any other or further exercise of any
right, power or privilege. The rights, remedies and benefits of the Trustee and
the Holders 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, nor the consent to any departure by
the Company therefrom, shall in any event be effective unless the same shall be
in writing and signed by the Trustee, 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 the Company in any case shall entitle the Company to any
other or further notice or demand in the same, similar or other circumstances.
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SECTION 10.06. Execution and Non-Impairment. To further
evidence the Note Guarantee, the Company agrees to execute a Note Guarantee to
be endorsed on each Security ordered to be authenticated and delivered by the
Trustee. The failure to endorse the Note Guarantee on any Security shall not
affect or impair the validity thereof.
ARTICLE 11
Miscellaneous
SECTION 11.01. Trust Indenture Act Controls. If and to the
extent that any provision of this Indenture limits, qualifies or conflicts with
the duties imposed by, or with another provision (an "incorporated provision")
included in this Indenture by operation of, Sections 310 to 318 of the TIA,
inclusive, such imposed duties or incorporated provision shall control.
SECTION 11.02. Notices. Any notice or communication shall be
in writing (which may be by facsimile) and delivered in person or mailed by
first-class mail addressed as follows:
if to the Issuer or the Company:
Millennium Chemicals Inc.
▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
Attention of:
Senior Vice President - General Counsel and Secretary
if to the Trustee:
The Bank of New York
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Attention of:
Corporate Trust Administration
The Issuer, the Company or the Trustee by notice to the other
may designate additional or different addresses for subsequent notices or
communications.
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Any notice or communication mailed to a Holder shall be
mailed, first class mail, to the Holder at the Holder's address as it appears on
the registration books of the Registrar and shall be sufficiently given if so
mailed within the time prescribed.
Failure to mail a notice or communication to a Holder or any
defect in it shall not affect its sufficiency with respect to other Holders. If
a notice or communication is mailed in the manner provided above, it is duly
given, whether or not the addressee receives it.
SECTION 11.03. Communication by Holders with Other Holders.
Holders may communicate pursuant to Section 312(b) of the TIA with other Holders
with respect to their rights under this Indenture or the Securities. The Issuer,
the Company, the Trustee, the Registrar and anyone else shall have the
protection of Section 312(c) of the TIA.
SECTION 11.04. Certificate and Opinion as to Conditions
Precedent. Upon any request or application by the Issuer to the Trustee to take
or refrain from taking any action under this Indenture, the Issuer shall furnish
to the Trustee:
(a) an Officers' Certificate in form reasonably satisfactory
to the Trustee stating that, in the opinion of the signers, all
conditions precedent, if any, provided for in this Indenture relating
to the proposed action have been complied with; and
(b) an Opinion of Counsel in form reasonably satisfactory to
the Trustee stating that, in the opinion of such counsel, all such
conditions precedent have been complied with.
SECTION 11.05. Statements Required in Certificate or Opinion.
Each certificate or opinion with respect to compliance with a covenant or
condition provided for in this Indenture (other than pursuant to Section 4.09)
shall include:
(a) a statement that the individual making such certificate or
opinion has read such covenant or condition;
(b) 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;
(c) 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
84
(d) a statement as to whether or not, in the opinion of such
individual, such covenant or condition has been complied with.
SECTION 11.06. When Securities Disregarded. In determining
whether the Holders of the required principal amount of Securities have
concurred in any direction, waiver or consent, Securities owned by the Issuer,
the Company or by any Person directly or indirectly controlling or controlled by
or under direct or indirect common control with the Issuer or the Company shall
be disregarded and deemed not to be outstanding, except that, for the purpose of
determining whether the Trustee shall be protected in relying on any such
direction, waiver or consent, only Securities which a Trust Officer of the
Trustee actually knows are so owned shall be so disregarded. Subject to the
foregoing, only Securities outstanding at the time shall be considered in any
such determination.
SECTION 11.07. Rules by Trustee, Paying Agent and Registrar.
The Trustee may make reasonable rules for action by or a meeting of Holders. The
Registrar and the Paying Agent may make reasonable rules for their functions.
SECTION 11.08. Legal Holidays. A "Legal Holiday" is a
Saturday, a Sunday or other day on which banking institutions are not required
by law or regulation to be open in the State of New York. If a payment date is a
Legal Holiday, payment shall be made on the next succeeding day that is not a
Legal Holiday, and no interest shall accrue for the intervening period. If a
regular record date is a Legal Holiday, the record date shall not be affected.
SECTION 11.09. GOVERNING LAW. THIS INDENTURE AND THE
SECURITIES SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF
THE STATE OF NEW YORK BUT WITHOUT GIVING EFFECT TO APPLICABLE PRINCIPLES OF
CONFLICTS OF LAW TO THE EXTENT THAT THE APPLICATION OF THE LAWS OF ANOTHER
JURISDICTION WOULD BE REQUIRED THEREBY.
SECTION 11.10. No Recourse Against Others. A director,
officer, employee, incorporator or stockholder, as such, of the Issuer or the
Company, shall not have any liability for any obligations of the Issuer or the
Company under the Securities or this Indenture or for any claim based on, in
respect of or by reason of such obligations or their creation. By accepting a
Security, each Holder shall waive and release all such liability. The waiver and
release shall be part of the consideration for the issue of the Securities.
SECTION 11.11. Successors. All agreements of the Issuer and
the Company in this Indenture and the Securities shall bind its successors. All
agreements of the Trustee in this Indenture shall bind its successors.
85
SECTION 11.12. Multiple Originals. The parties may sign any
number of copies of this Indenture. Each signed copy shall be an original, but
all of them together represent the same agreement. One signed copy is enough to
prove this Indenture.
SECTION 11.13. Table of Contents; Headings. The table of
contents, cross-reference sheet and headings of the Articles and Sections of
this Indenture have been inserted for convenience of reference only, are not
intended to be considered a part hereof and shall not modify or restrict any of
the terms or provisions hereof.
IN WITNESS WHEREOF, the parties have caused this Indenture to
be duly executed as of the date first written above.
MILLENNIUM AMERICA INC.,
by /s/ C. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
------------------------------------------
Name: C. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Vice President
MILLENNIUM CHEMICALS INC.,
by /s/ C. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
------------------------------------------
Name: C. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Vice President
THE BANK OF NEW YORK, as Trustee,
by /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇
------------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇
Title:
APPENDIX A
PROVISIONS RELATING TO ORIGINAL SECURITIES,
ADDITIONAL SECURITIES,
PRIVATE EXCHANGE SECURITIES
AND EXCHANGE SECURITIES
1. Definitions
1.1 Definitions
For the purposes of this Appendix A the following terms shall have the
meanings indicated below:
"Applicable Procedures" means, with respect to any transfer or
transaction involving a Regulation S Global Security or beneficial interest
therein, the rules and procedures of the Depositary for such Global Security,
Euroclear and Clearstream, in each case to the extent applicable to such
transaction and as in effect from time to time.
"Clearstream" means Clearstream Banking, societe anonyme, or
any successor securities clearing agency.
"Definitive Security" means a certificated Initial Security,
Private Exchange Security or Exchange Security (bearing the Restricted
Securities Legend if the transfer of such Security is restricted by applicable
law) that does not include the Global Securities Legend.
"Depositary" means The Depository Trust Company, its nominees
and their respective successors.
"Euroclear" means the Euroclear Clearance System or any
successor securities clearing agency.
"Global Securities Legend" means the legend set forth under
that caption in Exhibit A to this Indenture.
"IAI" means an institutional "accredited investor" as
described in Rule 501(a)(1), (2), (3) or (7) under the Securities Act.
"Initial Purchasers" means ▇.▇. ▇▇▇▇▇▇ Securities Inc., and
Banc of America Securities LLC.
"Private Exchange" means an offer by the Issuer, pursuant to a
Registration Agreement, to issue and deliver to certain purchasers, in exchange
for the
2
Initial Securities held by such purchasers as part of their initial
distribution, a like aggregate principal amount of Private Exchange Securities.
"Private Exchange Securities" means the Securities of the
Issuer issued in exchange for Initial Securities pursuant to this Indenture in
connection with a Private Exchange pursuant to a Registration Agreement.
"Purchase Agreement" means (a) the Purchase Agreement dated
June 13, 2001, among the Issuer, the Company and the Initial Purchasers and (b)
any other similar Purchase Agreement relating to Additional Securities..
"QIB" means a "qualified institutional buyer" as defined in
Rule 144A.
"Registered Exchange Offer" means an offer by the Issuer,
pursuant to a Registration Agreement, to certain Holders of Initial Securities,
to issue and deliver to such Holders, in exchange for their Initial Securities,
a like aggregate principal amount of Exchange Securities registered under the
Securities Act.
"Registration Agreement" means (a) the Exchange and
Registration Rights Agreement dated June 18, 2001, among the Issuer, the Company
and the Initial Purchasers and (b) any other similar Exchange and Registration
Rights Agreement relating to Additional Securities.
"Regulation S" means Regulation S under the Securities Act.
"Regulation S Securities" means all Initial Securities offered
and sold outside the United States in reliance on Regulation S.
"Restricted Period", with respect to any Initial Securities,
means the period of 40 consecutive days beginning on and including the later of
(a) the day on which such Initial Securities are first offered to persons other
than distributors (as defined in Regulation S under the Securities Act) in
reliance on Regulation S, notice of which day shall be promptly given by the
Issuer to the Trustee, and (b) the Issue Date with respect to such Initial
Securities.
"Restricted Securities Legend" means the legend set forth in
Section 2.3(e)(i) herein.
"Rule 501" means Rule 501(a)(1), (2), (3) or (7) under the
Securities Act.
"Rule 144A" means Rule 144A under the Securities Act.
3
"Rule 144A Securities" means all Initial Securities offered
and sold to QIBs in reliance on Rule 144A.
"Securities Act" means the Securities Act of 1933, as amended.
"Securities Custodian" means the custodian with respect to a
Global Security (as appointed by the Depositary) or any successor person
thereto, who shall initially be the Trustee.
"Shelf Registration Statement" means a registration statement
filed by the Issuer in connection with an offer and sale of Initial Securities
pursuant to a Registration Agreement.
"Transfer Restricted Securities" means Definitive Securities
and any other Securities that bear or are required to bear the Restricted
Securities Legend.
1.2 Other Definitions
Term: Defined in Section:
---- ------------------
"Agent Members".........................................................2.1(c)
"IAI Global Security"...................................................2.1(b)
"Global Security".......................................................2.1(b)
"Regulation S Global Security"..........................................2.1(b)
"Rule 144A Global Security".............................................2.1(b)
2. The Securities
2.1 Form and Dating
(a) The Original Securities issued on the date hereof will be
(i) offered and sold by the Issuer pursuant to a Purchase Agreement and (ii)
resold, initially only to (1) QIBs in reliance on Rule 144A and (2) Persons
other than U.S. Persons (as defined in Regulation S) in reliance on Regulation
S. Such Original Securities may thereafter be transferred to, among others,
QIBs, purchasers in reliance on Regulation S and, except as set forth below,
IAIs in accordance with Rule 501. Additional Securities offered after the date
hereof may be offered and sold by the Issuer from time to time pursuant to one
or more Purchase Agreements in accordance with applicable law.
(b) Global Securities. Rule 144A Securities shall be issued
initially in the form of one or more permanent global Securities in definitive,
fully registered form (collectively, the "Rule 144A Global Security") and
Regulation S Securities shall be issued initially in the form of one or more
global Securities (collectively, the
4
"Regulation S Global Security"), in each case without interest coupons and
bearing the Global Securities Legend and Restricted Securities Legend, which
shall be deposited on behalf of the purchasers of the Securities represented
thereby with the Securities Custodian, and registered in the name of the
Depositary or a nominee of the Depositary, duly executed by the Issuer and
authenticated by the Trustee as provided in this Indenture. One or more global
securities in definitive, fully registered form without interest coupons and
bearing the Global Securities Legend and the Restricted Securities Legend
(collectively, the "IAI Global Security") shall also be issued on the Closing
Date, deposited with the Securities Custodian, and registered in the name of the
Depositary or a nominee of the Depositary, duly executed by the Issuer and
authenticated by the Trustee as provided in this Indenture to accommodate
transfers of beneficial interests in the Securities to IAIs subsequent to the
initial distribution. Beneficial ownership interests in the Regulation S Global
Security shall not be exchangeable for interests in the Rule 144A Global
Security, the IAI Global Security or any other Security without a Restricted
Securities Legend until the expiration of the Restricted Period. The Rule 144A
Global Security, the IAI Global Security and the Regulation S Global Security
are each referred to herein as a "Global Security" and are collectively referred
to herein as "Global Securities", provided, that the term "Global Security" when
used in Sections 2.1(b)(third paragraph), 2.1(c), 2.3(g)(i), 2.3(h)(i) and 2.4
shall also include any Security in global form issued in connection with a
Registered Exchange Offer or Private Exchange. The aggregate principal amount of
the Global Securities may from time to time be increased or decreased by
adjustments made on the records of the Trustee and the Depositary or its nominee
and on the schedules thereto as hereinafter provided.
(c) Book-Entry Provisions. This Section 2.1(c) shall apply
only to a Global Security deposited with or on behalf of the Depositary.
The Issuer shall execute and the Trustee shall, in accordance
with this Section 2.1(c) and Section 2.2 and pursuant to an order of the Issuer
signed by two Officers, authenticate and deliver initially one or more Global
Securities that (i) shall be registered in the name of the Depositary for such
Global Security or Global Securities or the nominee of such Depositary and (ii)
shall be delivered by the Trustee to such Depositary or pursuant to such
Depositary's instructions or held by the Trustee as Securities Custodian.
Members of, or participants in, the Depositary ("Agent
Members") shall have no rights under this Indenture with respect to any Global
Security held on their behalf by the Depositary or by the Trustee as Securities
Custodian or under such Global Security, and the Depositary may be treated by
the Issuer, the Trustee and any agent of the Issuer or the Trustee as the
absolute owner of such Global Security for all purposes whatsoever.
Notwithstanding the foregoing, nothing herein shall prevent the Issuer, the
Trustee or any agent of the Issuer or the Trustee from giving effect to any
written certification, proxy or other authorization furnished by the Depositary
or impair, as
5
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.
(d) Definitive Securities. Except as provided in Section 2.3
or 2.4, owners of beneficial interests in Global Securities will not be entitled
to receive physical delivery of certificated Securities.
2.2 Authentication. The Trustee shall authenticate and make available
for delivery upon a written order of the Issuer signed by two Officers (a)
Original Securities for original issue on the date hereof in an aggregate
principal amount of $275,000,000, (b) subject to the terms of this Indenture,
Additional Securities in an unlimited aggregate principal amount and (c) the (i)
Exchange Securities for issue only in a Registered Exchange Offer and (ii)
Private Exchange Securities for issue only in a Private Exchange, in the case of
each of (i) and (ii) pursuant to a Registration Agreement and for a like
principal amount of Initial Securities exchanged pursuant thereto. Such order
shall specify the amount of the Securities to be authenticated, the date on
which the original issue of Securities is to be authenticated and whether the
Securities are to be Initial Securities, Exchange Securities or Private Exchange
Securities. The aggregate principal amount of Securities that may be outstanding
at any time is unlimited.
2.3 Transfer and Exchange. (a) Transfer and Exchange of Definitive
Securities. When Definitive Securities are presented to the Registrar with a
request:
(i) to register the transfer of such Definitive Securities; or
(ii) to exchange such Definitive Securities for an equal
principal amount of Definitive Securities of other authorized
denominations,
the Registrar shall register the transfer or make the exchange as requested if
its reasonable requirements for such transaction are met; provided, however,
that the Definitive Securities surrendered for transfer or exchange:
(1) shall be duly endorsed or accompanied by a written
instrument of transfer in form reasonably satisfactory to the Issuer
and the Registrar, duly executed by the Holder thereof or his attorney
duly authorized in writing; and
(2) in the case of Transfer Restricted Securities, are
accompanied by the following additional information and documents, as
applicable:
(A) if such Definitive Securities are being delivered
to the Registrar by a Holder for registration in the name of
such Holder, without
6
transfer, a certification from such Holder to that effect (in
the form set forth on the reverse side of the Initial
Security); or
(B) if such Definitive Securities are being
transferred to the Issuer, a certification to that effect (in
the form set forth on the reverse side of the Initial
Security); or
(C) if such Definitive Securities are being
transferred pursuant to an exemption from registration in
accordance with Rule 144 under the Securities Act or in
reliance upon another exemption from the registration
requirements of the Securities Act, (x) a certification to
that effect (in the form set forth on the reverse side of the
Initial Security) and (y) if the Issuer so requests, an
opinion of counsel or other evidence reasonably satisfactory
to it as to the compliance with the restrictions set forth in
the legend set forth in Section 2.3(e)(i).
(b) Restrictions on Transfer of a Definitive Security for a
Beneficial Interest in a Global Security. A Definitive Security may not be
exchanged for a beneficial interest in a Global Security except upon
satisfaction of the requirements set forth below. Upon receipt by the Trustee of
a Definitive Security, duly endorsed or accompanied by a written instrument of
transfer in form reasonably satisfactory to the Issuer and the Registrar,
together with:
(i) certification (in the form set forth on the reverse side
of the Initial Security) that such Definitive Security is being
transferred (1) to a QIB in accordance with Rule 144A, (2) to an IAI
that has furnished to the Trustee a signed letter substantially in the
form of Exhibit C or (3) outside the United States in an offshore
transaction within the meaning of Regulation S and in compliance with
Rule 904 under the Securities Act; and
(ii) written instructions directing the Trustee to make, or to
direct the Securities Custodian to make, an adjustment on its books and
records with respect to such Global Security to reflect an increase in
the aggregate principal amount of the Securities represented by the
Global Security, such instructions to contain information regarding the
Depositary account to be credited with such increase, then the Trustee
shall cancel such Definitive Security and cause, or direct the
Securities Custodian to cause, in accordance with the standing
instructions and procedures existing between the Depositary and the
Securities Custodian, the aggregate principal amount of Securities
represented by the Global Security to be increased by the aggregate
principal amount of the Definitive Security to be exchanged and shall
credit or cause to be credited to the account of the Person specified
in such instructions a beneficial interest in the Global Security equal
to the principal amount of the Definitive Security so canceled. If no
Global
7
Securities are then outstanding and the Global Security has not been
previously exchanged for certificated securities pursuant to Section
2.4, the Issuer shall issue and the Trustee shall authenticate, upon
written order of the Issuer in the form of an Officers' Certificate, a
new Global Security in the appropriate principal amount.
(c) Transfer and Exchange of Global Securities. (i) The
transfer and exchange of Global Securities or beneficial interests therein shall
be effected through the Depositary, in accordance with this Indenture (including
applicable restrictions on transfer set forth herein, if any) and the procedures
of the Depositary therefor. A transferor of a beneficial interest in a Global
Security shall deliver 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 such Global Security or
another Global Security and such account shall be credited in accordance with
such order with a beneficial interest in the applicable Global Security and the
account of the Person making the transfer shall be debited by an amount equal to
the beneficial interest in the Global Security being transferred. Transfers by
an owner of a beneficial interest in the Rule 144A Global Security or the IAI
Global Security to a transferee who takes delivery of such interest through the
Regulation S Global Security, whether before or after the expiration of the
Restricted Period, shall be made only upon receipt by the Trustee of a
certification in the form provided on the reverse of the Initial Securities from
the transferor to the effect that such transfer is being made in accordance with
Regulation S or (if available) Rule 144 under the Securities Act and that, if
such transfer is being made prior to the expiration of the Restricted Period,
the interest transferred shall be held immediately thereafter through Euroclear
or Clearstream. In the case of a transfer of a beneficial interest in either the
Regulation S Global Security or the Rule 144A Global Security for an interest in
the IAI Global Security, the transferee must furnish a signed letter
substantially in the form of Exhibit C to the Trustee.
(ii) If the proposed transfer is a transfer of a beneficial
interest in one Global Security to a beneficial interest in another
Global Security, the Registrar shall reflect on its books and records
the date and an increase in the principal amount of the Global Security
to which such interest is being transferred in an amount equal to the
principal amount of the interest to be so transferred, and the
Registrar shall reflect on its books and records the date and a
corresponding decrease in the principal amount of Global Security from
which such interest is being transferred.
(iii) Notwithstanding any other provisions of this Appendix
(other than the provisions set forth in Section 2.4), a Global Security
may not be transferred as a whole except by the Depositary to a nominee
of the Depositary or by a nominee of the Depositary to the Depositary
or another nominee of the Depositary or by the
8
Depositary or any such nominee to a successor Depositary or a nominee
of such successor Depositary.
(iv) In the event that a Global Security is exchanged for
Definitive Securities pursuant to Section 2.4 prior to the consummation
of a Registered Exchange Offer or the effectiveness of a Shelf
Registration Statement with respect to such Securities, such Securities
may be exchanged only in accordance with such procedures as are
substantially consistent with the provisions of this Section 2.3
(including the certification requirements set forth on the reverse of
the Initial Securities intended to ensure that such transfers comply
with Rule 144A, Regulation S or such other applicable exemption from
registration under the Securities Act, as the case may be) and such
other procedures as may from time to time be adopted by the Issuer.
(d) Restrictions on Transfer of Regulation S Global Security.
(i) Prior to the expiration of the Restricted Period, interests in the
Regulation S Global Security may only be held through Euroclear or Clearstream.
During the Restricted Period, beneficial ownership interests in the Regulation S
Global Security may only be sold, pledged or transferred through Euroclear or
Clearstream in accordance with the Applicable Procedures and only (1) to the
Issuer, (2) so long as such security is eligible for resale pursuant to Rule
144A, to a person whom the selling holder reasonably believes is a QIB that
purchases for its own account or for the account of a QIB to whom notice is
given that the resale, pledge or transfer is being made in reliance on Rule
144A, (3) in an offshore transaction in accordance with Regulation S, (4)
pursuant to an exemption from registration under the Securities Act provided by
Rule 144 (if applicable) under the Securities Act, (5) to an IAI purchasing for
its own account, or for the account of such an IAI, in a minimum principal
amount of Securities of $250,000 or (6) pursuant to an effective registration
statement under the Securities Act, in each case in accordance with any
applicable securities laws of any state of the United States. Prior to the
expiration of the Restricted Period, transfers by an owner of a beneficial
interest in the Regulation S Global Security to a transferee who takes delivery
of such interest through the Rule 144A Global Security or the IAI Global
Security shall be made only in accordance with Applicable Procedures and upon
receipt by the Trustee of a written certification from the transferor of the
beneficial interest in the form provided on the reverse of the Initial Security
to the effect that such transfer is being made to (1) a QIB within the meaning
of Rule 144A in a transaction meeting the requirements of Rule 144A or (2) an
IAI purchasing for its own account, or for the account of such an IAI, in a
minimum principal amount of the Securities of $250,000. Such written
certification shall no longer be required after the expiration of the Restricted
Period. In the case of a transfer of a beneficial interest in the Regulation S
Global Security for an interest in the IAI Global Security, the transferee must
furnish a signed letter substantially in the form of Exhibit C to the Trustee.
9
(ii) Upon the expiration of the Restricted Period, beneficial
ownership interests in the Regulation S Global Security shall be
transferable in accordance with applicable law and the other terms of
this Indenture.
(e) Legend.
(i) Except as permitted by the following paragraphs (ii),
(iii) or (iv), each Security certificate evidencing the Global
Securities and the Definitive Securities (and all Securities issued in
exchange therefor or in substitution thereof) shall bear a legend in
substantially the following form (each defined term in the legend being
defined as such for purposes of the legend only):
"THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF
1933, AS AMENDED (THE "SECURITIES ACT"), OR THE SECURITIES LAWS OF ANY
STATE OR OTHER JURISDICTION. NEITHER THIS SECURITY NOR ANY INTEREST OR
PARTICIPATION HEREIN MAY BE REOFFERED, SOLD, ASSIGNED, TRANSFERRED,
PLEDGED, ENCUMBERED OR OTHERWISE DISPOSED OF IN THE ABSENCE OF SUCH
REGISTRATION OR UNLESS SUCH TRANSACTION IS EXEMPT FROM, OR NOT SUBJECT
TO, SUCH REGISTRATION.
THE HOLDER OF THIS SECURITY BY ITS ACCEPTANCE HEREOF AGREES TO OFFER,
SELL OR OTHERWISE TRANSFER SUCH SECURITY, PRIOR TO THE DATE (THE
"RESALE RESTRICTION TERMINATION DATE") WHICH IS TWO YEARS AFTER THE
LATER OF THE ORIGINAL ISSUE DATE HEREOF AND THE LAST DATE ON WHICH THE
ISSUER OR ANY AFFILIATE OF THE ISSUER WAS THE OWNER OF THIS SECURITY
(OR ANY PREDECESSOR OF SUCH SECURITY), ONLY (A) TO THE ISSUER (OR ITS
SUBSIDIARIES), (B) PURSUANT TO A REGISTRATION STATEMENT THAT HAS BEEN
DECLARED EFFECTIVE UNDER THE SECURITIES ACT, (C) FOR SO LONG AS THE
SECURITIES ARE ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER THE
SECURITIES ACT ("RULE 144A"), TO A PERSON IT REASONABLY BELIEVES IS A
"QUALIFIED INSTITUTIONAL BUYER" AS DEFINED IN RULE 144A THAT PURCHASES
FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED INSTITUTIONAL
BUYER TO WHOM NOTICE IS GIVEN THAT THE TRANSFER IS BEING MADE IN
RELIANCE ON RULE 144A, (D) PURSUANT TO OFFERS AND SALES THAT OCCUR
OUTSIDE THE UNITED STATES WITHIN THE MEANING OF REGULATION S UNDER THE
SECURITIES ACT, (E) TO AN "ACCREDITED INVESTOR" WITHIN THE MEANING OF
RULE 501(a)(1), (2), (3) OR (7) UNDER THE SECURITIES ACT THAT
10
IS AN INSTITUTIONAL ACCREDITED INVESTOR ACQUIRING THE SECURITY FOR ITS
OWN ACCOUNT OR FOR THE ACCOUNT OF SUCH AN INSTITUTIONAL ACCREDITED
INVESTOR, IN EACH CASE IN A MINIMUM PRINCIPAL AMOUNT OF THE SECURITIES
OF $250,000, FOR INVESTMENT PURPOSES AND NOT WITH A VIEW TO OR FOR
OFFER OR SALE IN CONNECTION WITH ANY DISTRIBUTION IN VIOLATION OF THE
SECURITIES ACT OR (F) PURSUANT TO ANY OTHER AVAILABLE EXEMPTION FROM
THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT, SUBJECT TO THE
ISSUER'S AND THE TRUSTEE'S RIGHT PRIOR TO ANY SUCH OFFER, SALE OR
TRANSFER PURSUANT TO CLAUSES (D), (E) OR (F) TO REQUIRE THE DELIVERY OF
AN OPINION OF COUNSEL, CERTIFICATION AND/OR OTHER INFORMATION
SATISFACTORY TO EACH OF THEM. THIS LEGEND WILL BE REMOVED UPON THE
REQUEST OF THE HOLDER AFTER THE RESALE RESTRICTION TERMINATION DATE."
Each Definitive Security shall bear the following additional legend:
"IN CONNECTION WITH ANY TRANSFER, THE HOLDER WILL DELIVER TO THE
REGISTRAR AND TRANSFER AGENT SUCH CERTIFICATES AND OTHER INFORMATION AS
SUCH TRANSFER AGENT MAY REASONABLY REQUIRE TO CONFIRM THAT THE TRANSFER
COMPLIES WITH THE FOREGOING RESTRICTIONS."
(ii) Upon any sale or transfer of a Transfer Restricted
Security that is a Definitive Security, the Registrar shall permit the
Holder thereof to exchange such Transfer Restricted Security for a
Definitive Security that does not bear the legends set forth above and
rescind any restriction on the transfer of such Transfer Restricted
Security if the Holder certifies in writing to the Registrar that its
request for such exchange was made in reliance on Rule 144 (such
certification to be in the form set forth on the reverse of the Initial
Security).
(iii) After a transfer of any Original or Additional
Securities or Private Exchange Securities during the period of the
effectiveness of a Shelf Registration Statement with respect to such
Original or Additional Securities or Private Exchange Securities, as
the case may be, all requirements pertaining to the Restricted
Securities Legend on such Original or Additional Securities or such
Private Exchange Securities shall cease to apply and the requirements
that any such Original or Additional Securities or such Private
Exchange Securities be issued in global form shall continue to apply.
11
(iv) Upon the consummation of a Registered Exchange Offer with
respect to the Original or Additional Securities pursuant to which
Holders of such Original or Additional Securities are offered Exchange
Securities in exchange for their Original or Additional Securities, all
requirements pertaining to Original or Additional Securities that
Original or Additional Securities be issued in global form shall
continue to apply, and Exchange Securities in global form without the
Restricted Securities Legend shall be available to Holders that
exchange such Original or Additional Securities in such Registered
Exchange Offer.
(v) Upon the consummation of a Private Exchange with respect
to the Original or Additional Securities pursuant to which Holders of
such Original or Additional Securities are offered Private Exchange
Securities in exchange for their Original or Additional Securities, all
requirements pertaining to such Original or Additional Securities that
Original or Additional Securities be issued in global form shall
continue to apply, and Private Exchange Securities in global form with
the Restricted Securities Legend shall be available to Holders that
exchange such Original or Additional Securities in such Private
Exchange.
(vi) Upon a sale or transfer after the expiration of the
Restricted Period of any Initial Security acquired pursuant to
Regulation S, all requirements that such Initial Security bear the
Restricted Securities Legend shall cease to apply and the requirements
requiring any such Initial Security be issued in global form shall
continue to apply.
(vii) Any Additional Securities sold in a registered offering
shall not be required to bear the Restricted Securities Legend.
(f) Cancelation or Adjustment of Global Security. At such time
as all beneficial interests in a Global Security have either been exchanged for
Definitive Securities, transferred, redeemed, repurchased or canceled, such
Global Security shall be returned by the Depositary to the Trustee for
cancelation or retained and canceled by the Trustee. At any time prior to such
cancelation, if any beneficial interest in a Global Security is exchanged for
Definitive Securities, transferred in exchange for an interest in another Global
Security, redeemed, repurchased or canceled, the principal amount of Securities
represented by such Global Security shall be reduced and an adjustment shall be
made on the books and records of the Trustee (if it is then the Securities
Custodian for such Global Security) with respect to such Global Security, by the
Trustee or the Securities Custodian, to reflect such reduction.
(g) Obligations with Respect to Transfers and Exchanges of
Securities.
(i) To permit registrations of transfers and exchanges, the
Issuer shall execute and the Trustee shall authenticate, Definitive
Securities and Global Securities at the Registrar's request.
12
(ii) No service charge shall be made for any registration of
transfer or exchange, but the Issuer 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 exchanges pursuant to Sections 2.07, 3.06, 4.06, 4.08 and 9.05 of
this Indenture).
(iii) Prior to the due presentation for registration of
transfer of any Security, the Issuer, the Trustee, the Paying Agent or
the Registrar may deem and treat the person in whose name a Security is
registered as the absolute owner of such Security for the purpose of
receiving payment of principal of and interest on such Security and for
all other purposes whatsoever, whether or not such Security is overdue,
and none of the Issuer, the Trustee, the Paying Agent or the Registrar
shall be affected by notice to the contrary.
(iv) All Securities issued upon any transfer or exchange
pursuant to the terms of this Indenture shall evidence the same debt
and shall be entitled to the same benefits under this Indenture as the
Securities surrendered upon such transfer or exchange.
(h) No Obligation of the Trustee.
(i) The Trustee shall have no responsibility or obligation to
any beneficial owner of a Global Security, a member of, or a
participant in the Depositary or any other Person with respect to the
accuracy of the records of the Depositary or its nominee or of any
participant or member thereof, with respect to any ownership interest
in the Securities or with respect to the delivery to any participant,
member, beneficial owner or other Person (other than the Depositary) of
any notice (including any notice of redemption or repurchase) or the
payment of any amount, under or with respect to such Securities. All
notices and communications to be given to the Holders and all payments
to be made to Holders under the Securities shall be given or made only
to the registered Holders (which shall be the Depositary or its nominee
in the case of a Global Security). The rights of beneficial owners in
any Global Security shall be exercised only through the Depositary
subject to the applicable rules and procedures of the Depositary. The
Trustee may rely and shall be fully protected in relying upon
information furnished by the Depositary with respect to its members,
participants and any beneficial owners.
(ii) The Trustee shall have no obligation or duty to monitor,
determine or inquire as to compliance with any restrictions on transfer
imposed under this Indenture or under applicable law with respect to
any transfer of any interest in any Security (including any transfers
between or among Depositary participants,
13
members or beneficial owners in any Global Security) other than to
require delivery of such certificates and other documentation or
evidence as are expressly required by, and to do so if and when
expressly required by, the terms of this Indenture, and to examine the
same to determine substantial compliance as to form with the express
requirements hereof.
2.4 Definitive Securities
(a) A Global Security deposited with the Depositary or with
the Trustee as Securities Custodian pursuant to Section 2.1 or issued in
connection with a Registered Exchange Offer or Private Exchange 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 2.3 and (i) the Depositary notifies the Issuer
that it is unwilling or unable to continue as a Depositary for such Global
Security or if at any time the Depositary ceases to be a "clearing agency"
registered under the Exchange Act, and a successor depositary is not appointed
by the Issuer within 90 days of such notice or after the Issuer becomes aware of
such cessation, or (ii) an Event of Default has occurred and is continuing or
(iii) the Issuer, in its sole discretion, notifies the Trustee in writing that
it elects to cause the issuance of certificated Securities under this Indenture.
(b) Any Global Security that is transferable to the beneficial
owners thereof pursuant to this Section 2.4 shall be surrendered by the
Depositary to the Trustee, 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 Definitive Securities of authorized denominations. Any
portion of a Global Security transferred pursuant to this Section shall be
executed, authenticated and delivered only in denominations of $1,000 and any
integral multiple thereof and registered in such names as the Depositary shall
direct. Any certificated Initial Security in the form of a Definitive Security
delivered in exchange for an interest in the Global Security shall, except as
otherwise provided by Section 2.3(e), bear the Restricted Securities Legend.
(c) Subject to the provisions of Section 2.4(b), the
registered Holder of a Global Security may grant proxies and otherwise authorize
any Person, including Agent Members and Persons that may hold interests through
Agent Members, to take any action which a Holder is entitled to take under this
Indenture or the Securities.
(d) In the event of the occurrence of any of the events
specified in Section 2.4(a)(i), (ii) or (iii), the Issuer will promptly make
available to the Trustee a reasonable supply of Definitive Securities in fully
registered form without interest coupons.
EXHIBIT A
[FORM OF FACE OF INITIAL SECURITY]
[Global Securities Legend]
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED
REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"),
NEW YORK, NEW YORK, TO THE COMPANY OR ITS AGENT FOR REGISTRATION OF TRANSFER,
EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF
CEDE & CO. OR SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF
DTC (AND ANY PAYMENT IS MADE TO CEDE & CO., OR TO SUCH OTHER ENTITY AS IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER
USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS
THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
TRANSFERS OF THIS GLOBAL SECURITY SHALL BE LIMITED TO
TRANSFERS IN WHOLE, BUT NOT IN PART, TO DTC, TO NOMINEES OF DTC OR TO A
SUCCESSOR THEREOF OR SUCH SUCCESSOR'S NOMINEE AND TRANSFERS OF PORTIONS OF THIS
GLOBAL SECURITY SHALL BE LIMITED TO TRANSFERS MADE IN ACCORDANCE WITH THE
RESTRICTIONS SET FORTH IN THE INDENTURE REFERRED TO ON THE REVERSE HEREOF.
[Restricted Securities Legend]
THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT
OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR THE SECURITIES LAWS OF ANY STATE
OR OTHER JURISDICTION. NEITHER THIS SECURITY NOR ANY INTEREST OR PARTICIPATION
HEREIN MAY BE REOFFERED, SOLD, ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR
OTHERWISE DISPOSED OF IN THE ABSENCE OF SUCH REGISTRATION OR UNLESS SUCH
TRANSACTION IS EXEMPT FROM, OR NOT SUBJECT TO, SUCH REGISTRATION.
THE HOLDER OF THIS SECURITY BY ITS ACCEPTANCE HEREOF AGREES TO
OFFER, SELL OR OTHERWISE TRANSFER SUCH SECURITY, PRIOR TO THE DATE (THE "RESALE
RESTRICTION TERMINATION DATE") WHICH IS TWO YEARS AFTER THE LATER OF THE
ORIGINAL ISSUE DATE HEREOF AND THE LAST DATE ON WHICH THE ISSUER OR ANY
AFFILIATE OF THE ISSUER WAS THE OWNER OF THIS SECURITY (OR ANY PREDECESSOR OF
SUCH SECURITY), ONLY (A) TO THE ISSUER (OR ITS
2
SUBSIDIARIES), (B) PURSUANT TO A REGISTRATION STATEMENT THAT HAS BEEN DECLARED
EFFECTIVE UNDER THE SECURITIES ACT, (C) FOR SO LONG AS THE SECURITIES ARE
ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER THE SECURITIES ACT ("RULE
144A"), TO A PERSON IT REASONABLY BELIEVES IS A "QUALIFIED INSTITUTIONAL BUYER"
AS DEFINED IN RULE 144A THAT PURCHASES FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT
OF A QUALIFIED INSTITUTIONAL BUYER TO WHOM NOTICE IS GIVEN THAT THE TRANSFER IS
BEING MADE IN RELIANCE ON RULE 144A, (D) PURSUANT TO OFFERS AND SALES THAT
OCCUR OUTSIDE THE UNITED STATES WITHIN THE MEANING OF REGULATION S UNDER THE
SECURITIES ACT, (E) TO AN "ACCREDITED INVESTOR" WITHIN THE MEANING OF RULE
501(a)(1), (2), (3) OR (7) UNDER THE SECURITIES ACT THAT IS AN INSTITUTIONAL
ACCREDITED INVESTOR ACQUIRING THE SECURITY FOR ITS OWN ACCOUNT OR FOR THE
ACCOUNT OF SUCH AN INSTITUTIONAL ACCREDITED INVESTOR, IN EACH CASE IN A
MINIMUM PRINCIPAL AMOUNT OF THE SECURITIES OF $250,000, FOR INVESTMENT
PURPOSES AND NOT WITH A VIEW TO OR FOR OFFER OR SALE IN CONNECTION WITH ANY
DISTRIBUTION IN VIOLATION OF THE SECURITIES ACT OR (F) PURSUANT TO ANY OTHER
AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT,
SUBJECT TO THE ISSUER'S AND THE TRUSTEE'S RIGHT PRIOR TO ANY SUCH OFFER, SALE
OR TRANSFER PURSUANT TO CLAUSES (D), (E) OR (F) TO REQUIRE THE DELIVERY OF AN
OPINION OF COUNSEL, CERTIFICATION AND/OR OTHER INFORMATION SATISFACTORY TO EACH
OF THEM. THIS LEGEND WILL BE REMOVED UPON THE REQUEST OF THE HOLDER AFTER THE
RESALE RESTRICTION TERMINATION DATE.
Each Definitive Security shall bear the following additional legend:
IN CONNECTION WITH ANY TRANSFER, THE HOLDER WILL DELIVER TO THE REGISTRAR AND
TRANSFER AGENT SUCH CERTIFICATES AND OTHER INFORMATION AS SUCH TRANSFER AGENT
MAY REASONABLY REQUIRE TO CONFIRM THAT THE TRANSFER COMPLIES WITH THE FOREGOING
RESTRICTIONS.
No. $__________
9 1/4% Senior Note due 2008
CUSIP No. ______
ISIN No._____
MILLENNIUM AMERICA INC., a Delaware corporation, promises to
pay to [Cede & Co.], or registered assigns, the principal sum [of
Dollars] [listed on the Schedule of Increases or Decreases in Global Security
attached hereto](1) on June 15, 2008.
Interest Payment Dates: June 15 and December 15.
Record Dates: June 1 and December 1.
--------
(1) Use the Schedule of Increases and Decreases language if Note is in Global
Form
2
Additional provisions of this Security are set forth on the
other side of this Security.
IN WITNESS WHEREOF, the parties have caused this instrument to
be duly executed.
MILLENNIUM AMERICA INC.,
by
------------------------------------------
Name:
Title:
by
------------------------------------------
Name:
Title:
Dated:
TRUSTEE'S CERTIFICATE OF
AUTHENTICATION
THE BANK OF NEW YORK,
as Trustee, certifies
that this is one of
the Securities referred
to in the Indenture.
By:_________________________
Authorized Signatory
------------------
*
_/ If the Security is to be issued in global form, add the Global Securities
Legend and the attachment from Exhibit A captioned "TO BE ATTACHED TO GLOBAL
3
SECURITIES- SCHEDULE OF INCREASES OR DECREASES IN GLOBAL
SECURITY".
4
[FORM OF REVERSE SIDE OF INITIAL SECURITY]
9 1/4% Senior Note due 2008
1. Interest
(a) MILLENNIUM AMERICA INC., a Delaware 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
shall pay interest semiannually on June 15 and December 15 of each year.
Interest on the Securities shall accrue from the most recent date to which
interest has been paid or duly provided for or, if no interest has been paid or
duly provided for, from June 18, 2001, until the principal hereof is due.
Interest shall be computed on the basis of a 360-day year of twelve 30-day
months. The Issuer shall pay interest on overdue principal at the rate borne by
the Securities plus 1% per annum, and it shall pay interest on overdue
installments of interest at the same rate to the extent lawful.
(b) Liquidated Damages. The Holder of this Security is
entitled to the benefits of an Exchange and Registration Rights Agreement, dated
as of June 18, 2001, among the Issuer, Millennium Chemicals Inc. (such
corporation, and its successors and assigns under the Indenture hereinafter
referred to, being herein called the "Company") and the Initial Purchasers named
therein (the "Registration Agreement"). Capitalized terms used in this paragraph
(b) but not defined herein have the meanings assigned to them in the
Registration Agreement. If (i) the Shelf Registration Statement or Exchange
Offer Registration Statement, as applicable under the Registration Agreement, is
not filed with the SEC on or prior to 90 days after the Issue Date, (ii) the
Exchange Offer Registration Statement or the Shelf Registration Statement, as
the case may be, is not declared effective within 180 days after the Issue Date
(or in the case of a Shelf Registration Statement required to be filed in
response to a change in law or the applicable interpretations of the SEC's
staff, if later, within 45 days after publication of the change in law or
interpretation), (iii) the Registered Exchange Offer is not consummated on or
prior to 210 days after the Issue Date, or (iv) the Shelf Registration Statement
is filed and declared effective within 180 days after the Issue Date (or in the
case of a Shelf Registration Statement required to be filed in response to a
change in law or the applicable interpretations of the SEC's staff, if later,
within 45 days after publication of the change in law or interpretation) but
shall thereafter cease to be effective (at any time that the Issuer and the
Company are obligated to maintain the effectiveness thereof) without being
succeeded within 30 days by an additional Registration Statement filed and
declared effective (each such event referred to in clauses (i) through (iv), a
"Registration Default"), the Issuer and the Company shall be jointly and
severally obligated to pay liquidated damages to each Holder of Transfer
Restricted Securities,
5
during the period of such Registration Default, in an amount equal to $0.192 per
week per $1,000 principal amount of the Securities constituting Transfer
Restricted Securities held by such Holder until (i) the applicable Registration
Statement is filed, (ii) the Exchange Offer Registration Statement is declared
effective and the Registered Exchange Offer is consummated, (iii) the Shelf
Registration is declared effective or (iv) the Shelf Registration Statement
again becomes effective, as the case may be. Notwithstanding the foregoing
provisions, the Issuer and the Company may issue a notice that the Shelf
Registration Statement is unusable pending a material announcement and may issue
any notice suspending use of the Shelf Registration Statement required under
applicable securities laws to be issued and, in the event that the aggregate
number of days in any consecutive twelve-month period for which all such notices
are issued and effective exceeds 60 days in the aggregate, then the Issuer and
the Company shall be jointly and severally obligated to pay liquidated damages
to each Holder of Transfer Restricted Securities in an amount equal to $0.192
per week per $1,000 principal amount of Securities constituting Transfer
Restricted Securities held by such Holder. Upon the Issuer and the Company
declaring that the Shelf Registration Statement is useable after the period of
time described in the preceding sentence, accrual of liquidated damages shall
cease; provided, however, that if after any such cessation of the accrual of
liquidated damages, the Shelf Registration Statement again ceases to be useable
beyond the period permitted above, liquidated damages shall again accrue
pursuant to the foregoing provisions. All accrued liquidated damages shall be
paid to Holders in the same manner as interest payments on the Securities on
semi-annual payment dates which correspond to interest payment dates for the
Securities. Following the cure of all Registration Defaults, the accrual of
liquidated damages shall cease. The Trustee shall have no responsibility with
respect to the determination of the amount of any such liquidated damages. For
purposes of the foregoing, "Transfer Restricted Securities" means (i) each
Initial Security until the date on which such Initial Security has been
exchanged for a freely transferable Exchange Security in the Registered Exchange
Offer, (ii) each Initial Security or Private Exchange Security until the date on
which such Initial Security or Private Exchange Security has been effectively
registered under the Securities Act and disposed of in accordance with a Shelf
Registration Statement or (iii) each Initial Security or Private Exchange
Security until the date on which such Initial Security or Private Exchange
Security is distributed to the public pursuant to Rule 144 under the Securities
Act or is saleable pursuant to Rule 144(k) under the Securities Act.
2. Method of Payment
The Issuer shall pay interest on the Securities (except
defaulted interest) to the Persons who are registered Holders at the close of
business on the June 1 or December 1 next preceding the interest payment date
even if Securities are canceled after the record date and on or before the
interest payment date. Holders must surrender Securities to a Paying Agent to
collect principal payments. The Issuer shall pay principal, premium, if any,
liquidated damages, if any, and interest in money of the United States of
6
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, liquidated damages, if any, and
interest) shall be made by wire transfer of immediately available funds to the
accounts specified by The Depository Trust Company or any successor depositary.
The Issuer will make all payments in respect of a certificated Security
(including principal, premium, if any, interest and liquidated damages, if any),
at the office of the Paying Agent, except that, at the option of the Issuer,
payment of interest or liquidated damages may be made by mailing a check to the
registered address of each Holder thereof; provided, however, that payments on
the Securities may also be made, in the case of a Holder of at least $1,000,000
aggregate principal amount of Securities, by wire transfer to a U.S. dollar
account maintained by the payee with a bank in the United States if such Holder
elects payment by wire transfer by giving written notice to the Trustee or the
Paying Agent to such effect designating such account no later than 30 days
immediately preceding the relevant due date for payment (or such other date as
the Trustee may accept in its discretion).
3. Paying Agent and Registrar
Initially, The Bank of New York, a New York banking
corporation (the "Trustee"), will act as Paying Agent and Registrar. The Issuer
may appoint and change any Paying Agent or Registrar without notice. The Issuer,
the Company or any of the Company's 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 June 18, 2001 (the "Indenture"), among the Issuer, the Company and the
Trustee. The terms of the Securities include those stated in the Indenture and
those made part of the Indenture by reference to the Trust Indenture Act of 1939
(15 U.S.C. 'SS''SS' 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 terms and
provisions of the Indenture, and Holders (as defined in the Indenture) are
referred to the Indenture and the TIA for a statement of such terms and
provisions.
The Securities are senior unsecured obligations of the Issuer.
This Security is one of the [Original] [Additional] [Private Exchange]
Securities referred to in the Indenture. The Securities include the Original
Securities, the Additional Securities and any Exchange Securities and Private
Exchange Securities issued in exchange for Initial Securities pursuant to the
Indenture. The Original Securities, the Additional Securities and any Exchange
Securities and Private Exchange Securities are treated as a single class of
securities under the Indenture. The Indenture imposes certain limitations on the
ability of the Issuer, the Company and its Restricted Subsidiaries to, among
other
7
things, make certain Investments and other Restricted Payments, pay dividends
and other distributions, incur Indebtedness, enter into consensual restrictions
upon the payment of certain dividends and distributions by such Restricted
Subsidiaries, issue or sell shares of capital stock of such Restricted
Subsidiaries, enter into or permit certain transactions with Affiliates, create
or incur Liens, enter into sale/leaseback transactions and make asset sales. The
Indenture also imposes limitations on the ability of the Issuer and the Company
to consolidate or merge with or into any other Person or convey, transfer or
lease all or substantially all its property.
To guarantee the due and punctual payment of the principal,
interest and liquidated damages, if any, on the Securities and all other amounts
payable by the Issuer under the Indenture and the Securities when and as the
same shall be due and payable, whether at maturity, by acceleration or
otherwise, according to the terms of the Securities and the Indenture, the
Company has unconditionally guaranteed the Guaranteed Obligations on a senior
unsecured basis pursuant to the terms of the Indenture.
5. Optional Redemption
Except as set forth in this paragraph 5 and in paragraph 6,
the Issuer and the Company may not redeem the Securities.
The Securities may be redeemed, in whole at any time or in
part from time to time, at the option of the Issuer, upon not less than 30 nor
more than 60 days' prior notice mailed by first-class mail to each Holder's
registered address, at a redemption price equal to the greater of (i) 100% of
the principal amount thereof plus accrued and unpaid interest and liquidated
damages thereon, if any, 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) and (ii) the sum of (x) the present values of the
remaining scheduled payments of principal and interest thereon from the
redemption date to the maturity date (except for currently accrued but unpaid
interest) discounted to the redemption date on a semi-annual basis (assuming a
360-day year consisting of twelve 30-day months) at the Treasury Rate plus 50
basis points and (y) accrued and unpaid interest, if any, to the redemption
date.
In addition, prior to June 15, 2004, the Issuer may, on one or
more occasions, redeem up to a maximum of 35% of the original aggregate
principal amount of the Securities (calculated giving effect to any issuance of
Additional Securities) with the Net Cash Proceeds of one or more Equity
Offerings by the Company to the extent the Net Cash Proceeds thereof are
contributed to the Issuer or used to purchase Capital Stock (other than
Disqualified Stock) of the Issuer from the Issuer, at a redemption price equal
to 109.25% of the principal amount thereof, plus accrued and unpaid interest and
liquidated damages, if any, thereon to the redemption date (subject to the right
of Holders of record on the relevant record date to receive interest and
liquidated damages, if any,
8
due on the relevant interest payment date); provided, however, that after giving
effect to any such redemption, at least 65% of the original aggregate principal
amount of the Securities (calculated giving effect to any issuance of Additional
Securities) remains outstanding; and any such redemption shall be made within 60
days of such Equity Offering upon not less than 30 nor more than 60 days notice
mailed to each Holder of Securities being redeemed and otherwise in accordance
with the procedures set forth in the Indenture.
6. Redemption for Changes in Withholding Taxes
(a) The Securities shall be subject to redemption at the
option of the Issuer, at any time, as a whole but not in part, upon not less
than 30 nor more than 60 days' notice, at 100% of the principal amount thereof,
plus accrued and unpaid interest (if any) and liquidated damages to the date of
redemption (subject to the right of Holders of record on the relevant record
date to receive interest due on the relevant interest payment date), in the
event the Issuer or the Company has become or would become obligated to pay, on
the next date on which any amount would be payable with respect to the
Securities or the Note Guarantee, any Additional Amounts as a result of (i) a
change in or an amendment to the laws (including any regulations promulgated
thereunder) of any Relevant Taxing Jurisdiction or (ii) any change in or
amendment to any official position regarding the application or interpretation
of such laws or regulations, which change or amendment is announced or becomes
effective on or after the date of this Indenture; and in the case of clauses (i)
and (ii) above, the Issuer or the Company cannot avoid such obligation by taking
reasonable measures available to the Issuer or the Company.
(b) Prior to the notice of redemption given in accordance with
the foregoing paragraph 6(a), the Issuer or the Company shall deliver to the
Trustee an Officers' Certificate to the effect that the Issuer or the Company
cannot avoid the Issuer's or the Company's obligation to pay Additional Amounts
by taking reasonable measures available to the Issuer or the Company. The Issuer
or the Company shall also deliver an opinion of independent legal counsel of
recognized standing stating that the Issuer or the Company would be obligated to
pay Additional Amounts as a result of a change in tax laws or regulations or the
application or interpretation of such laws or regulations.
7. Additional Amounts.
(a) All payments made under or with respect to the Securities
and the Note Guarantee shall be made free and clear of and without withholding
or deduction for or on account of any present or future tax, duty, levy, impost,
assessment or other governmental charge (including penalties, interest and other
liabilities related thereto) (hereinafter "Taxes") imposed or levied by or on
behalf of the government of the United Kingdom or any political subdivision or
any authority or agency therein or thereof having power to
9
tax, or within any other jurisdiction in which we are organized or are otherwise
resident for tax purposes or any jurisdiction from or through which payment is
made (in each case, other than the United States or any political subdivision or
taxing authority thereof) (each a "Relevant Taxing Jurisdiction"), unless the
Issuer or the Company is required to withhold or deduct Taxes by law or by the
interpretation or administration thereof. If the Issuer or Company is so
required to withhold or deduct any amount for or on account of Taxes imposed by
a Relevant Taxing Jurisdiction from any payment made under or with respect to
the Securities or the Note Guarantee, the Issuer or the Company shall pay such
additional amounts ("Additional Amounts") as may be necessary so that the net
amount received by the Holders (including Additional Amounts) after such
withholding or deduction will not be less than the amount the Holders would have
received if such Taxes had not been withheld or deducted; provided, however,
that the foregoing obligation to pay Additional Amounts does not apply to (i)
any Taxes that would not have been so imposed but for the existence of any
present or former connection between the relevant Holder (or between a
fiduciary, settlor, beneficiary, member or shareholder of, or possessor of power
over the relevant Holder, if the relevant Holder is an estate, nominee, trust or
corporation) and the Relevant Taxing Jurisdiction (other than the mere receipt
of such payment or the ownership or holding outside of the Relevant Taxing
Jurisdiction of such Securities); or (ii) any estate, inheritance, gift, sales,
excise, transfer, personal property tax or similar tax, assessment or
governmental charge; nor shall the Issuer or the Company be required to pay
Additional Amounts (1) if the payment could have been made without such
deduction or withholding if the beneficiary of the payment had presented the
Security for payment within 30 days after the date on which such payment or such
Securities became due and payable or the date on which payment thereof is duly
provided for, whichever is later (except to the extent that the Holder would
have been entitled to Additional Amounts had the Securities been presented on
the last day of such 30 day period), or (2) with respect to any payment of
principal of (or premium, if any, on) or interest on such Securities to any
Holder who is a fiduciary or partnership or any person other than the sole
beneficial owner of such payment, to the extent that a beneficiary or settlor
with respect to such fiduciary, a member of such a partnership or the beneficial
owner of such payment would not have been entitled to the Additional Amounts had
such beneficiary, settlor, member or beneficial owner been the actual Holder of
such Securities.
(b) Upon request, the Issuer or the Company shall provide the
Trustee with official receipts or other documentation satisfactory to the
Trustee evidencing the payment of the Taxes with respect to which Additional
Amounts are paid.
(c) Whenever in this Indenture there is mentioned, in any
context: (i) the payment of principal; (ii) purchase prices in connection with a
purchase of Securities; (iii) interest; or (iv) any other amount payable on or
with respect to any of the Securities, such reference shall be deemed to include
payment of Additional Amounts as required
10
under this paragraph 7 to the extent that, in such context, Additional Amounts
are, were or would be payable in respect thereof.
(d) The Issuer or the Company shall pay any present or future
stamp, court or documentary taxes or any other excise or property taxes, charges
or similar levies that arise in any jurisdiction from the execution, delivery,
enforcement or registration of the Securities, the Note Guarantee, this
Indenture or any other document or instrument in relation thereof, or the
receipt of any payments with respect to the Securities or the Note Guarantee,
excluding such taxes, charges or similar levies imposed by any jurisdiction
outside of the United Kingdom, the jurisdiction of incorporation of any
successor of the Company or any jurisdiction in which a paying agent is located,
and we will agree to indemnify the Holders for any such taxes paid by such
Holders.
(e) The obligations described above shall survive any
termination, defeasance or discharge of this Indenture and shall apply mutatis
mutandis to any jurisdiction in which any successor Person to the Company is
organized or any political subdivision or taxing authority or agency thereof or
therein (other than the United States or any political subdivision or taxing
authority thereof).
8. Sinking Fund
The Securities are not subject to any sinking fund.
9. Notice of Redemption
Notice of redemption will be mailed by first-class mail at
least 30 days but not more than 60 days before the redemption date to each
Holder of Securities to be redeemed at his or her registered address. Securities
in denominations larger than $1,000 may be redeemed in part but only in whole
multiples of $1,000. If money sufficient to pay the redemption price of and
accrued and unpaid interest and liquidated damages, if any, on all Securities
(or portions thereof) to be redeemed on the redemption date is deposited with
the Paying Agent on or before the redemption date and certain other conditions
are satisfied, on and after such date interest ceases to accrue on such
Securities (or such portions thereof) called for redemption.
10. Repurchase of Securities at the Option of Holders upon Change of
Control and Asset Dispositions
Upon a Change of Control, any Holder of Securities will have
the right, subject to certain conditions specified in the Indenture, to cause
the Issuer to repurchase 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 and liquidated damages, if any, to
the date of repurchase (subject to the right of Holders of
11
record on the relevant record date to receive interest due and liquidated
damages, if any, on the relevant interest payment date that is on or prior to
the date of purchase) as provided in, and subject to the terms of, the
Indenture.
In accordance with Section 4.06 of the Indenture, the Issuer
will be required to offer to purchase Securities upon the occurrence of certain
events.
11. Denominations; Transfer; Exchange
The Securities are in registered form without coupons in
denominations of $1,000 and whole multiples of $1,000. A Holder may transfer or
exchange Securities in accordance with the Indenture. Upon any transfer or
exchange, the Registrar and the Trustee may require a Holder, among other
things, to furnish appropriate endorsements or transfer documents and to pay any
taxes required by law or permitted by the Indenture. The Registrar need not
register the transfer of or exchange any Securities selected for redemption
(except, in the case of a Security to be redeemed in part, the portion of the
Security not to be redeemed) or to transfer or exchange any Securities for a
period of 15 days prior to a selection of Securities to be redeemed.
12. Persons Deemed Owners
Except as provided in paragraph 2 hereof, the registered
Holder of this Security may be treated as the owner of it for all purposes.
13. Unclaimed Money
If money for the payment principal, interest or liquidated
damages, if any, remains unclaimed for two years, the Trustee and the Paying
Agent shall pay the money back to the Issuer at its written request unless an
abandoned property law designates another Person. After any such payment,
Holders entitled to the money must look to the Issuer for payment as general
creditors and the Trustee and the Paying Agent shall have no further liability
with respect to such monies.
14. Discharge and Defeasance
Subject to certain conditions, the Issuer at any time may
terminate some of or all its obligations under the Securities and the Indenture
if the Issuer deposits with the Trustee money or U.S. Government Obligations for
the payment of principal of, and interest and liquidated damages, if any, on,
the Securities to redemption or maturity, as the case may be.
12
15. Amendment, Waiver
Subject to certain exceptions set forth in the Indenture, (i)
the Indenture or the Securities may be amended without prior notice to any
Holder but with the written consent of the Holders of at least a majority in
aggregate principal amount of the outstanding Securities and (ii) any default
may be waived with the written consent of the Holders of at least a majority in
principal amount of the outstanding Securities. Subject to certain exceptions
set forth in the Indenture, without the consent of any Holder, the Issuer, the
Company and the Trustee may amend the Indenture or the Securities (i) to cure
any ambiguity, omission, defect or inconsistency; (ii) to comply with Article 5
of the Indenture; (iii) to provide for uncertificated Securities in addition to
or in place of certificated Securities; (iv) to add additional Guarantees with
respect to the Securities; (v) to secure the Securities; (vi) to add additional
covenants or to surrender rights and powers conferred upon the Company or the
Issuer; (vii) to comply with the requirements of the SEC in order to effect or
maintain the qualification of the Indenture under the TIA; (viii) to make any
change that does not adversely affect the rights of any Holder; (ix) to provide
for the issuance of the Exchange Securities, Private Exchange Securities, or
Additional Securities; or (x) to evidence and provide the acceptance of the
appointment of a successor Trustee under the Indenture.
16. Defaults and Remedies
If an Event of Default occurs (other than an Event of Default
relating to certain events of bankruptcy, insolvency or reorganization of the
Company or the Issuer) and is continuing, the Trustee or the Holders of at least
25% in principal amount of the outstanding Securities may declare the principal
of and accrued but unpaid interest on all the Securities to be due and payable.
If an Event of Default relating to certain events of bankruptcy, insolvency or
reorganization of the Company or the Issuer occurs, the principal of and
interest on all the Securities shall become immediately due and payable without
any declaration or other act on the part of the Trustee or any Holders. Under
certain circumstances, the Holders of a majority in principal amount of the
outstanding Securities may rescind any such acceleration with respect to the
Securities and its consequences.
If an Event of Default occurs and is continuing, the Trustee
shall be under no obligation to exercise any of the rights or powers under the
Indenture at the request or direction of any of the Holders unless such Holders
have offered to the Trustee reasonable indemnity or security against any loss,
liability or expense and certain other conditions are complied with. Except to
enforce the right to receive payment of principal, premium (if any) or interest
when due, no Holder may pursue any remedy with respect to the Indenture or the
Securities unless (i) such Holder has previously given the Trustee notice that
an Event of Default is continuing, (ii) Holders of at least 25% in principal
amount of the outstanding Securities have requested the Trustee in writing to
pursue the remedy,
13
(iii) such Holders have offered the Trustee reasonable security or indemnity
against any loss, liability or expense, (iv) the Trustee has not complied with
such request within 60 days after the receipt of the request and the offer of
security or indemnity and (v) the Holders of a majority in principal amount of
the outstanding Securities have not given the Trustee a direction inconsistent
with such request within such 60-day period. Subject to certain restrictions,
the Holders of a majority in principal amount of the outstanding Securities are
given the right to direct the time, method and place of conducting any
proceeding for any remedy available to the Trustee or of exercising any trust or
power conferred on the Trustee. The Trustee, however, may refuse to follow any
direction that conflicts with law or the Indenture or that the Trustee
determines is unduly prejudicial to the rights of any other Holder or that would
involve the Trustee in personal liability. Prior to taking any action under the
Indenture, the Trustee shall be entitled to indemnification satisfactory to it
in its sole discretion against all losses and expenses caused by taking or not
taking such action.
17. Trustee Dealings with the Issuer
Subject to certain limitations imposed by the TIA, the Trustee
under the Indenture, in its individual or any other capacity, may become the
owner or pledgee of Securities and may otherwise deal with and collect
obligations owed to it by the Issuer or its Affiliates and may otherwise deal
with the Issuer or its Affiliates with the same rights it would have if it were
not Trustee.
18. No Recourse Against Others
A director, officer, employee or stockholder, as such, of the
Issuer or the Company shall not have any liability for any obligations of the
Issuer under the Securities or the Indenture or for any claim based on, in
respect of or by reason of such obligations or their creation. By accepting a
Security, each Holder waives and releases all such liability. The waiver and
release are part of the consideration for the issue of the Securities.
19. 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.
20. 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
14
entireties), JT TEN (=joint tenants with rights of survivorship and not as
tenants in common), CUST (=custodian), and U/G/M/A (=Uniform Gift to Minors
Act).
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.
22. CUSIP and ISIN Numbers
----------------------
The Issuer has caused CUSIP and ISIN numbers to be printed on
the Securities and has directed the Trustee to use CUSIP and ISIN numbers 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.
The Issuer will furnish to any Holder of Securities upon
written request and without charge to the Holder a copy of the Indenture which
has in it the text of this Security.
15
[FORM OF NOTE GUARANTEE]
GUARANTEE OF MILLENNIUM CHEMICALS INC.
For value received, the Company hereby irrevocably and
unconditionally guarantees on a senior unsecured basis, as a primary obligor and
not merely as a surety, to the Holder of the Security upon which this Note
Guarantee is endorsed and to the Trustee and its successors and assigns (i) the
full and punctual payment when due, whether at Stated Maturity, by acceleration,
by redemption or otherwise, of all obligations of the Issuer and (ii) the full
and punctual performance within applicable grace periods of all other
obligations of the Issuer whether for fees, expenses, indemnification or
otherwise under the Indenture and the Securities, all in accordance with Article
10 of the Indenture.
This Note Guarantee shall not be valid or become obligatory
for any purpose until the certificate of authentication on the Securities upon
which this Note Guarantee is noted shall have been executed by the Trustee under
the Indenture.
This Note Guarantee 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.
This Note Guarantee is subject to release and the other terms
set forth in the Indenture.
IN WITNESS WHEREOF, the Company has caused this instrument to
be duly executed by the manual or facsimile signature of its authorized officers
and its corporate seal to be affixed or reproduced hereon.
Dated: MILLENNIUM CHEMICALS INC.,
By:
-----------------------------------
Name:
Title:
[SEAL]
Attest:
-----------------------------------------------
Authorized Officer
16
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.
Signature Guarantee: ________________________________
Date: _________________________ ________________________________
Signature must be guaranteed Signature of Signature
by a participant in a Guarantee
recognized signature guaranty
medallion program or other
signature guarantor acceptable
to the Trustee
17
CERTIFICATE TO BE DELIVERED UPON EXCHANGE OR REGISTRATION OF
TRANSFER RESTRICTED SECURITIES
This certificate relates to $_________ principal amount of Securities held in
(check applicable space) ____ book-entry or _____ definitive form by the
undersigned.
The undersigned (check one box below):
[ ] has requested the Trustee by written order to deliver in exchange for
its beneficial interest in the Global Security held by the Depositary a
Security or Securities in definitive, registered form of authorized
denominations and an aggregate principal amount equal to its beneficial
interest in such Global Security (or the portion thereof indicated
above);
[ ] has requested the Trustee by written order to exchange or register the
transfer of a Security or Securities.
In connection with any transfer of any of the Securities evidenced by this
certificate occurring prior to the expiration of the period referred to in Rule
144(k) under the Securities Act, the undersigned confirms that such Securities
are being transferred in accordance with its terms:
CHECK ONE BOX BELOW
(1) [ ] to the Issuer (or a subsidiary of the Issuer); or
(2) [ ] to the Registrar for registration in the name of the
Holder, without transfer; or
(3) [ ] pursuant to an effective registration statement under
the Securities Act of 1933; or
(4) [ ] inside the United States to a "qualified
institutional buyer" (as defined in Rule 144A under
the Securities Act of 1933) that purchases for its
own account or for the account of a qualified
institutional buyer to whom notice is given that such
transfer is being made in reliance on Rule 144A, in
each case pursuant to and in compliance with Rule
144A under the Securities Act of 1933; or
(5) [ ] outside the United States in an offshore transaction
within the meaning of Regulation S under the Securities
Act in compliance with Rule 904 under the Securities Act
of 1933 and such Security
18
shall be held immediately after the transfer through
Euroclear or Clearstream until the expiration of the
Restricted Period (as defined in the Indenture); or
(6) [ ] to an institutional "accredited investor" (as
defined in Rule 501(a)(1), (2), (3) or (7) under the
Securities Act of 1933) that has furnished to the
Trustee a signed letter containing certain
representations and agreements; or
(7) [ ] pursuant to another available exemption from registration
provided by Rule 144 under the Securities Act of 1933.
Unless one of the boxes is checked, the Trustee will refuse to register
any of the Securities evidenced by this certificate in the name of any
Person other than the registered Holder thereof; provided, however,
that if box (5), (6) or (7) is checked, the Trustee may require, prior
to registering any such transfer of the Securities, such legal
opinions, certifications and other information as the Issuer has
reasonably requested to confirm that such transfer is being made
pursuant to an exemption from, or in a transaction not subject to, the
registration requirements of the Securities Act of 1933.
------------------------
Your Signature
Signature Guarantee:
Date: __________________________ __________________________
Signature must be guaranteed Signature of Signature
by a participant in a Guarantee
recognized signature guaranty
medallion program or other
signature guarantor acceptable
to the Trustee
------------------------------------------------------------
19
TO BE COMPLETED BY PURCHASER IF (4) ABOVE IS CHECKED.
The undersigned represents and warrants that it is purchasing
this Security for its own account or an account with respect to which it
exercises sole investment discretion and that it and any such account is a
"qualified institutional buyer" within the meaning of Rule 144A under the
Securities Act of 1933, and is aware that the sale to it is being made in
reliance on Rule 144A and acknowledges that it has received such information
regarding the Issuer as the undersigned has requested pursuant to Rule 144A or
has determined not to request such information and that it is aware that the
transferor is relying upon the undersigned's foregoing representations in order
to claim the exemption from registration provided by Rule 144A.
Dated: ________________ ______________________________
NOTICE: To be executed by
an executive officer
20
[TO BE ATTACHED TO GLOBAL SECURITIES]
SCHEDULE OF INCREASES OR DECREASES IN GLOBAL SECURITY
The initial principal amount of this Global Security is $[ ]. The
following increases or decreases in this Global Security have been made:
Date of Amount of decrease in Amount of increase in Principal amount of this Signature of authorized
Exchange Principal Amount of this Principal Amount of this Global Security following signatory of Trustee or
Global Security Global Security such decrease or increase Securities Custodian
21
OPTION OF HOLDER TO ELECT PURCHASE
If you want to elect to have this Security purchased by the Issuer
pursuant to Section 4.06 (Asset Disposition) or 4.08 (Change of Control) of the
Indenture, check the box:
Asset Disposition [ ] Change of Control [ ]
If you want to elect to have only part of this Security purchased by
the Issuer pursuant to Section 4.06 or 4.08 of the Indenture, state the amount
($1,000 or an integral multiple thereof):
$
Date: Your Signature:
------------------ ------------------
(Sign exactly as your name appears on the other side of the Security)
Signature Guarantee:
---------------------------------------
Signature must be guaranteed by a participant in a
recognized signature guaranty medallion program or
other signature guarantor acceptable to the Trustee
EXHIBIT B
[FORM OF FACE OF EXCHANGE SECURITY]
[Global Securities Legend]
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF
THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), NEW YORK, NEW
YORK, TO THE ISSUER OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR
PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR
SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY
PAYMENT IS MADE TO CEDE & CO., OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN
AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR
VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED
OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
TRANSFERS OF THIS GLOBAL SECURITY SHALL BE LIMITED TO TRANSFERS IN
WHOLE, BUT NOT IN PART, TO DTC, TO NOMINEES OF DTC OR TO A SUCCESSOR THEREOF OR
SUCH SUCCESSOR'S NOMINEE AND TRANSFERS OF PORTIONS OF THIS GLOBAL SECURITY SHALL
BE LIMITED TO TRANSFERS MADE IN ACCORDANCE WITH THE RESTRICTIONS SET FORTH IN
THE INDENTURE REFERRED TO ON THE REVERSE HEREOF.
2
No. $
----------
9 1/4% Senior Note due 2008
CUSIP No.
------
ISIN No.
-----
MILLENNIUM AMERICA INC., a Delaware corporation, promises to pay to
[Cede & Co.], or registered assigns, the principal sum [of Dollars]
[listed on the Schedule of Increases or Decreases in Global Security attached
hereto](2) on June 15, 2008.
Interest Payment Dates: June 15 and December 15.
Record Dates: June 1 and December 1.
--------
(2) Use the Schedule of Increases and Decreases language if Note is in Global
Form.
3
Additional provisions of this Security are set forth on the other side
of this Security.
IN WITNESS WHEREOF, the parties have caused this instrument to be duly
executed.
MILLENNIUM AMERICA INC.,
by
-------------------------------------
Name:
Title:
by
-------------------------------------
Name:
Title:
Dated:
TRUSTEE'S CERTIFICATE OF
AUTHENTICATION
THE BANK OF NEW YORK,
as Trustee, certifies
that this is one of
the Securities referred
to in the Indenture.
by
-----------------------------
Authorized Signatory
-----------------
*/ If the Security is to be issued in global form, add the Global Securities
Legend and the attachment from Exhibit A captioned "TO BE ATTACHED TO GLOBAL
SECURITIES - SCHEDULE OF INCREASES OR DECREASES IN GLOBAL SECURITY".
4
[FORM OF REVERSE SIDE OF EXCHANGE SECURITY]
9 1/4% Senior Note due 2008
1. Interest.
MILLENNIUM AMERICA INC., a Delaware 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 shall pay interest
semiannually on June 15 and December 15 of each year. Interest on the Securities
shall accrue from the most recent date to which interest has been paid or duly
provided for or, if no interest has been paid or duly provided for, from June
18, 2001, until the principal hereof is due. Interest shall be computed on the
basis of a 360-day year of twelve 30-day months. The Issuer shall pay interest
on overdue principal at the rate borne by the Securities plus 1% per annum, and
it shall pay interest on overdue installments of interest at the same rate to
the extent lawful.
2. Method of Payment
The Issuer shall pay interest on the Securities (except defaulted
interest) to the Persons who are registered Holders at the close of business on
the June 1 or December 1 next preceding the interest payment date even if
Securities are canceled after the record date and on or before the interest
payment date. Holders must surrender Securities to a Paying Agent to collect
principal payments. The Issuer shall 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 and
interest) shall be made by wire transfer of immediately available funds to the
accounts specified by The Depository Trust Company or any successor depositary.
The Issuer will make all payments in respect of a certificated Security
(including principal, premium, if any, and interest), at the office of the
Paying Agent, except that, at the option of the Issuer, payment of interest may
be made by mailing a check to the registered address of each Holder thereof;
provided, however, that payments on the Securities may also be made, in the case
of a Holder of at least $1,000,000 aggregate principal amount of Securities, by
wire transfer to a U.S. dollar account maintained by the payee with a bank in
the United States if such Holder elects payment by wire transfer by giving
written notice to the Trustee or the Paying Agent to such effect designating
such account no later than 30 days immediately preceding the relevant due date
for payment (or such other date as the Trustee may accept in its discretion).
5
3. Paying Agent and Registrar
Initially, The Bank of New York, a New York banking corporation (the
"Trustee"), will act as Paying Agent and Registrar. The Issuer may appoint and
change any Paying Agent or Registrar without notice. The Issuer, the Company or
any of the Company's 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 June
18, 2001 (the "Indenture"), among the Issuer, the Company and the Trustee. The
terms of the Securities include those stated in the Indenture and those made
part of the Indenture by reference to the Trust Indenture Act of 1939 (15 U.S.C.
'SS''SS' 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 terms and provisions
of the Indenture, and Holders (as defined in the Indenture) are referred to the
Indenture and the TIA for a statement of such terms and provisions.
The Securities are senior unsecured obligations of the Issuer. This
Security is one of the [Exchange] [Additional] Securities referred to in the
Indenture. The Securities include the Original Securities, the Additional
Securities and any Exchange Securities and Private Exchange Securities issued in
exchange for the Initial Securities pursuant to the Indenture. The Original
Securities, the Additional Securities, the Exchange Securities and the Private
Exchange Securities are treated as a single class of securities under the
Indenture. The Indenture imposes certain limitations on the ability of the
Issuer, the Company and its Restricted Subsidiaries to, among other things, make
certain Investments and other Restricted Payments, pay dividends and other
distributions, incur Indebtedness, enter into consensual restrictions upon the
payment of certain dividends and distributions by such Restricted Subsidiaries,
issue or sell shares of capital stock of such Restricted Subsidiaries, enter
into or permit certain transactions with Affiliates, create or incur Liens,
enter into sale/leaseback transactions and make Asset Sales. The Indenture also
imposes limitations on the ability of the Issuer and the Company to consolidate
or merge with or into any other Person or convey, transfer or lease all or
substantially all of its property.
To guarantee the due and punctual payment of the principal and
interest, if any, on the Securities and all other amounts payable by the Issuer
under the Indenture and the Securities when and as the same shall be due and
payable, whether at maturity, by acceleration or otherwise, according to the
terms of the Securities and the Indenture, the Company has unconditionally
guaranteed the Guaranteed Obligations on a senior unsecured basis pursuant to
the terms of the Indenture.
6
5. Optional Redemption
Except as set forth in this paragraph 5 and in paragraph 6, the Issuer
and the Company may not redeem the Securities.
The Securities may be redeemed, in whole at any time or in part from
time to time, at the option of the Issuer, upon not less than 30 nor more than
60 days' prior notice mailed by first-class mail to each Holder's registered
address, at a redemption price equal to the greater of (i) 100% of the principal
amount thereof plus accrued and unpaid interest and liquidated damages thereon,
if any, 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) and (ii) the sum of (x) the present values of the remaining scheduled
payments of principal and interest thereon from the redemption date to the
maturity date (except for currently accrued but unpaid interest) discounted to
the redemption date on a semi-annual basis (assuming a 360-day year consisting
of twelve 30-day months) at the Treasury Rate plus 50 basis points and (y)
accrued and unpaid interest, if any, to the redemption date.
In addition, prior to June 15, 2004, the Issuer may, on one or more
occasions, redeem up to a maximum of 35% of the original aggregate principal
amount of the Securities (calculated giving effect to any issuance of Additional
Securities) with the Net Cash Proceeds of one or more Equity Offerings by the
Company to the extent the Net Cash Proceeds thereof are contributed to the
Issuer or used to purchase Capital Stock (other than Disqualified Stock) of the
Issuer from the Issuer, at a redemption price equal to 109.25% of the principal
amount thereof, plus accrued and unpaid interest and liquidated damages thereon,
if any, 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); provided, however, that after giving effect to any such redemption, at
least 65% of the original aggregate principal amount of the Securities
(calculated giving effect to any issuance of Additional Securities) remains
outstanding; and any such redemption shall be made within 60 days of such Equity
Offering upon not less than 30 nor more than 60 days notice mailed to each
Holder of Securities being redeemed and otherwise in accordance with the
procedures set forth in the Indenture.
6. Redemption for Changes in Withholding Taxes
(a) The Securities shall be subject to redemption at the option of the
Issuer or the Company, at any time, as a whole but not in part, upon not less
than 30 nor more than 60 days' notice, at 100% of the principal amount thereof,
plus accrued and unpaid interest (if any) and liquidated damages to the date of
redemption (subject to the right of Holders of record on the relevant record
date to receive interest due on the relevant interest payment date), in the
event the Issuer or the Company has become or would become obligated to pay, on
the next date on which any amount would be payable with
7
respect to the Securities or the Note Guarantee, any Additional Amounts as a
result of (i) a change in or an amendment to the laws (including any regulations
promulgated thereunder) of any Relevant Taxing Jurisdiction or (ii) any change
in or amendment to any official position regarding the application or
interpretation of such laws or regulations, which change or amendment is
announced or becomes effective on or after the date of this Indenture; and in
the case of clauses (i) and (ii) above, the Issuer or the Company cannot avoid
such obligation by taking reasonable measures available to the Issuer or the
Company.
(b) Prior to the notice of redemption given in accordance with the
foregoing paragraph 6(a), the Issuer or the Company shall deliver to the Trustee
an Officers' Certificate to the effect that the Issuer or the Company cannot
avoid the Issuer's or the Company's obligation to pay Additional Amounts by
taking reasonable measures available to the Issuer or the Company. The Issuer or
the Company shall also deliver an opinion of independent legal counsel of
recognized standing stating that the Issuer or the Company would be obligated to
pay Additional Amounts as a result of a change in tax laws or regulations or the
application or interpretation of such laws or regulations.
7. Additional Amounts.
(a) All payments made under or with respect to the Securities and the
Note Guarantee shall be made free and clear of and without withholding or
deduction for or on account of any present or future tax, duty, levy, impost,
assessment or other governmental charge (including penalties, interest and other
liabilities related thereto) (hereinafter "Taxes") imposed or levied by or on
behalf of the government of the United Kingdom or any political subdivision or
any authority or agency therein or thereof having power to tax, or within any
other jurisdiction in which we are organized or are otherwise resident for tax
purposes or any jurisdiction from or through which payment is made (in each
case, other than the United States or any political subdivision or taxing
authority thereof) (each a "Relevant Taxing Jurisdiction"), unless the Issuer or
the Company is required to withhold or deduct Taxes by law or by the
interpretation or administration thereof. If the Issuer or Company is so
required to withhold or deduct any amount for or on account of Taxes imposed by
a Relevant Taxing Jurisdiction from any payment made under or with respect to
the Securities or the Note Guarantee, the Issuer or the Company shall pay such
additional amounts ("Additional Amounts") as may be necessary so that the net
amount received by the Holders (including Additional Amounts) after such
withholding or deduction will not be less than the amount the Holders would have
received if such Taxes had not been withheld or deducted; provided, however,
that the foregoing obligation to pay Additional Amounts does not apply to (i)
any Taxes that would not have been so imposed but for the existence of any
present or former connection between the relevant Holder (or between a
fiduciary, settlor, beneficiary, member or shareholder of, or possessor of power
over the relevant Holder, if the relevant Holder is an estate, nominee, trust or
corporation) and the Relevant Taxing Jurisdiction (other than the mere receipt
of
8
such payment or the ownership or holding outside of the Relevant Taxing
Jurisdiction of such Securities); or (ii) any estate, inheritance, gift, sales,
excise, transfer, personal property tax or similar tax, assessment or
governmental charge; nor shall the Issuer or the Company be required to pay
Additional Amounts (1) if the payment could have been made without such
deduction or withholding if the beneficiary of the payment had presented the
Security for payment within 30 days after the date on which such payment or such
Securities became due and payable or the date on which payment thereof is duly
provided for, whichever is later (except to the extent that the Holder would
have been entitled to Additional Amounts had the Securities been presented on
the last day of such 30 day period), or (2) with respect to any payment of
principal of (or premium, if any, on) or interest on such Securities to any
Holder who is a fiduciary or partnership or any person other than the sole
beneficial owner of such payment, to the extent that a beneficiary or settlor
with respect to such fiduciary, a member of such a partnership or the beneficial
owner of such payment would not have been entitled to the Additional Amounts had
such beneficiary, settlor, member or beneficial owner been the actual Holder of
such Securities.
(b) Upon request, the Issuer or the Company shall provide the Trustee
with official receipts or other documentation satisfactory to the Trustee
evidencing the payment of the Taxes with respect to which Additional Amounts are
paid.
(c) Whenever in this Indenture there is mentioned, in any context: (i)
the payment of principal; (ii) purchase prices in connection with a purchase of
Securities; (iii) interest; or (iv) any other amount payable on or with respect
to any of the Securities, such reference shall be deemed to include payment of
Additional Amounts as required under this paragraph 7 to the extent that, in
such context, Additional Amounts are, were or would be payable in respect
thereof.
(d) The Issuer or the Company shall pay any present or future stamp,
court or documentary taxes or any other excise or property taxes, charges or
similar levies that arise in any jurisdiction from the execution, delivery,
enforcement or registration of the Securities, the Note Guarantee, this
Indenture or any other document or instrument in relation thereof, or the
receipt of any payments with respect to the Securities or the Note Guarantee,
excluding such taxes, charges or similar levies imposed by any jurisdiction
outside of the United Kingdom, the jurisdiction of incorporation of any
successor of the Company or any jurisdiction in which a paying agent is located,
and we will agree to indemnify the Holders for any such taxes paid by such
Holders.
(e) The obligations described above shall survive any termination,
defeasance or discharge of this Indenture and shall apply mutatis mutandis to
any jurisdiction in which any successor Person to the Company is organized or
any political subdivision or taxing authority or agency thereof or therein
(other than the United States or any political subdivision or taxing authority
thereof).
9
8. Sinking Fund
The Securities are not subject to any sinking fund.
9. Notice of Redemption
Notice of redemption will be mailed by first-class mail at least 30
days but not more than 60 days before the redemption date to each Holder of
Securities to be redeemed at his or her registered address. Securities in
denominations larger than $1,000 may be redeemed in part but only in whole
multiples of $1,000. If money sufficient to pay the redemption price of and
accrued and unpaid interest and liquidated damages, if any, on all Securities
(or portions thereof) to be redeemed on the redemption date is deposited with
the Paying Agent on or before the redemption date and certain other conditions
are satisfied, on and after such date interest ceases to accrue on such
Securities (or such portions thereof) called for redemption.
10. Repurchase of Securities at the Option of Holders upon Change of Control and
Asset Dispositions
Upon a Change of Control, any Holder of Securities will have the right,
subject to certain conditions specified in the Indenture, to cause the Issuer to
repurchase 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 and liquidated damages, if any, to the date of
repurchase (subject to the right of Holders of record on the relevant record
date to receive interest due on the relevant interest payment date that is on or
prior to the date of purchase) as provided in, and subject to the terms of, the
Indenture.
In accordance with Section 4.06 of the Indenture, the Issuer will be
required to offer to purchase Securities upon the occurrence of certain events.
11. Denominations; Transfer; Exchange
The Securities are in registered form without coupons in denominations
of $1,000 and whole multiples of $1,000. A Holder may transfer or exchange
Securities in accordance with the Indenture. Upon any transfer or exchange, the
Registrar and the Trustee may require a Holder, among other things, to furnish
appropriate endorsements or transfer documents and to pay any taxes required by
law or permitted by the Indenture. The Registrar need not register the transfer
of or exchange any Securities selected for redemption (except, in the case of a
Security to be redeemed in part, the portion of the Security not to be redeemed)
or to transfer or exchange any Securities for a period of 15 days prior to a
selection of Securities to be redeemed or 15 days before an interest payment
date.
10
12. Persons Deemed Owners
Except as provided in paragraph 2 hereof, the registered Holder of this
Security may be treated as the owner of it for all purposes.
13. Unclaimed Money
If money for the payment of principal or interest remains unclaimed for
two years, the Trustee and the Paying Agent shall pay the money back to the
Issuer at its written request unless an abandoned property law designates
another Person. After any such payment, Holders entitled to the money must look
to the Issuer for payment as general creditors and the Trustee and the Paying
Agent shall have no further liability with respect to such monies.
14. Discharge and Defeasance
Subject to certain conditions, the Issuer at any time may terminate
some of or all its obligations under the Securities and the Indenture if the
Issuer deposits with the Trustee money or U.S. Government Obligations for the
payment of principal and interest on the Securities to redemption or maturity,
as the case may be.
15. Amendment, Waiver
Subject to certain exceptions set forth in the Indenture, (i) the
Indenture or the Securities may be amended without prior notice to any Holder
but with the written consent of the Holders of at least a majority in aggregate
principal amount of the outstanding Securities and (ii) any default may be
waived with the written consent of the Holders of at least a majority in
principal amount of the outstanding Securities. Subject to certain exceptions
set forth in the Indenture, without the consent of any Holder, the Issuer, the
Company and the Trustee may amend the Indenture or the Securities (i) to cure
any ambiguity, omission, defect or inconsistency; (ii) to comply with Article 5
of the Indenture; (iii) to provide for uncertificated Securities in addition to
or in place of certificated Securities; (iv) to add additional Guarantees with
respect to the Securities; (v) to secure the Securities; (vi) to add additional
covenants or to surrender rights and powers conferred upon the Company or the
Issuer; (vii) to comply with the requirements of the SEC in order to effect or
maintain the qualification of the Indenture under the TIA; (viii) to make any
change that does not adversely affect the rights of any Holder; (ix) to provide
for the issuance of the Exchange Securities, Private Exchange Securities, or
Additional Securities; or (x) to evidence and provide the acceptance of a
successor Trustee under the Indenture.
11
16. Defaults and Remedies
If an Event of Default occurs (other than an Event of Default relating
to certain events of bankruptcy, insolvency or reorganization of the Company or
the Issuer) and is continuing, the Trustee or the Holders of at least 25% in
principal amount of the outstanding Securities may declare the principal of and
accrued but unpaid interest on all the Securities to be due and payable. If an
Event of Default relating to certain events of bankruptcy, insolvency or
reorganization of the Company or the Issuer occurs, the principal of and
interest on all the Securities shall become immediately due and payable without
any declaration or other act on the part of the Trustee or any Holders. Under
certain circumstances, the Holders of a majority in principal amount of the
outstanding Securities may rescind any such acceleration with respect to the
Securities and its consequences.
If an Event of Default occurs and is continuing, the Trustee shall be
under no obligation to exercise any of the rights or powers under the Indenture
at the request or direction of any of the Holders unless such Holders have
offered to the Trustee reasonable indemnity or security against any loss,
liability or expense and certain other conditions are complied with. Except to
enforce the right to receive payment of principal, premium (if any) or interest
when due, no Holder may pursue any remedy with respect to the Indenture or the
Securities unless (i) such Holder has previously given the Trustee notice that
an Event of Default is continuing, (ii) Holders of at least 25% in principal
amount of the outstanding Securities have requested the Trustee in writing to
pursue the remedy, (iii) such Holders have offered the Trustee reasonable
security or indemnity against any loss, liability or expense, (iv) the Trustee
has not complied with such request within 60 days after the receipt of the
request and the offer of security or indemnity and (v) the Holders of a majority
in principal amount of the outstanding Securities have not given the Trustee a
direction inconsistent with such request within such 60-day period. Subject to
certain restrictions, the Holders of a majority in principal amount of the
outstanding Securities are given the right to direct the time, method and place
of conducting any proceeding for any remedy available to the Trustee or of
exercising any trust or power conferred on the Trustee. The Trustee, however,
may refuse to follow any direction that conflicts with law or the Indenture or
that the Trustee determines is unduly prejudicial to the rights of any other
Holder or that would involve the Trustee in personal liability. Prior to taking
any action under the Indenture, the Trustee shall be entitled to indemnification
satisfactory to it in its sole discretion against all losses and expenses caused
by taking or not taking such action.
17. Trustee Dealings with the Issuer
Subject to certain limitations imposed by the TIA, the Trustee under
the Indenture, in its individual or any other capacity, may become the owner or
pledgee of Securities and may otherwise deal with and collect obligations owed
to it by the Issuer or
12
its Affiliates and may otherwise deal with the Issuer or its Affiliates with the
same rights it would have if it were not Trustee.
18. No Recourse Against Others
A director, officer, employee or stockholder, as such, of the Issuer or
the Company shall not have any liability for any obligations of the Issuer under
the Securities or the Indenture or for any claim based on, in respect of or by
reason of such obligations or their creation. By accepting a Security, each
Holder waives and releases all such liability. The waiver and release are part
of the consideration for the issue of the Securities.
19. 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.
20. 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 Gift to Minors
Act).
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.
22. CUSIP and ISIN Numbers
The Issuer has caused CUSIP and ISIN numbers to be printed on the
Securities and has directed the Trustee to use CUSIP and ISIN numbers 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.
13
The Issuer will furnish to any Holder of Securities upon written
request and without charge to the Holder a copy of the Indenture which has in it
the text of this Security.
14
[FORM OF NOTE GUARANTEE]
GUARANTEE OF MILLENNIUM CHEMICALS INC.
For value received, the Company hereby irrevocably and unconditionally
guarantees on a senior unsecured basis, as a primary obligor and not merely as a
surety, to the Holder of the Security upon which this Note Guarantee is endorsed
and to the Trustee and its successors and assigns (i) the full and punctual
payment when due, whether at Stated Maturity, by acceleration, by redemption or
otherwise, of all obligations of the Issuer and (ii) the full and punctual
performance within applicable grace periods of all other obligations of the
Issuer whether for fees, expenses, indemnification or otherwise under the
Indenture and the Securities, all in accordance with Article 10 of the
Indenture.
This Note Guarantee shall not be valid or become obligatory for any
purpose until the certificate of authentication on the Securities upon which
this Note Guarantee is noted shall have been executed by the Trustee under the
Indenture.
This Note Guarantee 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.
This Note Guarantee is subject to release and the other terms set forth
in the Indenture.
IN WITNESS WHEREOF, the Company has caused this instrument to be duly
executed by the manual or facsimile signature of its authorized officers and its
corporate seal to be affixed or reproduced hereon.
Dated: MILLENNIUM CHEMICALS INC.,
By:
------------------------------------
Name:
Title:
[SEAL]
Attest:
-----------------------------
Authorized Officer
15
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. Signature
must be guaranteed by a participant in a recognized signature guaranty medallion
program or other signature guarantor acceptable to the Trustee.
Signature Guarantee:
--------------------------------
Date:
------------------- --------------------------
Signature must be guarant Signature of Signature
by a participant in a Guarantee
recognized signature guaranty
medallion program or other
signature guarantor acceptable
to the Trustee
16
OPTION OF HOLDER TO ELECT PURCHASE
If you want to elect to have this Security purchased by the Issuer
pursuant to Section 4.06 (Asset Disposition) or 4.08 (Change of Control) of the
Indenture, check the box:
Asset Disposition [ ] Change of Control [ ]
If you want to elect to have only part of this Security purchased by
the Company pursuant to Section 4.06 or 4.08 of the Indenture, state the amount
($1,000 or an integral multiple thereof):
$
Date: Your Signature:
------------------ ------------------
(Sign exactly as your name appears
on the other side of the Security)
Signature Guarantee:
---------------------------------------
Signature must be guaranteed by a participant in a
recognized signature guaranty medallion program or
other signature guarantor acceptable to the Trustee.
17
[TO BE ATTACHED TO GLOBAL SECURITIES]
SCHEDULE OF INCREASES OR DECREASES IN GLOBAL SECURITY
The initial principal amount of this Global Security is $[ ]. The
following increases or decreases in this Global Security have been made:
Date of Amount of decrease in Amount of increase in Principal amount of this Signature of authorized
Exchange Principal Amount of this Principal Amount of this Global Security following signatory of Trustee or
Global Security Global Security such decrease or increase Securities Custodian
EXHIBIT C
Form of
Transferee Letter of Representation
Millennium Chemicals Inc. and
Millennium America Inc.
▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇
▇.▇. ▇▇▇ ▇▇▇▇
Red Bank, New Jersey 07701
Ladies and Gentlemen:
This certificate is delivered to request a transfer of $ principal
amount of the 9 1/4% Senior Notes due 2008 (the "Securities") of Millennium
America Inc. (the "Issuer"), guaranteed by Millennium Chemicals Inc. (the
"Guarantor").
Upon transfer, the Securities would be registered in the name of the
new beneficial owner as follows:
Name:
------------------------
Address:
---------------------
Taxpayer ID Number:
----------
The undersigned represents and warrants to you that:
1. We are an institutional "accredited investor" (as defined in Rule
501(a)(1), (2), (3) or (7) under the Securities Act of 1933, as amended (the
"Securities Act")) purchasing for our own account or for the account of such an
institutional "accredited investor" at least $250,000 principal amount of the
Securities, and we are acquiring the Securities not with a view to, or for offer
or sale in connection with, any distribution in violation of the Securities Act.
We have such knowledge and experience in financial and business matters as to be
capable of evaluating the merits and risks of our investment in the Securities,
and we invest in or purchase securities similar to the Securities in the normal
course of our business. We, and any accounts for which we are acting, are each
able to bear the economic risk of our or its investment.
2. We understand that the Securities have not been registered under the
Securities Act and, unless so registered, may not be sold except as permitted in
the following sentence. We agree on our own behalf and on behalf of any investor
account for which we are purchasing Securities to offer, sell or otherwise
transfer such Securities prior to the date that is two years after the later of
the date of original issue and the last date on which the Issuer or any
affiliate of the Issuer was the owner of such Securities (or any predecessor
thereto) (the "Resale Restriction
2
Termination Date") only (a) to the Issuer or the Guarantor, (b) pursuant to a
registration statement that has been declared effective under the Securities
Act, (c) in a transaction complying with the requirements of Rule 144A under the
Securities Act ("Rule 144A"), to a person we reasonably believe is a qualified
institutional buyer under Rule 144A (a "QIB") that purchases for its own account
or for the account of a QIB and to whom notice is given that the transfer is
being made in reliance on Rule 144A, (d) pursuant to offers and sales that occur
outside the United States within the meaning of Regulation S under the
Securities Act, (e) to an institutional "accredited investor" within the meaning
of Rule 501(a)(1), (2), (3) or (7) under the Securities Act that is purchasing
for its own account or for the account of such an institutional "accredited
investor," in each case in a minimum principal amount of Securities of $250,000,
or (f) pursuant to any other available exemption from the registration
requirements of the Securities Act, subject in each of the foregoing cases to
any requirement of law that the disposition of our property or the property of
such investor account or accounts be at all times within our or their control
and in compliance with any applicable state securities laws. The foregoing
restrictions on resale will not apply subsequent to the Resale Restriction
Termination Date. If any resale or other transfer of the Securities is proposed
to be made pursuant to clause (e) above prior to the Resale Restriction
Termination Date, the transferor shall deliver a letter from the transferee
substantially in the form of this letter to the Issuer and the Trustee, which
shall provide, among other things, that the transferee is an institutional
"accredited investor" within the meaning of Rule 501(a)(1), (2), (3) or (7)
under the Securities Act and that it is acquiring such Securities for investment
purposes and not for distribution in violation of the Securities Act. Each
purchaser acknowledges that the Issuer and the Trustee reserve the right prior
to the offer, sale or other transfer prior to the Resale Restriction Termination
Date of the Securities pursuant to clause (d), (e) or (f) above to require the
delivery of an opinion of counsel, certifications or other information
satisfactory to the Issuer, the Guarantor and the Trustee.
TRANSFEREE:
-----------------,
by:
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